[2024] UGHCLD 214



# / THE REPT]BLIC OF T]GANDA

# o IN THE HIGH COTIRT OF UGANDA AT KAMPALA

# (LAND DIVISION)

# CIVIL SUIT NO.728 OF 2OI4

BBAALE DAVI PI,AINTIFF

#### VERST]S

KKUBO EDWARD:: =DEFENDANT

## BEFORE: HON. MR. J[ISTICE PHILI,IP ODOKI

#### JUDGMENT

#### Introd uction:

[1] The Plaintiff instituted this suit against the Defendant seeking for, a declaration that he is the rightful owner ofa kibanja measuring approximately 170feets x l20feets located at Kanala Cell, Mutundwe Ward, Makindye Division, Kampala District (hereinafter referred to as 'the suit land'); a declaration that the Defendant is a trespasser onto the suit land; an order to evict the Defendant from the suit land; a permanent injunction to restrain the Defendant from claiming ownership of the suit land; general damages for trespass; interest; and costs of the suit.

# The Plaintiff s case:

[2] The Plaintiffpleaded that he purchased the suit land from Namusoke Maria on the 15d June 2009. Thereafter, he took possession ofthe suit land. Around 2010, the Defendant forcefully entered the suit land claiming that the suit land belongs to him and constructed thereon rentals. The Plaintiff further pleaded that the Defendant has since refused to vacate the suit land. All

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efforts to evict the Defendant, including initiating criminal proceedings at the police and subsequently at Makindye Chief Magistrates Court, have been futile.

#### The Defendant's case:

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[3] The Defendant denied all the allegations of the Plaintiff. He pleaded that the suit land belongs to him having purchased the same from Livingstone Bagigumisa on the 29d January 1991. He pleaded that after purchasing the suit land, he took possession and constructed the foundation for the rentals without any complaint from anybody. In 2009 when he resumed the construction ofthe rentals, that is when the Plaintiff started laying claims on the suit land and initiated criminal proceedings against him. The Defendant further pleaded that his kibanja interest was recognized by the registered propnetor, a one Setumba. Setumba took part ofhis kibanja in exchange for a certificate of title and he remained with the suit land for which Setumba promised to give him a certificate of title but he did not.

#### Iss ues:

[5] The parties filed ajoint scheduling memorandum in which they agreed that the issues for the determination ofthe court should be;

- i. Who of the parties is the la\*4ul owner of the suit land. - ii. What remedies are available to the parties.

# The evidence oresented:

[6] The PlaintitT testified as P. W. 1. He adduced 4 other witnesses. Muwonge Fred who was the chairperson Local Council 1 of Kinala Cell when he purchased the suit land testified as P,W.2; Livingstone Bagiraobusa who sold a kibanja to the Defendant testified P. W.3; Namusoke

Maria who he stated that sold to him the suit land testified as P. W.4; and Mukuye Constantine who was stated to have sold part of the suit land to Namusoke Maria testified as P. W.5.

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[7] ln addition, the Plaintiff adduced 9 documents which were admitted in evidence and marked as exhibits. They were, the sale agreement dated 15s June 2009 between the Plaintiff and Namusoke Maria together with the English translation as PEI and PE2 respectively; a court order from Makindye Chief Magistrates' Court dated l3'h June 2014 as PE3; the judgement in the criminal case at Makindye Chief Magistrates' Court dated l3e June 2014 as PE4, the notice of intention to sue dated 6th November 2014 as PE5; the sale agreement between Mukuye and Namusoke Maria dated 20t March 2007 together with the English translation as PE6 and PE7 respectively; and the sale agreement between Kangave Ssetimba and Namusoke Maria dated 29e July 2007 together with the English tmnslation as PE8 and PE9 respectively.

[8] The Delendant testified as D. W. l. He adduced 3 other witnesses. Kaye Godfrey the former proprietor of St. Mark Primary School as D. W .2; Zaliika Abubaker one of the administrators of the estate of the late Setimba Bulaimu Mpanga as D. W.3; and Ssekitoleko Tonny the chairperson Local Council I of Kinala Cell who replaced Muwonge Fred as D. W.4.

[9] ln addition, the Defendant adduced 12 documents which were admitted in evidence and marked as exhibits. They were, the sale agreement between the Defendant and Livingstone Bagirabusa dated 29G January 199ltogether with its English translation as DEI and E2 respectively; the record ofproceedings ofthe criminal case in the Makindye Chief Magishates' Court as DE3; the judgement of the High Court following an appeal from the decision of Makindye Chief Magistrates' Court as DE4; the letters of administration to the estate of the late Setimba Bulaimu Mpanga granted to the Administrator General dated 206 April 2010 as

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DE5; the letters of administration to the estate of the late Setimba Bulaimu Mpanga granted to Nalumansi Kadija (daughter), Zaliika Abubaker (granddaughter) and Dalawisi Muyomba (granddaughter) dated l9'h November 20 I 9 as DE6; Ce(ificate ofNo Objection dated 146 June 2019 as DE7; renunciation ofthe grant of letters of administration to the Administrator General dated 23'd May 2019 as DE8; the minutes of the meeting of the Administrator General dated l3m June 2019 as DE9; the Certificate of Title of private mailo comprised in Kyadondo Block 265 plot 6696 land at Bunamwaya as DEl0; the statement of search for Block 265 plot 6696 as DE I 1 ; and the demand letter for payment of busuulu dated I ¹ s June 2020 together with its English translation as DEl2.

#### Legal reDresentation:

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[0] At the hearing, the Plaintiffwas represented by Mr. Ronald Bogezi of M/s Kabega, Bogezi & Kukenya Advocates while the Defendant was represented by Ms. Rebecca Nansukusa of lWs Makeera & Co advocates.

#### Legal submissions:

[11] At the close ofthe hearing, the Court gave counsel directives to file written submission, which directives were duly complied with. On issue 1, counsel for the Plaintiff submitted that the sale agreement dated l5d June 2009 between the Plaintiff and Namusoke Maria (PEl and the English translation PE2) clearly shows that the Plaintiff is the owner of the suit land. Counsel argued that the Defendant's claim of the suit land was not backed by any evidence since he failed to produce his original agreement for purchasing the suit land. According to counsel for the Plaintiff, the Defendant's evidence that his agreement was tom by the police is unbelievable since he did not report the incidence to any authority. In addition, counsel submitted that none of the witnesses ofthe said sale was adduced in court by the Defendant.

[ 2] On issue 2, counsel for the Plaintiff submitted that since 2010 the Plaintilfhas been denied use ofthe suit land. Counsel prayed for general damages ofUGX 30,000,000/:, interest at 670 per annum from the time of filing the suit till payment in full and the costs ofthe suit.

[3] In reply, counsel for the Defendant submitted that the Plaintiff claim to have bought the suit land from persons who bought from Kangave Myhamuud who did not have authority to sell the land as per the evidence of D. W.3. Counsel further submitted that the plaintiff pleaded that the land he bought was measuring approximately l T0feets x l20feets and yet in evidence he changed that it was SOfeets x l20feets which according to counsel shows that the Plaintiff was not sure of the size of the suit land. Counsel submitted that the Defendant on the other hand proved that he bought the suit land in 1991 and that the evidence of the Defendant was conoborated by the evidence of P. W.3.

# Burden and standard of proof:

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[4] The burden of proof in civil matters lies upon the person who asserts or alleges. Any person who, wishes the court to believe the existence ofany particular fact or desires any court to givejudgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist ( See 101.102 and 103 o,ftlrc Evidence Act Cao 6 of the laws of Usanda). The opposite part can only be called to dispute or rebut what has been proved by the other party (See Sebuliba versus ive Bank (1982) HCB A2l:lhe standard of proof required is on the balance of probabilities Minister of Pensions (1947)2 ALL ER 372 Lord Denning stated; In Miller versus

"I'hat the degree is well settled. lt must carry a reusonable degree of probabilily, but not so high as is required in a crimirutl case. lf the evidence is such that the tribunal

cdn soy: 'we lhink it is more probdble than not,' the burden of proof is discharged, if the probabilities are equal, it is not. "

# Analvsis and determination of the Cour!:

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# Issue 1: Who of the parties is the lawful owner of the suit land.

[9] Both the Plaintiffand the Defendant claimed to have purchased the suit land. The Plaintifls witness (Namusoke Maria who was P. W.4) adduced the sale agreement wherein she purchased part ofthe suit land from Mukuye measuring 50feets x 60feets (PE6 and PE7). The agreement clearly mentions that Mukuye had bought the land from Kangave, and that the land neighbors St. Mark Primary School. When the court visited the locus in quo, it confirmed that the suit land neighbors the said school. Namusoke Maria also adduced the sale agreement wherein she purchased another part ofthe suit land lrom Kangave (PE8 and PE9). From the sale agreement, it is clear that Kangave was selling mailo land in the kibanja which he Kangave had sold to Namusoke Maria starting from the road and St. Mark. Although the size of the land Namusoke Maria bought from Kangave was not mentioned, Namusoke Maria testified that it was 45feets x SOfeets. Namusoke Maria testified that she then sold the 2 pieces ofland that she had bought from Kangave and Mukuye to the Plaintiff measuring approximately l05feets x 5Ofeets (PE'l and PE2). The evidence of purchase by the Plaintiff was witnessed by the area Local Council I Chairperson (PW2) who confirmed the sale. Mukuye Constantine (P. W.5) also conhrmed selling part of the suit land to Namusoke Maria. Although the Plaintiff pleaded and testified that the land was approximately l T0feets x l20feets, in my view it was clearly an estimate. He later clarified when asked by the Court that the land in dispute is 1O5feets x 5Ofeets. When the court visited the locus in quo, the P. W.l, PW4 and PW5 were able to show the land they testified about.

[ 0] The Defendant on the other hand testified that he purchased the suit land from Livingstone Bagigumisa. At paragraph I I ofhis defense he alleged that his kibanja interest was recognized by the registered proprietor Setumba who promised to give him a certificate oftitle for one part and he Setumba would take part of the land he bought. However, his own evidence (DE9) shows that the registered proprietor, Balamu Setiba died in 1963 long before he (the Defendant) bought the land in l99l from Livingstone Bagigumisa. In his testimony (paragraph 7 of the witness statement) he departed from his pleadings when he testified that it was instead Kangave who told him to share the kibanja which he had bought so that he Kangave would give him (the Defendant) a certificate of Title for part of the land he had bought from Livingstone Bagigumisa.

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[ 1] The Defendant testified that it is Livingstone Bagigumisa who sold to him the suit land. However, Livingstone Bagigumisa testified before Makindye Chief Magistrates Court (DE3) that the Defendant converted part of the land of the Plaintiff to his use and that is why they were fighting. When the Defendant cross-examined the Livingstone Bagigumisa before the same Court, Livingstone Bagigumisa testified that although he sold a kibanja to the Defendant, the Defendant extended to the land in dispute which was not his. He stated that the Defendant was telling a lie.

[12] The Defendant adduced a photocopy of the sale agreement between him and Livingstone Bagigumisa (DEl and E2). The size ofthe land he purchased is stated in the agreement to be l8Ofeets x l5Ofeets. However, Livingstone Bagigumisa testified that the land he sold to the Defendant was not measured but they only planted boundary marks which was witnessed by the Local Council I chairperson. He denied that DEl was the agreement on which he sold his kibanja to the Defendant. He further denied that the land was l8Ofeets x 150feets. He instead testified that the land was like 5Ofeets x 60feets. According to him, the Defendant extended to the land ofthe Plaintiffand that is why they were in Court

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[3] The evidence of Livingstone Bagigumisa clearly shows that the agreement which the Defendant adduced before court is not a genuine document and the size therein is not correct. I note that before Makindye Chief Magistrates Court the Defendant failed to produce the original agreement. He alleged that the original was with his wife. When the case was adjourned to enable him get the original agreement from his wife and produce the same in court, on the next date ofhearing he changed and told the court that the original agreement had been tom by a police officer at Katwe Police station during the investigation of the criminal case. I also note that none ofthe witnesses ofthe said agreement was adduced by the Defendant.

[4] I have not found the evidence of D. W.2 helpful since he was not present when the Defendant purchased his kibanja from Livingstone Bagigumisa. Although he claimed that the Defendant was staying on a house on the suit land, that house was not shown to the Court during the locus hearing. In fact, the only house on the suit land was the rentals which were completed when the dispute had already arisen. He did not even know the land which the Plaintiff was claiming. I have also not found the evidence of D. W.3 helpful. She did not know the neighbors of the land the Defendant bought and how they acquired their kibanja interest. D. W.4's evidence was also not helpful. He was not present when the Defendant purchased the land from Livingstone Bagigumisa. He did know the size. He in fact wrongly claimed that the suit land is the one Kangave took from the Defendant and sold to the Ptaintiff which was contrary to the evidence ofthe Defendant that the suit land is what Kangave left for him. He clearly had no knowledge ofthe land in dispute.

[5] From the evidence ofLivingstone Bagigumisa, it is very clear that the land which he sold to the Defendant is not the land in dispute. The Defendant merely extended from the land Livingstone Bagigumisa sold to him and started laying claims over the suit land. I am therefore convinced that the suit land does not belong to the Defendant but it instead belongs to the Plaintiffwho proved that he bought it from Namusoke Maria.

[6] I have not found merit in the submissions ofcounsel for the Defendant that Kangave did not have any authority to sell the suit land to the Namusoke Maria and Mukuye and as such the Plaintiff did not acquire any land. I have already found that the land which Livingstone Bagigumisa sold to the Defendant was different from the suit land, the Defendant has no locus standi to challenge the sale ofthe suit land by Kangave since the suit land was not sold to him. The suit land was part of the estate of the late Balamu Setiba. It is the administrators of the estate who can institute any action against Kangave if they have the evidence that he had no authority to sell the suit land. The issue before this Court is not whether Kangave had authority to sell the suit land and in any case he is not a party in this case.

## I\$uL2t \l&4! Iquedies are available to the parties

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[7] The Plaintiff alleged that the Defendant entered the suit land claiming that the suit land belongs to him and constructed thereon rentals. The Plaintifffurther pleaded that the Defendant has since refused to vacate the suit land. One ofthe prayers ofthe Plaintiffis that the Defendant be declared a trespasser on the suit land. The law on trespass is fairly settled. [n "/zstia e E. M. N Lutova vs Sterlins Civil Ensineertnp Comoarrv Ltd Civil Appeal No. I I of 2002, at page 6, Mulenga, J. S C held that;

"7'respass lo land occurs when a person makes an unuuthorized entry upon land, antl thereby inter.feres, or portends to interfere, with another person's lawful possession of

that land. Needless to suy, lhe lort oftrespass to land is commitled, not against the land, but against the person who ts in aclual or coru;tructive possession of the land."

ll 8l ln Sheik Muhammed Lubowa versus Kitara Enterprises Ltd, Court of Apoeal Civil Aopeal No.4 of 198, at page 4, Manyindo V-P held that;

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" ... it seems clear to me thal in order to prove the alleged trespasti, it \ras incumbent on the appellant to prove that the disputed land indeed belonged to him, that the respondent had entered upon tfuil land and that thdt entry was unlawful in that it was made without his permission or thdt lhe respondent had no claim or right or intercst in the lantl. "

[9] I have already held in issue I that the suit land belongs to the Plaintiff Therefore, the Defendants entry onto the suit land and subsequent construction of rentals on the suit land without the consent ofthe Plaintiffamounts to trespass. The Defendant is therefore declared as a trespasser on the suit land.

[20] The Plaintiff also prayed for an order to evict the Defendant from the suit land and ^a permanent injunction to restrain the Defendant from claiming ownership of the suit land. Having found that the Defendant is a trespasser on the suit land, it is accordingly ordered that the Defendant be evicted from the suit land and a permanent injunction is hereby given to restrain the Defendant and his agents from further trespass onto the suit land.

[21] On the prayer for general damages, according to Halsburv's Laws of Ensland.4th Edition reissue Volume 12(1) oaraeraph 812, general damages are defined as:

".. /hose losses, usuully but not exclusively non pecuniary, which are not capable of precise quantiJication in monetary terms. l'hey are those damages which will be

presumed to be natural or probable consequence of the wrong c<tmplained o/; with the result that lhe Plaint(f is only required to qsser! lhal damage lus been sufered. "

[20] I have to add that the principles governing measurement ofdamages in cases ofbreach of contract and tort is that there should be restilutio in integrum. In Siman Mbalire vs. Moses Mukiibi His.h Court Civil Suit No, 85 of 1995 Tinyinondi J. held that:

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"The fundamental principle by which courts are guided in awarding damages is restilution integram. By this principle is meant that the law will endeavor so Jbr o^s money can do it, to place the injured person in the same situation as if the contract had been performed rtr in the position he occupied before the occurrence of the tort both in case arising in contract dnd in tort, only such damages are recoverable as arises naturally and directly from the acl complained of' .

[21 ] In the present case, the Defendant trespassed on the suit land in 2010 and has since denied the Plaintiff use of the suit land. I consider that an award of general damages of UGX 25,000,000/: appropriate in the circumstances.

[22] On interest, the principles applied by this Court in the award ofinterest are clear and are set out in section 26 (2) ofthe Civil Procedure Act which provides that:

"ll'here the decree is for the payment d money, the court may in the decree, order inleresl al such rate &s the courl deems reasonable to be paid on the principal sum adjudged from the date of the suit to lhe date of the decree, in addition to dny intere-\l adjudged on such principal sumfor any period prior lo the institution of the suit, with /urther interest at such rale as the courl deems reasonable on the agpiregqte r;um so udjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit."

[23] The above position ofthe law was reaffirmed in Lwansa vs. Centenam Bank ll999l EA llfwherein the Court of Appeal held that;

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"Section 26(2) of the Civil Procedure Act enTpowers the court to award three types of interest: interest adjudged on the ptincipal sumfrom any period prior to the inslitution of the suit, interest on the principal sum adjudgedfrom the date offrling lhe suit to date of the decree, and interesl on dggregate sumfrom the date of the decree to the date of poyment in full. "

[24] On the interest rate to be applied, in Mohanlal Kakubhai Radia vs Llarid Telecom Lul HCCS No. 234 of 2011 the court stated that

"Court should take into account the ever rising in/lation and drastic depreciation of the currency. A plaintrff is entitled to such rate of interest as would not neglect the prevailing economic value of money, but at the same time one which would insulate him or her againsl any fulther economic vagaries and the inflation and depreciation of the currency in the event that the money awarded is not promptly paid when it falls due. "

[25] In the present case, the interest is on general damages awarded. I consider that interest at the rate of 15% per annum is appropriate in the circumstances. The interest shall accrue from the date ofthis judgment till payment in full.

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[27] Inthe made. end, having fully considered the merit of this suit, the following orders are hereby

- 1. A declaration that the Plaintiffis the rightful owner of the suit land. - 2. A declaration that the Defendant is a trespasser onto the suit land. - 3. The Defendant and all his agents and assignees to be evicted from the suit land. - 4. A permanent injunction is hereby issued to restrain the Defendant and his agents and assignees from further trespassing and claiming ownership ofthe suit land. - 5. The Defendant to pay the Plaintiff general damages for trespass of UGX 25,000,000/: (Uganda Shillings Twenty-Five Million only). - 6. The general damages in 5 above shall attract interest of l5%o pu annum from the date of this judgment till payment in full. - 7. The Defendant to pay the Plaintiffthe costs of this suit.

I so order.

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Dated this 23'd day ofAugust 2024.

l'qP'n

Phillip Odoki

JUDGE