[2024] UGHCLD 183

## 5 **THE REPUBLIC OF UGANDA**

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

### **CIVIL SUIT NO. 573 OF 2020**

**KATEREGA JOHN :::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

## 10 **BAMWIITE EMMANUEL :::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

#### **AND**

**BAMWIITE EMMANUEL :::::::::::::::::::::::::::::: COUNTER-CLAIMANT**

#### **VERSUS**

#### **1. RUKYALEKERE ASABA**

#### 15 **2. KIKAMBI GERALD**

# **3. KATEREGA JOHN :::::::::::::::::::::::::::::::: COUNTER-DEFENDANTS BEFORE: HON. LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA JUDGMENT**

The plaintiff brought this suit against the defendant for the following orders;

20 *a) A permanent injunction to restrain the defendant, his agents, workmen, and all those who claim and derive interest from him from harassing, trespassing, intimidating, developing or in other ways interrupting the plaintiff's use and enjoyment of the suit land described as Kyadondo Block 182 plots 1924 and 1925 land at Bulindo Kira Municipality, Wakiso District (herein after* 25 *referred to as the suit land).*

*b) An order to the Registrar of Titles at Wakiso MZO to remove the defendant's caveat under instrument number WAK 00220865 dated 23rd May 2019.*

Page **1** of **35**

- 5 *c) Order of demolition of any illegal structures and eviction of the defendant, his agents or servant and those deriving interest from him on Kyadondo Block 182 plots 1924 and 1925 land at Bulindo.* - *d) General damages* - *e) Costs of the suit.*

## 10 **Background**

The facts constituting the plaintiff's cause of action as stated in the plaint are to the effect that by an agreement executed on 9th January 2015, the plaintiff bought the suit land measuring 50 decimals from a one Asaba Rukyalekere (1st counter defendant) at a consideration of Uganda Shillings 80,000,000 ( Uganda Shillings 15 eighty million). The plaintiff contended that at the time of purchase, the suit land was wholly registered in the names of Musana Mixed Farm Limited. The plaintiff further contended that at the time of execution of the said agreement, the vendor was the lawful owner of part of the land comprised in Kyadondo Block 182 plot 50 land at Bulindo measuring one acre and the plaintiff relied upon that basis to purchase the

20 suit land.

The plaintiff claimed that upon the vendor receiving the balance of the consideration from the plaintiff, the vendor delivered to the plaintiff two certificates of title described as Kyadondo Block 182 plots 1924 and 1925 at Bulindo both measuring 0.046 hectares respectively having been created as a result of a subdivision of 25 Kyadondo Block 182 plot 50 land at Bulindo as part settlement for the land purchased. The plaintiff also stated that the vendor signed transfer forms to enable

the plaintiff to transfer the land into his names, after which the plaintiff took possession and planted a banana plantation as the owner of the suit land to date.

5th July 2024

- The plaintiff averred that on 30 5 th March 2019 while in the process of transferring the 2 (two) certificates of title for land comprised in Kyadondo Block 182 Plots 1924 and 1925 at Bulindo into his names, it was discovered that the defendant had caveated the suit land under instrument number WAK 00220865 dated 23rd May 2019 claiming an interest on the same land. - The plaintiff went on to state that on 5 10 th August 2020, he reported to police vide ref. no. SD/02/09/20, the illegal actions of the defendant and his agent called Mr. Mulindwa Robert who entered on the suit land and developed structures without the plaintiff's consent or knowledge as the lawful owner of the said land. The plaintiff also contended that the defendant's agent Mulindwa Robert has made it his business - 15 to keep threatening and intimidating the plaintiff using the defendant's position as a government official working as a Senior Registrar of Titles in Ministry of Lands, Housing and Urban Development.

On the other hand, the defendant filed a written statement of defence denying the contents of the plaint and went ahead to contend that the stated agreement alluded to

20 in paragraph 4 (i) of the plaint is a forgery that the plaintiff in connivance with the said Asaba Rukyalekera engineered the said agreemnt in order to defeat the defendant's interest in the suit land.

The defendant also contended that he purchased land comprised in Kyadondo Block 182 plot 50 at Bulindo measuring approximately 50 decimals at a consideration of

25 Uganda shillings 75,000,000 ( Uganda Shillings seventy-five million) from the said Asaba Rukyalekere on 9th March 2015.

The defendant went ahead to state that on 20th March 2015, he paid Asaba Rukyalekere the first installment of Uganda shillings twenty-five million as agreed in the sale agreement and immediately took possession of suit land. Furthermore, the

5th July 2024

- 5 defendant contended that before he could make another installment, the said Asaba informed the defendant about an ongoing case that he filed against a one Fred Kiggundu and another Phillipo Kafeero vide High Court Civil Suit No. 874 of 2017, wherein the said Asaba promised to deliver the certificate of title and the requisite transfer documents after the completion of the said case. - 10 The defendant went ahead to state that Asaba and the defendants in HCCS No. 874 of 2017 entered into a consent and a memorandum of understanding were executed between various parties to enable the completion of the transfer process and the certificates of title were issued whereby, Asaba Rukyalekere obtained judgment in his favour on 25th February 2019 as the rightful owner of land comprised Kyadondo - 15 Block 182 Plots 1924 and 1925 land at Bulindo (suit land in the instant case).

The defendant contended that as a result of the said consent, Asaba was granted a quarter acre which covered part of the land where the defendant was already in possession. The defendant proceeded to state that it was discovered that the land was subdivided into different plots and was transferred to Kikambi Gerald (2nd counter 20 defendant) including the plots in contention.

It was the defendant's contention that upon receipt of judgment, Asaba did not inform him about the progress of the case but rather started looking for third parties to purchase the suit land. The defendant stated that when he reached out to Asaba to obtain the requisite transfer documents, the said Asaba declined to avail the said

25 documents on grounds that the initial agreement could not be fully performed as the land he had got out of the Consent Judgment could not easily satisfy the agreement.

The defendant averred that he decided to lodge a caveat over the suit land in May 2019 to protect his interests over the suit land since he was already in possession and said Asaba had been trying to evict him from the suit land on numerous occasions.

- 5 The defendant equally lodged a counterclaim against the counter-defendants for the following orders; - *1. A declaration that the counter-claimant is the lawful owner of 0.25 acres of land situated in Kyadondo Block 182 Plots 1924 and 1925 land at Bulindo measuring an area approximately 0.046 hectares and o.0477 hectares* 10 *respectively comprising part of the former Kyadondo Block 182 plot 50 at Bulindo Wakiso.* - *2. An order of specific performance by the 1st and 2nd counter-defendants to execute land transfer forms and all the necessary documentation in favour of the counter-claimant.* - 15 *3. An order to the Commissioner Land Registration to register the counterclaimant as the registered proprietor of the suit land.* - *4. A permanent injunction against the counter-defendants restraining them, their assignees, successors in title or any other person deriving any title whatsoever from them, from dealing with the suit land in any manner whatsoever except* - 20 *in helping the counterclaimant deal with his interests.* - *5. General damages against the 1 st and 3rd counter-defendants.* - *6. Interest on prayer (5) from the date of Judgment until payment in full.* - *7. Costs of the suit against the 1st and 3rd counter-defendants.*

According to the counterclaim, it is the counterclaim's averment that the counterclaimant purchased 0.50 acres of equitable interest owned by the 1st 25 counterdefendant in land comprised in Kyadondo Block 182 plot 50 land at Bulindo measuring approximately 16.01 hectares on the 9th March 2015. That at the time of purchase, the suit land was registered in the names of Musana Mixed Farm Limited/ Musana Investments Limited and the 1st counter-defendant on instructions of 30 Kiggundu Fred, a lawful Tenant / kibanja holder then was in the process of

Page **5** of **35**

5 subdividing the land with the intention of securing a certificate of title in favour of Kiggundu Fred and Phillipo Kafeero who had decided to turn their Bibanja interest into a legal interest.

The counterclaimant contended that the 1 st counter-defendant was supposed to negotiate with the registered proprietor the amount of money that the said tenants 10 were supposed to pay and fund the whole process of obtaining the certificates of title from them and in return for his services, the 1st counter-defendant was given one care of the eight acres of land owned by both Kiggundu Fred and Phillipo Kafeero (bibanja holders) as payment for his services.

- The counterclaimant went ahead to state that in a bid to raise funds to fulfill his obligations, the 1st 15 counter-defendant sold an equitable interest to the counterclaimant with a promise of acquiring a legal interest and it was agreed that the counterclaimant acquires immediate possession by placing a pole fence around the land till the land is fully handled over by introducing the counterclaimant to the authorities of the area and the counterclaimant took possession of the same to date. - The counterclaimant contends that it was agreed with the 1st 20 counter-defendant on consideration of Uganda Shillings 75,000,000 (Uganda Shillings seventy-five million) and the counterclaimant paid an initial deposit of Uganda shillings 25,000,000 (twenty-five million) and he subsequently paid another deposit of Uganda shillings 6,000,000 (Uganda Shillings six million) leaving a balance of 25 Uganda shillings 44,000,000 (Uganda Shillings forty-four million).

The counterclaimant contended that the 2nd counter-defendant's agents Rajab Bashir Mugerwa and Mulongo Peter as well as counsel for the counterclaimant opened boundaries of the kibanja interests, marked and surveyed out the counterclaimant agreed portion of land. The counterclaimant further averred that the 1st counter-

5th July 2024

5 defendant failed to execute the memorandum of understanding entered into with Kiggundu Fred and Kafeero Phillipo to its logical conclusion.

The counterclaimant further contended that Kiggundu Fred and Kafeero sold their kibanja interest to the 2nd counter-defendant who went on to complete the subdivision of the land and obtained legal interest in the suit land as the registered 10 proprietor of Kyadondo Block 182 plots 1924 and 1925 at Bulindo. That the counterclaimant halted payments of the consideration when he realized that the 1 st counter-defendant had failed to fully execute the memorandum of understanding despite the consideration paid to him by the counter claimant to fully execute the same.

- According to the counterclaim, the 1st 15 counter-defendant filed a suit against Fred Kiggundu HCCS No. 874 of 2018 to secure his legal interest in accordance with the memorandum signed between Fred Kiggundu and the 1st counter-defendant. That the 1st counter-defendant realized that it might take long to obtain the suit land, after which the 1st counter defendant requested the counterclaimant to refund the monies - 20 paid by him, which request was allowed and the two parties entered into a deed of settlement on 13th August 2018, which deed the 1st counter-defendant failed to honour and instead allowed the counterclaimant to continue in possession of the suit land. - The counterclaimant went ahead to aver that on 1st February 2019, the 1 st counter 25 defendant entered into a consent agreement in Civil Suit 874 of 2018 wherein he obtained 0.25 acres from Kyadondo Block 182 plots 1924 and 1925 a quatum meruit for the work done in the memorandum of understanding and the suit land was covering the plot where the counter claimant was already in possession of. The counterclaimant further contends that the 1st counter-defendant has intentionally - 30 ignored and declined to fully hand over the certificate of title of 0.25 acres which is

Page **7** of **35**

5 an equivalent of the consideration paid by the counterclaimant and received by the 1 st counter-defendant and keeps interfering with the possession of the same.

The counterclaimant claims that he was left with no option but to lodge a caveat on the certificate of title of the suit land to protect his interest as a purchaser of the suit land. The counterclaimant further avers that he is ready to pay the balance of Uganda

10 shillings 6,500,000 (six million five hundred thousand) for the 0.25 acres in his possession.

The counter claim states that 1 st counter-defendant after realizing that the counterclaimant is legally in possession of the suit land connived with the 3rd counter-defendant, forged an agreement and the 3rd counter defendant filed this suit

- 15 to try and defeat the interests of the counterclaimant. The counterclaimant claims that the 3rd counter-defendant has never been in possession or claimed an interest in the suit land and the area local authorities are all aware of the counterclaimant's interest in the suit land having been introduced by the 1st counter defendant. Furthermore, the counterclaimant averred that the agreement between the 1st - counter-defendant and the 3rd counter-defendant was forged, the 1st 20 counterdefendant has applied to remove the caveat lodged by the counterclaimant on the suit land as the owner.

In reply, the 2nd and 3rd counter-defendants filed individual replies to the counterclaim. The 2nd counter defendant contends that he lawfully acquired interest

25 in the suit land formerly comprised in Kyadondo Block 180 plot 50, by way of assignment from Fred Kiggundu, but he no longer has any interest in the current disputed plots 1924 and 1925 which emanated from plot 50 by sub-division.

The 2nd counter-defendant stated that around July 2015, he was approached by a land broker who informed him that there was land from sale measuring approximately


5 1.685 acres forming part of the land then comprised in Kyadondo Block 180 plot 50 at Bulindo and was being sold by a one Fred Kiggundu. The 2nd counter-defendant further contends that he inquired into the proprietorship of the said land and conducted the requisite due diligence with the land office in Wakiso which confirmed that the land comprised in Kyadondo Block 182 plot 50 at Bulindo was 10 at the time registered in the names of the company called Musana Mixed Farm Limited.

The 2nd counter-defendant also stated that he made further inquiries as to why the vendor was not the registered proprietor whereof he was informed that the vendor Fred Kiggundu was a lawful occupant of the land owned by and registered in the

- 15 names of Musana Mixed Farm Limited occupying approximately 8 acres thereof. It was averred that the said registered proprietor had granted the vendor an opportunity to regularize his interest by surrendering all the land he was hitherto occupying to the registered proprietor in exchange for a legal interest on approximately 1.8 acres whereof he could be registered as proprietor of that portion of land. - The 2nd 20 counter- defendant went on to aver that the vendor who had limited financial resources to facilitate the process of acquisition of title for the 1.8 acres decided to sell off his interest therein to prospective buyers who could then obtain transfer forms in their favour from Musana Mixed Farm Limited and get registered on the title. The 2nd counter-defendant also averred that it was confirmed with the officials - 25 of Musana Mixed Farm Limited that the vendor (kibanja holder) had authority to deal with the land, could sell or assign and or transfer his interest therein to third parties.

The 2nd counter-defendant also averred that after concluding all the necessary due diligence and confirming that there was no caveat on the title nor any encumbrance on the land physically, the 2nd 30 counter-defendant and the said Fred Kiggundu

Page **9** of **35**

5th July 2024 5 (kibanja holder) executed a deed assignment whereof the latter assigned and transferred all his interest in 1.685 acres of the land in plot 50 to the 2nd counterdefendant in exchange for valuable consideration.

It is the 2nd counter-defendant's averment that he caused a subdivision and created multiple plots including the disputed 1924 and 1925 each measuring 11.5 decimals 10 and got registered as the proprietor, after which he took possession and started grading the land. The 2nd counter-defendant averred that he was taken aback when the 1st counter-defendant approached him and informed him that he had acquired a prior equitable interest in the same land from Fred Kiggundu in exchange for money and assisting the latter to obtain a certificate of title.

The 3rd 15 counter-defendant (plaintiff) avers that he purchased the suit land from the 1 st counter-defendant on 9th January 2015 earlier than the counterclaimant's purchase of 9th March 2015. The 3rd counter-defendant reiterated the averments made in the plaint.

Court directed the parties to file a joint scheduling memorandum, trial bundles and 20 witness statements. At the scheduling conference, the parties advocates agreed on the following issues:

- *1. Whether the defendant is a trespasser on the suit land?* - *2. Whether the defendant/ counterclaimant has a valid claim/ interest in the suit land against the 1st and 3rd counter-defendants?* - 25 *3. In the alternative, without prejudice to the above two issues, whether the defendant has any interest in the suit land which is registered in the names of the 2nd counter-defendant?* - *4. What are the remedies available to the parties?*

Page **10** of **35**

5 The plaintiff adduced evidence from one witness, the plaintiff himself Kateregga John **(PW1)** while the defendant adduced his own evidence that is the defendant himself Emmanuel Bamwitte **(DW1)** and Kikambi Gerald who is the 2nd counter defendnat equally adduced oral evidence in court **(DW2).**

The parties also relied on documentary evidence which was admitted, marked and exhibited. The plaintiff (3rd 10 counter defendant) relied on the following documents;

- *a) Sale agreement between Asaba Rukyalekera and Mr. Katerega John in respect of Kyadondo Block 182 plot 50 land at Bulindo Waksio marked as exhibit PE1* - *b) Memorandum of understanding between Fred Kiggundu, Phillipo Kafero and Asaba Rukyalekera dated 9* 15 *th October 2014 marked as exhibit PE2* - *c) Memorandum of understanding between Roy Karugaba and Fred Kiggundu dated 16th December 2014 marked as exhibit PE3* - *d) Proposed subdivision sketch drawing of plot 50 block 182 Kyadondo marked as exhibit PE4* - *e) Decree in C. S No. 874 of 2014 dated 25th* 20 *February 2019 marked as exhibit PE5* - *f) Receipts dated 19th January 2016 by Asaba Rukyalekere in respect of Uganda shillings 4,000,000 (four million) marked as exhibit PE6* - *g) Receipt of Uganda shillings 5,000,000 (five million) dated 5th November 2015* - 25 *marked as exhibit PE7* - *h) Addendum to the sale agreement dated 29th March 2019 dated 29th March 2019 marked as exhibit PE8* - *i) Photographs of the suit land dated 2nd September 2020 taken by Rukyalekere Asaba marked as exhibit PE9.*

Page **11** of **35**

- 5 On the other hand, the defendant (counter climant) relied on the following documents; - *a) Sale agreement between Asaba Rukyalekere and Emmanuel Bamwite dated 9 th March 2015 marked as exhibit DE1* - *b) Acknowledgment receipt by Asaba Rukyalekere dated 23rd April 2015 for a* 10 *sum of Uganda shillings 6,000,000 (six million) marked as exhibit DE2* - *c) Acknowledgment receipt by Asaba Rukyalekere dated 20th March 2015 for a sum of Uganda shillings 3,200,000 (the million two hundred thousand) marked as exhibit DE3* - *d) Memorandum of understanding between Asaba Rukyalekere and Kikambi* - *Gerald dated 1st* 15 *February 2019 in respect of Kyadondo Block 182 plots 1924 and 1925 marked as exhibit DE4* - *e) Photographs dated 2nd September 2020 marked as exhibit DE5 (a, b and c)* - *f) Notice of caveats addressed to Kikambi Gerald in respect of Kyadondo Block 182 plot 1925 at Bulindo marked as exhibit DE6* - *g) Notice of caveat dated 4th* 20 *September 2020 addressed to Emmanuel Bamwite in respect of a notice to remove a caveat regarding Kyadondo Block 182 plot 1924 marked as exhibit DE7* - *h) Notice of withdraw of C.s. 65 of 2018 in Chief Magistrate Court of Wakiso dated 27th July 2020 between Emmanuel Bamwite and Asaba Rukyalekere* 25 *marked as exhibit DE8* - *i) Deed of settlement dated 13th August 2018 between Emmanuel and Asaba Rukyalekere marked as exhibit DE9* - *j) Letter dated 23rd February 2021 from Wagabaza & co Advocates addressed to the Managing Partner Tumusiime Irumba & Co Advocates marked as* 30 *exhibit DE10*

#### 1 st 5 counter-defendant's documents

- *1. Certificate of title for Kyadondo Block 182 plot 50 marked as exhibit DE11.* - *2. Court Order in respect of M. A 758 of 2017 between Asaba Rukyalekere and Fred Kiggundu & Anor dated 28th June 2018 marked as exhibit DE12.* - *3. Pleadings in Waksio Chief Magistrate C. S No. 65 of 2018 between Emmanuel* 10 *Bamwite & Asaba Rukyalekere marked as exhibit DE13.* - *4. Letter from Rwabwogo & Co Advocates dates 18th August 2020 addressed to Emmanuel Bamwitte marked exhibit DE14.*

#### *3 rd Counter-defendant's documents*

- *1. Certificate of title for Kyadondo block 182 plot 1924 in the names Kikambi* - *Gerald under instrument no. WAK00211864 registered on 15* 15 *th March 2019 marked exhibit DE15.* - *2. Certificate for Kyadondo Block 182 plot 1925 in the names of Kikambi Gerald under WAoo211864 registered on 15th March 2019 marked exhibit DE16.* - *3. Transfer forms in respect of Kyadondo Block 182 plot 1924 by Kikambi* - *Gerald to Asaba Rukyalekere dated 19th* 20 *February 2019 marked exhibit DE17.* - *4. Transfer forms in respect of Kyadondo Block 182 plot 1925 from Kikambi Gerald to Asaba Rukyalekere dated 13th February 2019 marked exhibit DE18.*

## **Representation**

At trial, the plaintiff (3rd counter defendant) and the1 st counter defendant were 25 represented by the **Counsel Aleri Alex Adrew,** while **Counsel Nyonyintono Asuman and Counsel Sodo Brian** represented the defendant/ counterclaimant and **Counsel Antonia Natukunda** representd the 2nd counter-defendant.

**Locus visit**

On 26 5 th April 2024 at 10.34 am, in the presence of Counsel for the defendant/ counterclaimant, counsel for the 1st and 3rd counter-defendant/ plaintiff and the 2 nd counter-defendant court visited the locus in quo in the presence of all the parties. Court visited locus in quo pursuant to Order 18 rule 5 of the Civil Procedure Rules and **Practice Direction No. 1 of 2007** which provides that courts handling land 10 matters should as so far as possible, interest themselves in physically visiting properties under dispute before pronouncing themselves on the proprietary rights of the parties.

The purpose of visiting the *locus in quo* in a nutshell, is to clarify on evidence already adduced in court thereby enabling the trial court to understand the evidence

- 15 better. It is also intended to harness the physical aspects of the evidence in conveying and enhancing the meaning of oral testimony and therefore must be limited to an inspection of the specific aspects of the case as canvassed during the oral testimony in court and testing the evidence on those points only. *(See Odongo Ochama Hussein versus Adul Rajabi HCCA No. 119 of 2018)* - 20 The practice of visiting the *locus in quo* is also to check on the evidence by the witnesses and not to fill in gaps in their evidence for them or least court may run the risk of turning itself into a witness in the case. *(See Fernades v Noroniha [1969] EA 506 & Nsibambi v Nankya [1980] HCB 81).*

## **Burden and standard of proof in Civil Cases**

25 In civil matters like the instant case, the burden of proof rests on the plaintiff since it is trite that he who alleges ought to prove his claim. The standard of proof is on a balance of probabilities.

According to **Section 101(1) and (2) of the Evidence Act Cap.6 Laws of Uganda**,

Page **14** of **35**

5 "*Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he or she asserts must prove that those facts exist".*

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. **Section 102 of the Evidence Act** goes on to provide 10 that;

*"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side and Section 103 provides that "the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is* 15 *provided by any law that proof of that fact shall lie on any particular person".*

With this background, I shall proceed to evaluate the evidence on record and resolve the issues raised by the parties.

## **Resolution of issues**

- 20 While in court, counsel for the parties were directed to file written submissions and the same was done. To that end, the same shall be put into consideration when arriving at my decision. I intend to resolve the first and second issues together since the same are related and the logical conclusion of the first issue shall resolve the second issue. - 25 Issue No.1: *Whether the defendant trespassed on the suit land?*

Issue No. 2: *Whether the defendant/ counterclaimant has a valid claim/ interest in the suit land against the 1st and 3rd counter-defendants?*

5 Trespass to land is premised upon interference with possession to land. The concept of trespass to land has been defined and discussed in a plethora of cases. In the case of **Justine E M N Lutaaya versus Sterling; Civil Eng. Appeal No.11 of 2002***; the Supreme Court held that;*

*"Trespass to land occurs when a person makes an unauthorized entry* 10 *upon another's land and thereby interfering with another's person lawful possession of the land".*

In the case of **Adrabo Stanley versus Madira Jimmy HCCS No. 24 of 2013, the** Hon. Justice Stephen Mubiru stated that;

"*Trespass is an unlawful interference with possession of property. It is* 15 *an invasion of the interest in the exclusive possession of land, as by entry upon it. It is an invasion affecting an interest in the exclusive possession of property.*

*The cause of action for trespass is designed to protect possessory, not necessarily ownership, interests in land from unlawful interference.* 20 *Therefore, only one whose right to possession has been violated may technically maintain an action for trespass."*

The gist of an action for trespass to land is violation of possession, and not a challenge to title. The possession ought to be actual or constructive and the plaintiff must demonstrate his or her exclusive possession and control of the land.

- 25 In the case of **Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd C. A. C. A No. 4 of 1987,** the Court of Appeal laid out the conditions to be satisfied in order to successfully prove trespass to land. These include; - *i. That the disputed land belonged to the plaintiff*

# 5 *ii. That the defendant entered upon the disputed land iii. That the entry was unlawful or that the defendant had no claim of right or interest in the disputed land.*

### *The disputed land belongs to the plaintiff*

On this ingredient, counsel for the plaintiff/ 3rd counter-defendant submitted that the 10 plaintiff fully purchased the suit land, paid for the same and took over possession of the suit land from the vendor Asaba Rukyalekere (1st counter-defendant) for a consideration of Uganda Shillings 80,000,000 (eighty million). Counsel for the plaintiff further submitted that the vendor was the lawful owner of land measuring one acre partly on Kyadondo Block 182 plot 50 at Bulindo registered in the names 15 of Musana Investments Ltd.

According to the case of **Ojwang versus Wilson Bagonza CACA No. 25 of 2002,** for one to claim an interest in land, he or she must show that he or she acquired an interest from someone who previously had an interest or title thereon. Counsel for the plaintiff submitted that the plaintiff through his pleadings had proved that he purchased the suit land from the 1st 20 counter-defendant. Counsel went head to submit that the defendant does not dispute that the plaintiff executed an agreement with the vendor/ 1 st counter-defendant on 9th January 2015 but rather alleges that the said agreement was forged without showing proof of the alleged forgery. It is counsel for the plaintiff's argument that the defendant has failed to prove on a balance of

probabilities that the sale agreement dated 9 th 25 January 2015 was a forged for it to be struck off from the records.

Counsel for the plaintiff went ahead to submit that it is the plaintiff's evidence in paragraphs 10-12 of his witness statement that exhibit PE8 which is a sale agreement dated 29th march 2019 ratified the sale agreement of 9th January 2015 and as such

5 the contract under exhibit PE1 was voidable and not void and as such the plaintiff had the option to either affirm or ratify the contract which he did and accepted the benefit of the suit land. Counsel also went ahead to argue that according to the defendant's defence and his testimony in cross examination, the defendant acknowledged that there was an enforcement for the recovery of the money paid for the purchased land from the 1st 10 counter defendant.

In reply, counsel for the defendant/ counterclaimant submitted that it is unchallenged evidence that the defendant entered into a sale agreement to buy land measuring 50 (fifty) decimals at Bulindo at Kyadondo Block 182 plot 50 at Bulindo. Counsel went ahead to submit that under Clause 4 (a) of the said agreement, it was stated that the

15 purchaser who was the defendant/ counterclaimant would take possession of the suit land and would be limited to only fencing off and securing the 50 decimals that he had acquired.

Counsel for the defendant relied on the case of **Draza Moses versus Abdul Salam & Anor HCCS No. 16 of 2013** in which the case of **H. M Kadingidi versus Essence**

20 **Alphonse HCCS No. 269 of 1986** was quoted wherein it was held that "a purchaser who has concluded a sale agreement with the owner, immediately becomes the owner of the land and the vendor becomes his trustee in title. This is because the purchaser is potentially entitled to the equitable remedy of specific performance …….. it does not matter the date of completion, when the purchaser may pay his 25 money and take possession, has not yet arrived. Court further stated that a purchaser upon concluding a sale agreement with the owner and making part payment of the purchase price, immediately becomes the owner in equity of the land".

It was counsel for the defendant/ counterclaimant's arguement that the suit land belongs to the defendant by virtual of the unchallenged sale agreement which was

signed by the 1st 30 counter-defendant, a fact that was equally not challenged.

Page **18** of **35** 5th July 2024 - 5 Given the several claims of ownership over the suit land, it is paramount that we determine the true ownership of the suit land before we proceed to the intricacies of trespass. As such, it is important, I delve into the history of ownership of the suit land. - According to the joint scheduling memorandum at page 7, it was averred by the 2nd 10 counter defendant that a one Fred Kiggundu was the lawful occupant of 8 acres of land (including the suit land) originally owned by Musana Mixed Farm Limited. According to exhibit PE2, the 1st counter-defendant entered into a memorandum of understanding with Fred Kiggundu and Phillipo Kafeero on 9th October 2014 as the lawful bibanja owners of approximately 8 acres as part of the land comprised in Kyadondo Block 182 plot 50 land at Bulindo, wherein the 1st 15 counter-defendant was - allowed by the above mentioned kibanja owners to negotiate on the former's behalf with the registered proprietor (Musana Investments Limited), so as to convert the kibanja owners' interest into a registerable interest. - According to clause 6 of exhibit PE2, in return for the 1st counter-defendant's 20 services, Kiggundu and Kafeero agreed to transfer an area equivalent to one acre to the 1st counter defendant as a consideration. Under clause 7 of the same agreement, it was agreed that the 1st counter-defendant was free to occupy, subdivide, sell and transfer his interest in the one acre to third parties.

It should be pointed out clearly that according to exhibit PE2, Kiggundu Fred and 25 Phillipo Kafeero were lawful occupants or bibanja owners on registered land owned by Musana Mixed Farm/ Musana Investments Limited then in accordance with Section 29 of the Land Act.


5 A lawful and bonafide occupant's interest is loosely translated to mean a 'kibanja' interest in Uganda's Torren system. **Section 29 of the Land Act as amended** gives the meaning of a lawful and bonafide occupant of land as follows;

### *(1)'Lawful occupant" means;*

- *a) A person occupying land by virtue of the repealed;* - 10 *i. Busuulu and Envujjo law of 1928;* - *ii. Toro Landlord of 1937;* - *iii. Ankole Landlord and Tenant Law 1937;* - *b) A person who entered the land with the consent of the registered owner and includes a purchaser; or* - 15 *c) A person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.* - *(2)'Bonafide occupant' means a person who before the coming into force of the Constitution;* - 20 *a) Had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or* - *b) Had been settled on land by the Government or an agent of the Government which may include a local authority.* - 25 *Section 31 (2) of the same Act stipulates that a tenant by occupancy is a tenant of a registered owner under such terms and conditions and under subsection 3.* Section 34 of the Land Act governs transactions between registered land owners and tenants by occupancy. **Section 34 subsection 1 of the Land Act as amended** provides that;

5th July 2024

Page **20** of **35**

5 *"A tenant by occupancy may, in accordance with the provision of this section, assign, sublet or subdivide the tenancy with the consent of land owner".*

#### *Subsection 3:*

*"prior to undertaking any transaction to which subsection (1) refers,* 10 *the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his consent to the transaction". (emphasis on the underlined)*

**Section 34 (9) of the same act** stipulates that;

*"No transaction to which this section applies shall be valid and* 15 *effective to pass any interest in land if it is undertaken without a consent as provided 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".*

In the instant case, it is very clear that the registered proprietor of the suit land that

20 is Musana Mixed Farm was not involved in the transaction that led to the conclusion of exhibit PE2. Furthermore, there is no proof that the consent of the former registered proprietors of the suit land Musana Mixed Farms Limited was sought before Kiggundu and Kafeero as the former lawful occupants of the suit land on one part and the 1st counter-defendant (Asaba Rukyalekere) entered into the 25 memorandum of understanding which was exhibited as PE2. This in fact is contrary to Section 34 subsections (1), (3) and (9) of the land Act.

It is pertinent to note that the provisions of **Section 34 (3) of the Land Act** are couched in mandatory terms which means that it is essential that the consent of a landlord be sought by a tenant by occupancy before any transaction is made relating 30 to the tenant's interest in the registered land. Since this legal step was not taken by

5 the parties to exhibit PE2, I find that the said memorandum of understanding is invalid and illegal.

As properly cited by Counsel for the plaintiff, in the case of **Ojwang versus Wilson Bagonza (supra),** *where it was held that for one to claim an interest in land, he or she must show that he or she acquired an interest from someone who previously had*

- 10 *an interest or title thereto. S*ince the memorandum of understanding between the lawful occupants and Asaba Rukyalekere is not legally binding, that would mean that the former lawful occupants Kiggundu Fred and Kafeero Phillipo did not pass any legal or equitable interest to Asaba in the one acre referred to in paragraph 6 of exhibit PE2 which formed part of the suit land. - 15 It was the evidence of both the plaintiff and defendant/ counterclaimant that they purchased land comprised in Kyadondo Block 182 Plot 50 measuring approximately 50 decimals land at Bulindo from the 1st counter-defendant on 9th January 2015 and 9 th March 2015 respectively. According to paragraphs 4 and 5 of the plaintiff's witness statement, the plaintiff staed that he purchased the suit land from the 1st - 20 counter-defendant relying on the latter's performance as the purported lawful owner after presenting the executed memorandum of understanding between Kiggundu, Kafeero and the 1st counter defendant (PE2). During cross examination, the plaintiff admitted that he did not conduct any due diligence before he purchased Kyadondo Block 182 plot 50 at Bulindo in 2015. - 25 In regard to the defendant/ counterclaimant, according to paragraphs b-d of the counterclaim, the counterclaimant admits to being aware of the fact that the suit land was neither registered in Asaba's names nor was Asaba a lawful occupant on the same but rather the 1st counter defendnat was working as an agent of the lawful occupants so as to process the subdivision of the lawful occupants' land with an 30 intention of securing a certificate of title. According to paragraph d, the

Page **22** of **35**

5th July 2024

counterclaimant contended that the 1st 5 counter defendant sold an equitable interest in the suit land to the former in a bid to raise funds with a promise of securing a legal interest for the counterclaimant.

These facts are proof that both the plaintiff and the defendant has '*actual notice'* that the suit land was neither registered in the 1st counter-defendant's names nor was the 10 latter a tenant by occupancy, but rather, they all relied on the memorandum of understanding exhibited as PE2 to prove that Asaba had an equitable interest in the suit land which did not confer any type of valid land interest to him. It is a common principle of law that land is very valuable and as such proper investigations must be conducted before purchase. In the famous case of *Sir John Bagaire v. Arsi CACA*

15 *No. 7 of 1996* **Okello J**- held that;

"land *is not vegetables, properties bought from unknown sellers are valuable properties, buyers are expected to make investigations not only of the land but also of the sellers before the purchase".*

The fact that the 1st counter defendant was neither a kibanja holder nor a registered 20 proprietor of the suit land should have been treated as the first red flag to alert the plaintiff and the defendant not to purchase the suit land until the issue of ownership was rectified.

Furthermore, as earlier stated no legal of equitable interest was passed to the 1 st counter-defendant by virtue of exhibit PE2, and therefore, the former could

25 not have passed any title to the plaintiff nor the defendant since none of the parties conducted due diligence. Both the plaintiff and the defendant do not dispute the fact that their vendor (Asaba Rukyalekere) was neither a registered proprietor on the suit land nor a lawful occupant, but rather they depended on exhibit PE2, which as earlier stated is illegal for contravening the provisions 5 of Section 34 subsections 1, 3 and 9 of the Land Act as amended. Therefore, the 1st counter-defendant neither passed title to the plaintiff nor the defendant.

Regarding the first condition for trespass, the facts of the case and evidence adduced have proved that that the suit land neither belongs to the plaintiff nor the defendant since none of them acquire any interest from the registered 10 proprietor nor from the lawful occupants on the suit land.

#### *The defendant entered upon the disputed land*

It was counsel for the plaintiff's submission that the plaintiff's sale agreement exhibited as DE1 delivered partial possession of the purchased land awaiting formal subdivision and creation of certificates of title. Counsel went ahead to submit that in

- 15 paragraph 12 of the plaintiff's witness statement, it was confirmed that the plaintiff employed a one Ssebaduka Stephen Wasswa who planted banana plants which were all destroyed by the defendant. Counsel for the plaintiff further argued that the defendant had no actual possession not until he constructed a perimeter wall fence. - On the other hand, counsel for the defendant/ counterclaimant submitted that the 20 evidence on record shows that the agreement executed between Asaba and the defendant (DW1) under clause 4 gave the defendant/ counterclaimant immediate possession after payment of the first installment and the same was never challenged. Furthermore, it was counsel for the defendant's submission that before buying the suit land, he visited the same with his lawyer, Mulongo Peter and Asaba Rukyalekere - 25 (the vendor), after which the defendant legally took over possession of the land and acquired an equitable interest.

During the locus in quo visit, court observed that the disputed land is currently being occupied by the defendant who on admission, testified that he constructed a perimeter wall around the suit land and proceeded to construct a house for his care-

Page **24** of **35** 5th July 2024

5 taker. This evidence was not rebutted by the plaintiff during the locus visit. Therefore, I am convinced that the defendant entered the suit land.

## *The entry was unlawful or that the defendant had no claim of right or interest in the disputed land*

It must be reiterated that when determining trespass action, it is vital that the plaintiff 10 proves that he or she has been in possession of the suit land. In the case of **Kaggwa Micheal versus Apire John HCCA No. 126 of 2019,** the Hon. Justice Stephen Mubiru stated that;

*"Possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others but persons with a* 15 *better title. Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession (see Asher v. Whitlock (1865) LR 1 QB 1). Possessory title is not based on a documentary title but on the exclusive occupation of the land (or receipt of rent from the land) for a period of time."*

20 I am persuaded by Justice Mubiru's findings in **Adrabo Stanley versus Madira Jimmy HCCS No. 24 of 2013, Justice Mubiru** where he stated that,

> "T*respass when pleaded as part of a suit for recovery of land, requires the plaintiff to prove either actual physical possession or constructive possession, usually through holding legal title.*

25 *There must have been either an actual possession by the plaintiff at the time when the trespass was committed, either by himself or by his authorized representative, or a constructive possession with the lands unoccupied and no adverse possession. In essence, an action for*

5 *recovery of land is founded on trespass involving a wrongful dispossession."*

As previously concluded in the previous ingredient of trespass, the defendant admitted that he has been in possession of the suit land since he paid the first installment of his purchase price to the vendor. **Section 16 of the Evidence Act**

- 10 defines **an admission** as; *"a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances, hereinafter mentioned."* I am alive to the fact that an admission is not conclusive of the matters admitted but it may operate as estoppel. (See **Section 28 of the Evidence Act).** - 15 It was the plaintiff's testimony that he took possession of the suit land and planted banana plants on the suit land after he had paid his last installment and that the same were destroyed by the defendnat when he took possession by constructing perimeter wall fence. The plaintiff attached a photograph of the Suitland marked exhibit PE9 dated 2nd September 2020. The said photograph shows vacant land surrounded by a - 20 perimeter wall, but the same does not show any sign of a banana plantation. During cross examination, the plaintiff (PW1) testified that by the time the photograph marked PE9 was taken, the banana plantation had already been cut down.

It is trite that he who alleges, must prove. The plaintiff did not adduce any evidence to prove the existence of a banana plantation or any kind of occupation of the suit

25 land. On the other hand, the court observed that the defendant has a semi-permanent structure on the suit to prove that he is in occupation. That notwithstanding, it has already been established that the vendor (Asaba Rukyalekere) did not pass title to the plaintiff nor defendant, therefore, it suffices to say that the defendant's entry of the suit land was unlawful and neither does he have a claim of right or interest on

5 the suit land. Therefore, I am satisfied that the defendant unlawfully entered the suit land.

# Issue No. 3: *In the alternative, without prejudice to the above two issues, whether the defendant has any interest in the suit land which is registered in the names of the 2nd counter-defendant?*

I shall begin by analyzing the evidence on record to determine how the 2nd 10 counterdefendant acquired an interest in the suit land. According to exhibit PE3, the former lawful occupant of the suit land Fred Kiggundu entered into a memorandum of understanding with Musana Mixed Farm Ltd (the registered proprietors) on 16th December 2014, wherein it was agreed that the lawful tenant would trade his 8 acres 15 of equitable interest to the landlord for 1.8 acres of registered interest.

Under paragraph 4 of exhibit PE3, it was agreed that this memorandum of understanding would take precedence over any other document, contract, agreement or any dealings of both parties with any party in relation to this land. This in fact means that the memorandum of understanding exhibited as PE3 took precedence 20 over the memorandum of understanding between Fred Kiggundu and Asaba Rukyalekere dated 9th October 2014 and marked as exhibit PE2.

Furthermore, under PE3, it was also agreed under paragraph 4 that the tenant would be free to transfer, sell or distribute his 1.8 acres of registered land as a lawful owner. In his witness statement under paragraph 4, the 2nd counter-defendant (DW2)

25 testified that in 2015, he was approached by a land broker who informed him about land forming part of the suit land which was owned by Fred Kiggundu (the former lawful occupant of the suit land). According to paragraph 7 of the same witness statement, the 2nd counter-defendant stated that it was confirmed by the officials of Musana Mixed Farm Limited that the lawful occupant Fred Kiggundu had the 5 authority over the suit land to sell, assign or transfer his interest. This is corroborated by paragraph 4 of exhibit PE3 and is aligned with the provisions of Section 34 (1) of the Land Act.

The 2nd counter-defendant testified in paragraph 8 of his witness statement that he confirmed that there was no caveat on the suit land and proceeded to execute a deed of assignment on 14th 10 September 2017 between himself and Fred Kiggundu and the same was marked exhibit DE19, wherein the assignor (Fred Kiggundu) assigned his interest in Mengo Kyadondo Block 182 plot 50 land at Bulindo to the assignee (Gerald Kikambi) who is the 2nd counter defendant.

As earlier cited **Section 34 of the Land Act** governs transactions between the 15 registered land owners and tenants by occupancy, wherein it is paramount that the consent of the land lord is sought before any transaction is commenced. In the instant case, I am convinced by the evidence adduced in court proved that the agreement between the 2nd counter-defendant and the Fred Kiggundu (former lawful occupant) of the suit land adhered to the conditions laid out in Section 34 hence the 2nd counter-20 defendant legally obtained a legal title in the suit land.

During cross examination, the 2nd counter-defendant (DW2) confirmed that after acquiring land comprised in Kyadondo Block 182 plot 50, he proceeded to grade the land and subdivide the suit land which led to the creation of plots 1924 and 1925 (the suit land in the instant case) as per exhibits DE15 and DE16. According to

exhibits DE17 and DE18, the 2nd 25 counter-defendant executed transfer forms in favour of the 1st counter defendant for plots 1924 and 1925 on 19th February 2019 and 13th February 2019 respectively.

In the instant case, according to exhibits DE15 and DE16, the suit land is comprised in Kyadondo Block 182 plots 1924 and 1925 land at Bulindo Kira Municipality

5th July 2024

5 Wakiso District, formerly Kyadondo Block 182 plot 50. The said certificates of title are registered in the names of Kikumbi Gerald.

### **Section 59 of the Registration of Titles Act** provide 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* 10 *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* 15 *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. (Emphasis on the underlined part)"*

Following the evidence on record, I am satisfied that the 2nd counter-defendant 20 lawfully acquired his legal interest in the suit land lawfully. As regards to whether, the defendant lawfully acquired an interest in the suit land, this issue has already been resolved in the previous issues. However, for purposes of emphasis, neither the defendant nor the plaintiff have a lawful nor equitable interest in the suit land since they purportedly bought the suit land from the 1st counter-defendant before he 25 acquired any legal or equitable interest in the suit land.

Counsel for the plaintiff also made a submission on the principle of approbation and reprobation. It was counsel's argument that the defendant deposed in paragraphs 18, 19, 20 and 21 of his witness statement that he sought a refund of his money used to purchase the suit land through filing a summary suit against the 1st counter-defendant 5 in the Chief Magistrate Court of Wakiso vide Civil Suit No. 65 of 2018 for recovery of a refund of money, however during cross examination, the defendant testified that he is still interested in his claim for land.

In reply, counsel for the defendant/ counterclaimant submitted that there has been a gross misinterpretation of these principles since the counterclaimant has never derived any benefit from the said sale agreement between himself and the 1st 10 counterdefendant which was already breached by the latter. Counsel went head to assert that it was the counterclaimant's evidence in paragraph 24 of his witness statement that the defendant/ counterclaimant agreed to withdraw the suit in Wakiso court after having a discussion with the 1st counter-defendant and agreeing that the defendant 15 would takes the land worth what he already paid. Counsel goes ahead to argue that the purported cheque which was filed in court is unknown to the defendant.

In the case of *Mubende Parents School Limited versus Uganda Development Back HC (Commercial Division) Civil Suit No. 662 of 2015,* the principle of approbation and reprobation was well discussed by Justice Richard Wabwire. It was stated that 20 the principle of approbation and reprobation is a common law principle which according to the Halsbury's Laws of England, 4th edition, Reissue Volume 16,

paragraph 957, it states that;

*"The principle that a person may not approbate and reprobate expresses two propositions:*

- 25 *1) That the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot reside; and* - *2) That he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out*

Page **30** of **35**

5th July 2024

5 *of the course of conduct which he first pursued and with which his subsequent conduct is inconsistent. Thus as plaintiff, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general afterwards chose to return to the former claim and sue on it;* 10 *but this rule of election does not apply where two claims are inconsistent and the circumstances do not show an intention to abandon one of them.*

Justice Wabwire also cited the case of *Evans versus Bartlam (1987) AC 473, where Lord Russell stated at page 483 that, "the doctrine of approbation and*

15 *reprobation requires for its foundation inconsistency of conduct as where a man having accepted a benefit given to him by a judgment cannot allege the invalidity of the Judgment which conferred the benefit."*

In the case of *Amamu Limited versus Barclays Bank of Uganda Limited HCCS No. 21 of 2010,* Justice Kiryabwire held that the plaintiff approbated

the sale of the suit property to the 2nd 20 defendant since the plaintiff had received a percentage of the proceeds of the sale arising from a Consent Judgment and yet the plaintiff sought to challenge the same Consent Judgment from which he had benefited. In that case, the Honorable Judge found that the plaintiff was estopped from bringing a fresh suit challenging the said Consent 25 Judgment.

In the instant case, the defendant/ Dw1 admitted in paragraph 19 of his witness statement that he entered into a deed of settlement with the 1st counterdefendant for a refund of his money that had been paid for the purchase of the suit land. The defendant also proceeded to state that he continued to remain

30 possession of the suit land uninterrupted until this case was filed.

- 5 In paragraphs 20 and 21 of the same statement, DW1 went ahead to testify that the 1st counter defendant failed to perform the terms of the deed of settlement which led the defendant to file the Summary suit in Wakiso Chief Magistrate's Court vide C. S 65 of 2018 on 14th December 2018. In paragraph 23, the defendant testified that he agreed with the 1st counter-defendant that - 10 the Summary suit should be withdrawn since the defendant was in occupation of the suit land and it was agreed that the defendant would receive a portion of the suit land worth the money that he had been paid.

Upon perusal of this record of court, under exhibit DE14, Rwabongo & Co Advocates wrote letter to the defendant (Mr. Emmanuel Bamwite) as counsel

15 for Asaba Rukyalekere, informing the former about an enclosed Diamond Trust Bank Chedue No. 000090 dated 30th September 2020 for Uganda shillings 33,000,000 (thirty-three million) as full and final settlement of the plaintiff (Bamwite Emmanuel)'s claim vide civil suit no. 65 of 2018 at Chief Magistrate Court of Wakiso. The Chief Magistrate of Wakiso was copied into 20 the letter and the same bears the received stamp of the Chief Magistrate Court

of Wakiso's stamp.

According to exhibit DE13, at page 32 of the of the 1st counter-defendant's trial bundle, Her Worship Esther Nakadama Mubiru, the Chief Magistrate of Wakiso Chief Magistrate Court (then) ordered that Civil Suit No. 65 of 2018

- 25 had been withdrawn after full and final settlement by the defendant to the plaintiff as of 31st August 2020. These proceedings are corroborated by exhibit DE8 which is the notice of withdrawal of Civil Suit No. 65 of 2018 dated 27th July 2020 filed by Arcadia Advocates who were the counterclaimant's lawyer in C. S 65 of 2018 as admitted by the defendant in his witness statement in - 30 paragraph 22.

5 Whereas, the defendant denies any knowledge of the above mentioned cheque in exhibit DE14, the above presented evidence tells a different story. If indeed the defendnat never received the said cheque, he ought to seek appropriate recourse through a proper forum.

In this case, I am convinced that the defendant chose to withdraw civil suit no.

- 10 65 of 2018 from the Chief Magistrate Court of Wakiso on grounds that payment of the refund of the purchase price was paid to him, after which the defendant then turned around to counterclaim for recovery of the suit land portion worth the already paid purchase price in the instant suit hence proof that the defendant wants to receive double benefits. These actions are proof of - 15 approbation. I find that the defendant is estopped from claiming the suit land because he already received a refund of his purchase price vide Chief Magistrate Court of Wakiso Civil Suit No. 65 of 2018.

#### Issue 4*: What are the remedies available to the parties?*

#### **Costs**

20 **Section 27(2) of the Civil Procedure Act Cap 71** provides that costs shall be at the discretion of the court and shall follow the event unless for good reasons court directs otherwise.

It is trite that cost "shall follow the event"; which means that the successful party, shall be entitled to costs. Taking into account the above mentioned

25 findings, before I proceed to making the final orders, I must make mention of the 1st counter-defendant's unwarranted actions. The 1st counter-defendant did not deny selling the same suit property to both the plaintiff and the defendant.

Furthermore, due to these actions, the 2nd defendant was dragged into court proceedings over land in the instant case and yet the latter legitimately and legally

5 acquired the suit land from the equitable owner with the consent of the registered proprietor. Given my above findings, the 1st counter-defendant is ordered to pay the costs of the suit to the 2nd counter-defendant.

In conclusion, it is ordered as follows;

- 10 **a.** This main suit and the counterclaim are both dismissed - **b.** The Commissioner Land Registration is hereby order to vacate the defendant's caveat lodged via instrument number WAK-00220865 on the certificate of titles of land comprised in Kyadondo Block 182 plots 1924 and 1925 land at Bulindo- Kira Municipality Wakiso District. - 15 **c.** A permanent injunction doth issue against the plaintiff and the defendant, their agents, assignees, successors in title, work men and all those who claim, derive interest from them from harassing, trespassing, intimidating, developing or in interrupting the 2nd counter defendant's use and enjoyment of the suit land. - **d.** The 1st 20 counter defendant is hereby ordered to refund the plaintiff's purchase price for the suit to a tune of Uganda shillings 80,000,000. - **e.** The 1st counter-defendant is hereby ordered to pay the costs of the 2nd counterdefendant. - **f.** The plaintiff, the defendant/counter claimant and 1st counter defendant shall 25 bear their own costs.

## **I so order.**

Judgment delivered at High Court, Land Division via ECCMIS this **5 th day of July**

**2024.**

5th July 2024


# **Immaculate Busingye Byaruhanga**

**Judge**

5