[2023] UGHCLD 456

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(LAND DIVISION)**

## **CIVIL SUIT NO. 761 OF 2014**

- 5 **1. KAFEERO SWALIK MUSOKE** - **2. NAKITTO HADIJA** - **3. NALWEYISO HAMDA KAFEERO**

**(Administrators of the estate of the late Zaid Kafeero Haji------------------PLAINTIFFS**

10 **V**

- **1. KAMOGA AMIS** - **2. MALE GODFREY** - **3. NSUBUGA DAUDA** - **4. MUSTAFA NSUBUGA** - 15 **5. WAGUMBA BUDALA** - **6. SALONGO BIGERE** - **7. KIBIRIGE ENOCH** - **8. MAGEMBE CHRIZANTO** - **9. NAMUDDU NORAH ELVANIA** - 20 **10. NAKAKAWA MARTHA** - **11. KASHEMEZA INNOCENT** - **12. KAKERENKYA SARAH** - **13. SENYONGA ISA** - **14. SANYU MARTIN** - 25 **15. KALUNGI EDIRISA** - **16. NASSOZI HARRIET** - **17. CHARLES MULEDHU** - **18. KALANGWA PAUL----------------------------------------------------------------DEFENDANTS**

# **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya JUDGMENT**

The Plaintiffs brought this suit against the Defendants jointly and severally seeking the remedies below:

5 a) A declaration that the Defendants are trespassers on the suit land comprised in Kyadondo Block 223 Plots 3986, 3987, 3988, 3990, 3991, 3992 and 3993 land situate at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso District.

b) An order for vacant possession and/or an eviction order against the Defendants, their agents, servants and employees.

10 c) A permanent injunction restraining the Defendants, their agents, servants, employees or any one rightfully claiming under them from trespassing onto the suit land.

- d) General damages for trespass. - e) Costs of the suit.

#### 15 **Plaintiffs' Claim**

The Plaintiffs are administrators and beneficiaries of the estate of the late Zaidi Kafeero Haji and the registered proprietors of the suit land comprised in Kyadondo Block 223 Plots 3986, 3987, 3988, 3990, 3991, 3992 and 3993 situate at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso District. Sometime in the year 2008, the Defendants without 20 any colour of right entered upon the suit land and started claiming ownership of the land. The Plaintiffs claim that the Defendants illegally planted boundary tress therein, cut down and destroyed the Plaintiff's tress in addition to constructing permanent structures thereon without the approval or consent of the Plaintiffs.

The Defendants' actions compelled the Plaintiffs to report the matter to the relevant 25 authorities of police and the Administrator General who tried to restrain the Defendants from further trespass but to date the Defendants have deliberately refused to abide as required. The Plaintiffs contend that their land is currently being encumbered by the Defendants, their agents/employees who still reside on the land while cultivating thereon to the detriment and total loss of the Plaintiffs. And unless the Defendants are permanently restrained from trespassing on the suit land, the Plaintiffs are likely to suffer irreparably by being dispossessed from their land. Hence this suit.

#### **Defendant's defence**

Eighteen Defendants were sued by the Plaintiffs but only a handful participated in the

- 5 proceedings by filling their defences and attending court to defend the suit. These are the 9 th, 10th, 11th, 14th 15th and 17th Defendants. They averred that they are not trespassers on the Plaintiff's land but rather they are bonafide occupants by virtue of being Kibanja owners. The 10th Defendant, Ms. Nakakawa Martha averred that she rightfully bought her land from the late Nansubuga Zaliya, a widow to the late Haji Kafeero Zaidi. Mr. Kalungi, - the 15th 10 Defendant, also stated that he bought his Kibanja measuring 70 x 20 ft. from Mr. Male Godfrey who had also bought it from Mr. Sulayiman Mpangala and Mr. Badru Mayombwe Kafeero, a son and heir to the late Haji Kafeero. The transaction took place in 2008, and Mr. Kalungi agreed to a purchase price of UGX 5,700,000/= for the Kibanja. After paying the first instalment of UGX 2,000,000/= upon the understanding that the - 15 balance would be paid after the late Hajji Kafeero's family had processed letters of administration and transferred the titles into the administrators' names, the 15th Defendant never heard back from the said Mr. Badru Mayombwe Kafeero. He was then surprised to see that he was sued as a trespasser whereas not.

## **The 9th, 11th, 14th, 17th and 18th Counterclaim**

- 20 They averred that the suit land belonged to the late Zalia Nansubuga who was married to the 1st and 2nd Plaintiff's grandfather, the late Kamada Kafeero. Prior to and during the subsistence of their marriage, the suit land continued to be the late Zalia Nansubuga's private property and never became matrimonial or joint property therefore the late Zaidi Kafeero could not have inherited it since it was not part of his late father's estate. These - 25 Defendants asserted that they each purchased distinct pieces of the said Kibanja from the late Nansubuga and/or from sellers who had also purchased from her, therefore, all developments on the land are lawful. Further, the Defendants contended that their transactions were concluded with the full knowledge of all the Plaintiffs. And since the suit land has never been part of the estate of the late Kamada Kafeero or the late Hajji Zaidi - 30 Kafeero, these Defendants were under no obligation to seek the Plaintiffs' approval or

consent to utilise their respective pieces of the suit land. They further contended that the attempts by the Plaintiffs to alienate the suit land by acquiring titles for all the aforementioned plots so as to form part of the estate of the late Hajji Zaidi Kafeero is inconsequential as the same is a fraud perpetuated by them to deprive the Defendants of

5 their lawful property for which they should be held liable.

In their counterclaim, they sought the following orders;

- 1. A declaration that the suit land has never been part of the estate of the late Hajji Zaidi Kafeero. - 2. A declaration that the Defendants/Counter Plaintiffs are the rightful and bonafide 10 owners of the suit land. - 3. An order for cancellation of title for land comprised in Kyadondo Block 223 Plots 3986, 3987, 3988, 3990, 3991, 3992 and 3993 land at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso District. - 4. A permanent injunction issues against the Plaintiffs/Counter Defendants and/or 15 their agents/ assignees prohibiting them from interfering with the Defendants quiet enjoyment of their respective pieces of the suit land. - 5. Special and punitive damages. - 6. General damages. - 7. Costs of the suit. - 20 8. Interest on 5 and 6 above at a commercial rate.

The 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 12th, 13th and 16th Defendants did not file any defence in this matter therefore the matter proceeded ex parte against them.

# **Evidence**

# **Plaintiff's evidence**

25 Two witnesses in this matter testified in support of the Plaintiff's case.

Mr. Kafeero Swalik Musoke, the 1st Plaintiff, testified that he is the son and one of the Administrators of the late Zaidi Kafeero who was also a son of the late Ahmad Kafeero, the former registered proprietor of the suit land located at Namugongo Munsawo. A copy of the letters of administration was admitted and marked Exb. P.1. He explained that his

father, the late Zaidi Kafeero, bought the land from the former owner Kisosonkole and the suit land was subsequently registered in his names as per the copy of the title marked Exb. P.2. On the suit land, there existed a Kibanja holder, one Zalia Nansubuga and upon the death of his father, she agreed with Mr. Mpagala Sulaiman and Mr. Badru Mayombwe 5 Kafeero, who were in charge of the suit land, to process her title. In turn, she surrendered

part of her land to cater for the process of acquiring the land title according to the copy of the sale agreement marked Exb. P.3.

They then approached the Administrator General's office to obtain letters of Administration in respect of their late father's estate so that they could make the change 10 of title from the deceased into the Administrator's names. And they duly informed the Administrator General that the late Zalia Nansubuga had a Kibanja on the land and he invited her as per the letter marked Exb. P.4. A surveyor was subsequently appointed by the Administrator General to open up boundaries and allow subdivision of Ms. Nansubuga's Kibanja, which was done. She started utilising her portion without any interference and sold part of her land to the 17th 15 Defendant, Mr. Muledu Charles. The beneficiaries of the estate, the late Nansubuga and the 17th Defendant agreed that they process two titles in respect of the land she had sold to the 17th Defendant. To that end, he paid them some money to cater for the process, however the late Nansubuga passed away before the process could be completed.

- 20 Mr. Musoke further testified that the beneficiaries of the late Nansubuga sold part of her land including the one that she had surrendered to the late Zaid's estate to facilitate the process of getting her title. When the Plaintiffs tried to stop them from selling their land, they adamantly refused to do so since the process of securing the titles was incomplete. Mr. Musoke added that they lodged several complaints to the Administrator General's - 25 office regarding the said illegal transactions and developments on their land. The Administrator General's office tried to guide and stop the vendors and those that had purchased through several correspondences to no avail. A copy of one of a letter was admitted and marked Exb. P.5. The Defendants have now built houses and cultivated on their land which has denied the Plaintiffs the right to use it in addition the great losses and

30 damage they have suffered. Mr. Musoke prayed that this Court grants the prayers they

seek against the Defendants for the inconvenience they have caused to them as beneficiaries of the estate and the estate itself.

Ms. Nakitto Hadija the 2 nd Plaintiff corroborated Mr. Musoke's evidence in all material particulars. She also prayed that the Court grants them the prayers sought in the Plaint.

#### 5 **Defendants' evidence**

Ms. Namuddu Norah Elvania, the 9th Defendant testified that on the 7th June 1999, the late Nansubuga sold a Kibanja to Nassozi Harriet at UGX 1,000,000/= as per the agreement marked Exb. D.1. She paid the 1st instalment of UGX 700,000/= immediately and on the 8 th October 2000 she paid the balance of UGX 300,000/= according to the deed marked Exb. D.2. On the 25 10 th March 2007, Ms. Namuddu purchased the same Kibanja from Ms. Nassozi at UGX 3,800,000/= and made a part payment of UGX 3,500,000/=. A copy of the sale agreement was admitted and marked Exb. D.3. Later, on the 5th June 2007, she paid the balance of UGX 300,000/= to Ms. Nassozi as seen in Exb. D.4. Afterwards she constructed a house and on the 1st January 2010, she started living in it. When construction commenced, the 1st 15 Plaintiff approached her and informed her

- that she was trespassing on the suit land and proceeded to demolish part of her house, which matter she reported to the LC1 Chairman, Mr. Mugamba. A meeting was held and it was concluded that she had lawfully purchased the suit land and should enjoy quiet possession. - 20 It was Ms. Namuddu's testimony that she has been living on the suit land since 2010 and there are currently three houses now. One house has two bedrooms occupied by her daughter Angella, the second house by her son and the third by her grandchildren. her known neighbours are Mr. Kalungi, Mama Aine, Nalongo and Mr. Charles Muledhu. She maintained that she lawfully purchased the suit land and has never been involved in any - 25 fraud. She added that she has not enjoyed quiet enjoyment and possession of her land and prayed that the Court orders cancellation of the certificates of title issued in the names of the Plaintiffs and grant their prayers contained in the Counter claim.

Mr. Ariho Innocent Kashemeza, the 11th Defendant, DW2 in this matter testified that he is aware that on the 16th February 2003, the late Nansubuga gifted a piece of the said

kibanja measuring 78 feet by 80 feet to Male Godfrey, the 2nd 30 Defendant as per Exb. D.5.

On 17th May 2003, the 2nd Defendant sold the Kibanja to Kemiyondo Agnes and Kyomuhendo James at UGX 3,500,000/= which was paid in instalments until November 2005. A copy of the agreement and acknowledgment of receipt of the money was marked Exb. D.6 and D.7 respectively. On 4th September 2007, DW2 purchased a Kibanja 5 measuring 55ft by 106ft in height and 45 feet by 33ft by 88 feet in width from them at UGX 5,200,000/= and made part payment of UGX 3,000,000/=. A copy of the sale agreement was admitted and marked Exb. D.8. On 6th October 2007, he made another payment of UGX 1,200,000/= and the final payment of UGX 1,000,000/= on 12th November 2007 as per Exb. D.9 and D.10. After paying for the land, Mr. Kashemeza took possession by 10 rearing chicken there and later started cattle farming before constructing his house where he currently resides.

Sometime in 2011, the 1st Plaintiff moved the LC1 officials to call a meeting for all the persons holding Bibanja interests on the suit land and at the meeting he informed them that the late Nansubuga had sold more land than she was entitled and therefore they

- 15 were all trespassers on the land. However, the meeting concluded from the facts that the land belonged to the late Nansubuga and she had in fact rightfully sold it. They also learnt that the late Nansubuga was entitled to 1.5 acres of the land and the 1st Plaintiff's family was supposed to have issued a title for her. A copy of the minutes of the meeting were marked Exb. D.11. Mr. Kashemeza, maintained that he lawfully purchased his land and - 20 has never been involved in any fraudulent dealings. He added that he has four structures on the land which are estimated at UGX 350,000,000/= and prayed that the Court grants their prayers contained in the Counterclaim.

Mr. Sanyu Martin, DW3, the 14th Defendant testified that on the 8th of October 1998, the late Nansubuga gifted Mr. Kamoga Amis, the 1st Defendant, part of her Kibanja as per Exb. D.12. Subsequently on the 23rd 25 day of July 2007, Mr. Sanyu purchased his Kibanja from Mr. Kamoga at UGX 4,500,000/=. It measures 78ft by 70ft by 82ft. A copy of the sale agreement was admitted and marked Exb. D.13. At the time of this purchase, there was no certificate of title for the suit land and the 1st Defendant informed him that it would be processed afterwards. Mr. Sanyu fenced off the land and constructed a pit latrine on it.

He corroborated the other Defendants' testimony in regard to the meetings that were conducted to settle the land ownership issues between themselves and the 1st Plaintiff. Due to these issues, it took him a while to develop his land because of paranoia. Eventually, in June 2011, he commenced construction of his house and in February 2013,

5 he entered it and started living there peacefully without any interference until 2014 when he was issued summons to defend this suit. Mr. Sanyu denied being involved in any fraudulent dealings and maintained that he lawfully purchased the suit land. He added that the suit land has his three structures which are estimated at a value of UGX 200,000,000/=. And because of the Plaintiffs' actions, he has not enjoyed quiet 10 possession of his land. He therefore prayed that Court grants them the prayers contained in the Counterclaim.

DW4, Mr. Muledhu Charles, the 17th Defendant testified that he purchased a Kibanja measuring 50ft by 100ft from the late Nansubuga at UGX1,400,000/= as per a copy of the sale agreement marked Exb. D.14. Later in December 2002, he was approached by

- 15 the vendor's nephews know as Mustapha and Abdullah who told him that he was supposed to have purchased an additional portion measuring 13ft by 50ft. He later bought the additional plot of land at UGX 140,000/= as per Exb. D.15. Upon purchasing his land, he starting making bricks on it and in 2003, he started constructing his house. At that point, he was approached by Mr. Mpangala Suleiman, the clan head who informed him - 20 that he had bought his land illegally and to desist from further construction. Mr. Muledu informed the late Nansubuga who confirmed to him that she owned the land where his kibanja was which she had acquired prior to marrying the late Ahmed Kafeero but not the certificate of title. - Mr. Muledhu further corroborated the other Defendants' testimonies in regard to the meetings and disagreements that arose between them and the 1st 25 Plaintiff over the land. He added that after the death of Ms. Nansubuga, the 1st Plaintiff approached him and informed him that he had to deal with him directly in order to acquire his title. On the 13th December 2010, he entered into an agreement with the 1st Plaintiff for UGX 4,500,000/= in order to subdivide off his portion and get the title as per Exb. D.16. Mr. Muledu paid the

1 st 30 instalment of UGX 3,000,000/= and they agreed that the balance would be paid in about three months, which was in April 2011. However, upon the lapse of the 3 months, the 1st Plaintiff did not respond to calls to collect his balance and all attempts to reach him proved futile. Mr. Muledhu stated that he still resides on his land with properties estimated at UGX 300,000,000/= which he has not enjoyed quiet enjoyment of due to the Plaintiffs'

5 actions. He thus prayed that the Court grants them the prayers contained in the Counterclaim.

Ms. Nakakawa Martha, DW5, the 10th Defendant, testified that in the year 2002, she bought a Kibanja measuring 80 feet by 80 feet from the late Nansubuga at a consideration of UGX 3,800,000/= before the area Chairperson, Mr. Edward Mugamba. A copy of the 10 sale agreement was tendered into evidence and marked Exb. D.18. She then constructed a house where she currently resides with her children and it is where they derive their livelihood.

Mr. Kalungi Edirisa, DW6, the 15th Defendant testified that in 2002 he bought the Kibanja measuring 70ft by 20ft from Mr. Male Godfrey, the 2nd Defendant, at a consideration of

- 15 UGX 2,000,000/= before the area Chairperson of Namugongo Jjanda as per Exb. D.19. The said Mr. Male Godfrey had bought it from Mr. Sulayiman Mpangala and Mr. Badru Mayombwe Kafeero, a son and heir to the late Haji Kafeero Zaid. In 2008, Mr. Kalungi purchased the Kibanja interest at a consideration of UGX 5,700,000/=. A copy of the agreement was admitted and marked Exb. D.20. He paid UGX 2,000,000/= and the - 20 balance of UGX 3,700,000/- was to be paid after the vendors had obtained letters of administration and were duly registered on the suit land. As he waited for this process to be concluded, so that he could make the final payment and get his title, he was sued as a trespasser by the Plaintiffs, a claim he maintains is not true.

A locus visit was conducted on the 11th of February 2023 and all the Defendants who 25 testified in court were found to be occupation of the suit Bibanja as described in their evidence before the court.

## **Representation**

The Plaintiffs were represented by M/S Kiwanuka, Kanyago & Co. Advocates; the 10th and 15th Defendants were represented by Imran Advocates & Solicitors and the 9th, 11th , 14th and 17th 30 Defendant by M/S Engoru, Mutebi Advocates. Counsel for the Plaintiffs and the 9th,10th, 11th ,14th, 15th and 17th Defendants all filed final submissions which I have considered.

During scheduling, the following issues were formulated for Court's determination;

# **ISSUES**

- 5 **1. Whether the suit land formed part of the estate of the late Zaidi Kafeero?** - **2. Whether the transactions that led to the Defendants' alleged purchase of the suit land were illegal and/fraudulent?** - **3. Whether the Defendants are trespassers on the suit land?** - **4. What remedies are available to the parties?**

# 10 **RESOLUTION**

# **Issue 1**

**Whether the suit land formed part of the estate of the late Zaidi Kafeero?**

**Section 192 of the Succession Act Cap 162** provides;

*192. Effect of letters of administration*

15 *Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his or her death.*

Several correspondences from the Administrator General's office were relied upon by the Plaintiffs, Exb. 3, 4, 5, 6 & 7. The caption on all of them reads; *'Mengo Administrator General's Cause No. 2724 of 1996 Kafeero Zaidi Haji- Deceased.*' While no precise date

was provided for the death of the deceased, the 1st 20 Plaintiff confirmed that he passed on in 1996.

The Plaintiffs filed this suit as administrators of the estate of the late Haji Kafeero Zaidi vide letters of administration granted on the 12th February 2009, Exb. P.1. It is an undisputed fact that the deceased was the registered proprietor of land comprised in 25 Kyadondo Block 233 Plot 316 measuring 2.27 Hectares Nabwojjo & Namugongo as of the 15th August 1985. According to a copy of the deceased's title, Exb. P.2, the Plaintiffs were registered on it as administrators to his estate on the 16th March 2009. The period between the deceased's death and the grant of letters of administration to his estate to the Plaintiffs was 13 years.

**Section 278** provides for an inventory as follows;

## *Inventory and account*

- 5 *An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the court which granted the probate or letters may from time to time appoint, exhibit in that court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in* - 10 *that character; and shall in like manner within one year from the grant, or within such further time as the court may from time to time appoint, exhibit an account of the estate, showing the assets which have come to his or her hands, and the manner in which they have been applied or disposed of.(Emphasis added)*

Addressing the critical duty of an executor/administrator of an estate to file an inventory,

15 in the case of **Abu baker Sebalamu Ganya v Yasmin Nalwoga SCCA No. 14 of 2017**, Nshiimye, JSC held,

'*The above provision makes the filing of an account and inventory by an executor mandatory and time specific. Failure by an executor to oblige the provision amounts to an offence under Section 119 of the Penal Code Act.*

20 *Furthermore, the inventory filed should contain and true estimate of all the property of the deceased's estate and how it was distributed and the remainder (if any).' (*Emphasis mine).

This court held in the case of **Hadijah Ndagire and Anor v Mohammad Kasozi and 15 Others (Civil Suit No. 40 of 2014) [2021] UGHCLD 38 (8 February 2021**) that;

25 *'It was therefore premature for the Plaintiffs to file this suit without an inventory to the deceased's estate. There could be no cause of action to recover land under a deceased's estate in the absence of an official inventory to his estate duly filed with the court that issued the grant to administer the estate. This was the only valid foundation upon which*

*the administrator to the estate or could make a claim on the Defendants. The filing of an inventory is a crucial and mandatory part of the succession process which has for the most part been disregarded by holders of letters of administration.'*

The Plaintiffs were duty bound to file an inventory to the deceased's estate by the 12th 5 August 2009 containing the true estimate of all the property of the deceased's estate and it is evident that there was no inventory on the court record. The resultant effect of the missing inventory is that the true estimate of the late Haji Zaid Kafeero's property is unknown.

The suit land claimed by the Plaintiffs is comprised in Kyadondo Block 223 Plots 3986,

- 10 3987, 3988, 3990, 3991, 3992 and 3993 land at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso District. All titles were created in November 2009, three months after the official inventory ought to have been filed by the Plaintiffs. Since the titles were created outside the time-specific period for filing the inventory and more importantly there was no inventory on court record, I find that the suit land did not form part of the estate of the late - 15 Haji Zaidi Kafeero.

**Issue 1 is resolved in the negative.**

# **Issue 2**

# **Whether the transactions that led to the Defendants' alleged purchase of the suit land were illegal and/fraudulent?**

20 In the case of **Ponsiano Katamba V Cotilda Nakirijja Civil Appeal No. 169 of 2017**, Hon. Justice Madrama J. A held that;

*'A Kibanja holding does not fall under the tenure system known as 'customary' under Article 237 (3) (a) of the Constitution but falls under article 237 (3) (c) that recognises mailo tenure. It is a special form of tenure known as a Kibanja that is recognised within*

25 *another tenure of a registered owner known as mailo owner. A Kibanja is by definition under the Land Act Cap 227 a lawful occupancy falling within registered land particularly described as Mailo land...'*

All the defendants who filed defences and a counterclaim, asserted that they were Bibanja holders.

# **Section 31 of the Land Act 1998** as amended provides;

*Tenant by occupancy*

*(1) A tenant by occupancy on registered land shall enjoy security of occupancy on the* 5 *land.*

*(2) The tenant by occupancy referred to in subsection (1) shall be deemed to be a tenant of the registered owner to be known as a tenant by occupancy, subject to such terms and conditions as are set out in this Act or as may be prescribed*

- 10 **Section 34(1) & (3)** provide for transactions by a tenant by occupancy as follows; *Transactions with the tenancy by occupancy* - *(1) A tenant by occupancy may, in accordance with the provisions of this section, assign, sublet or sub-divide the tenancy with the consent of the land owner.* - 15 *(3) Prior to undertaking any transaction to which subsection (1) refers, the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his or her consent to the transaction.*

**Section 34(9)** provides for the consequences of the failure to obtain consent as follows;

- 20 *No transaction to which this section applies shall be valid and effective to pass any interest in land if it is undertaken without a consent as provided for in this section, and the recorder shall not make any entry on the record of any such transaction in respect of which there is no consent.* - 25 According to the Defendants, they purchased their respective interests prior to November 2009 and their predecessor in ownership was the late Zalia Nansubuga, wife of the late Hajji Zaidi Kafeero. It is the Defendants' testimony that she had a distinct Kibanja that did not form part of matrimonial property or her late husband's estate.

In elaborate testimonies before this court, the 9th, 10th, 11th, 14th , 15th and 17th Defendants testified that they had purchased the suit land and they were in active occupation by the time the Plaintiffs approached them to claim an interest in the suit land.

- 5 Counsel for the Plaintiffs submitted that the Defendants had failed to relate their purchase agreements to the suit land and for that reason, they ought not to be relied upon by this court. He added that the Defendants had a duty of obtaining consent from their landlord or registered proprietor since they were Bibanja owners. And without proof that they had obtained that mandatory consent, their purported transactions offended the provisions of - 10 **section 34(3) of the Land Act.**

In reply, Counsel for the Defendants submitted that the Plaintiffs became Administrators long after the Defendants' purchased their Bibanja and their titles were obtained subject to the Defendants' Bibanja.

The provisions of **section 34 (3) of the Land Act** specifically relates to consent from land owners. It is an undisputed fact that the Plaintiffs were registered as proprietors after the Defendants entered transactions for purchase of their Bibanja. When I visited the locus in quo I found the Defendants in full occupation of the suit land. There was no evidence 20 of interrupted occupation. In any case, the only legitimate persons who could bring a

- complaint against the Defendants was the registered proprietor at the time of their respective purchases, and the Plaintiffs did not fall in that category. - I find that to the contrary, the Defendants have ably demonstrated that they were in 25 legitimate occupation of the suit land having acquired it from previous Bibanja holders for valuable consideration without any known complaint from the registered mailo owner and they were not trespassers on the suit land.

# **Issue 2 is resolved in the negative**.

#### **Issue 3**

#### **Whether the Defendants are trespassers on the suit land?**

In the case of **Justine N. M Lutaaya v Stirling Construction Company & Others Supreme Court Civil Appeal No. 11 of 2002**, Mulenga, JSC held that;

- 5 *'Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue* - 10 *in trespass. Thus, the owner of an unencumbered land has such capacity to sue...'*

The trespass complained of by the Plaintiffs was described as entering upon the suit land, claiming ownership of the land, illegally planting boundary tress, cutting down and destroying the Plaintiffs' tress in addition to constructing permanent structures without the 15 approval or consent of the Plaintiffs.

This court's findings on Issue 1 and 2 render this issue moot. The Plaintiffs had no locus standi to bring an action in trespass against the Defendants, moreover in light of their evidence based claims to the suit land.

#### 20 **Issue 3 is resolved in the negative.**

### **Issue 4**

#### **What remedies are available to the parties?**

The Plaintiffs failed to establish their claim against the Defendants. On the other hand, 25 there is sufficient evidence to support the Counterclaim.

Counsel for the Defendants prayed for cancellation of the Plaintiff's certificates of title, on grounds that they were fraudulently registered on the suit land which makes their titles impeachable under **section 64 of the Registration of Titles Act, Cap 230**. It provides;

#### *64. Estate of registered proprietor paramount*

*(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant or otherwise, which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the operation of this Act shall, except in the case of fraud, hold the land or estate or interest in land*

- 5 *subject to such incumbrances as are notified on the folium of the Register Book constituted by the certificate of title, but absolutely free from all other incumbrances, except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title, and except as regards any portion of land that by wrong description of parcels or boundaries is included in the certificate of title or instrument evidencing the title* - 10 *of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.*

In the case of **Hilda Wilson Namusoke & Others v Owalla's Home Investment Trust EA Ltd 7 & Anor SCCA No. 15 of 2017,** Prof. Ekirikubinza, JSC relied on the definition of fraud in the Osborne Concise Law Dictionary 8th 15 Edition at page 152, which I find appropriate;

#### '*Fraud is the obtaining of material advantage by unfair or wrongful means'*

Contrary to Counsel for the Plaintiffs' submissions, the 9th, 11th, 14th, 17th, and 18th 20 Defendants did plead fraud in their joint Counterclaim. And I am persuaded that the Plaintiffs were mandatorily duty bound to file an inventory within a time-specific period and they failed to do so. They went ahead to illegally create titles under the deceased's estate name with full knowledge that the Defendants were in full occupation and utilisation 25 of the suit land. This court has found that the suit land did not form part of the estate of the deceased and the Plaintiffs were therefore wrongfully registered thereon. I find that the registration of the Plaintiffs, as administrators of the estate of the late Haji Zaidi Kafeero, upon the land comprised in Kyadondo Block 223 Plots 3986, 3987, 3988, 3990, 3991, 3992 and 3993 land at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso 30 District was wrongful and gave them a material advantage, a situation which and cannot be left to stand. I hereby order the cancellation of all the suit titles.

With regard to the prayer for General damages, I find it justified in the circumstances. For the last several years, the Plaintiffs have not allowed the Defendants to enjoy quiet possession of the suit land, and for that inconvenience I award a sum of UGX 25, 5 000,000/=.

Finally, the Defendants did not plead special damages and I could find no evidence to support an award of punitive damages, accordingly the court declines to award these.

- 10 **In conclusion, I dismiss the Plaintiffs' suit with costs and enter judgment in the counterclaim and order as follows;** - **1. The land comprised in Kyadondo Block 223 Plots 3986, 3987, 3988, 3990, 3991, 3992 and 3993 land at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso District does not form part of the estate of the late Haji Zaidi** 15 **Kafeero.** - **2. Cancellation of the titles for the land comprised in Kyadondo Block 223 Plots 3986, 3987, 3988, 3990, 3991, 3992 and 3993 land at Nsawo-Nabwojo-Namugongo, Kira Town Council, Wakiso District.** - **3. The 9 th, 10th, 11th, 14th, 15th and 17th Defendants are the lawful owners of their** 20 **Bibanja.** - **4. A permanent injunction issues against the Counter Defendants and/or their agents/ assignees prohibiting them from interfering with 9 th, 10th, 11th, 14th , 15th and 17th Defendants' quiet enjoyment of their respective Bibanja.** - **5. Costs of the suit.**

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**Olive Kazaarwe Mukwaya**

**JUDGE**

**13th** 30 **September 2023**

**Delivered by email to Counsel for the Parties.**