[2025] UGHCLD 63

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO. 237 OF 2021**

# **1. KATEREGGA NUHU**

**2. SSEBANDEKE MUHAMMAD**

**3. NANDAWULA RASHIDAH :::::::::::::::::::::::::::::::::::: PLAINTIFFS 4. MBATUDDE ROSE**

### **VERSUS**

**1. KASAGA ABDUL ::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS 2. SSEKAMATE JOHN BOSCO**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

### **JUDGMENT**

# *Introduction;*

1. The plaintiffs brought this suit against the defendants seeking orders inter alia; a declaration that the land comprised in Busiro Block 268 Plot 473 situate at Namusera belongs to all the grand children of the late Nuliat Tegwa, a declaration that the 1st defendant holds the said suit land as a trustee for all the grand children of the late Nuliat Tegwa, a declaration that the purported purchase of part of the said suit land by the 2nd defendant is null

and void, an eviction order against the 2nd defendant, an order directing the 2nd defendant to surrender title of the suit land to the plaintiffs, general damages for inconvenience and costs of the suit.

## *Plaintiff's case;*

- 2. The plaintiffs are some of the grandchildren of the late Nuliat Tegwa the former owner and registered proprietor of land comprised in Busiro Block 268 Plot 473 at Namuseera. That before the demise of the late Nuliat Tegwa, she gave the land to all her grandchildren and some of them started utilizing part of the said land. A meeting was held to discuss the management of the land which was attended by the late Nuriat Tegwa as well and the 1st Defendant was appointed as a caretaker and that the land be registered in his names. - 3. Subsequently, Nuliat Tegwa surrendered the certificate of title and duly signed transfer instruments to the 1st defendant who registered the same into his names to date. Shockingly, the 2nd defendant took possession of part of the suit land and even erected a perimeter wall thereon claiming that he purchased the said land and that he was availed a certificate of title to the parcel of land he acquired interest.

4. That the plaintiffs have on numerous occasions demanded the 2nd defendant to vacate the said land to no avail, that the 2nd Defendant purported to have purchased part of the suit property without the permission and or consent of all the grandchildren of the late Nuliat Tegwa, it was illegal and unlawful.

#### *1st Defendant's case;*

- 5. The 1st Defendant in his defence denied all allegations and stated that it is true that the suit land originally belonged to Nuliat Tegwa and the same was advanced to her grandchildren before her demise. That indeed the family agreed to have the said land registered in the names of the 1st defendant in trust of all the grandchildren of the late Nuliat Tegwa. - 6. That the same was subsequently registered into the names of the 1st Defendant, in 2020 he discovered that the title that was in his custody had been stolen from him by his father Semukutu Abudu and the same was surrendered to the 2nd defendant. The 1st defendant has never sold part of the suit land to any one and that the title to the suit land was only stolen away from him as per the communication that was made to the grandchildren of the late Nuliat Tegwa on 15th November 2020.

7. The 1st defendant contended that the suit was brought in bad faith because he had earlier informed the family that the title was stolen away from him and that they should get in touch with him to see that the same is recovered from whoever has it.

## *2nd Defendant's case;*

- 8. The 2nd Defendant in his defence denied all allegations and stated that he shall raise a preliminary objection to the effect that the suit is frivolous, vexatious and an abuse of Court process for failing to disclose a cause of action against the 2nd defendant and shall pray that the same be struck out with costs. - 9. The 2nd defendant legally bought part of the land comprised in Busiro Block 268 Plot 473 measuring 50ft x 160ft from the late Ssemukutu Abdu who was the father of the 1st defendant on the 15th day of January 2015. That the late Nuliat Tegwa is not the owner of the suit land comprised in Busiro Block 268 Plot 473 at Namuseera but it was the late Ssemukutu Abdu (the father of the 1st Defendant) who owned the said land which is currently registered in the names of the 1st defendant. - 10. That after purchase, the 1st defendant's father handed over the certificate of title to the 2nd defendant for safe keeping and

instructed his son to effect transfer of the title for the portion purchased by the 2nd defendant into his names. However, the 1st defendant's father died on 29th July 2018 before the said transfer could be done but the 2nd defendant sent a condolence message to the widow, Madam Nansereko Amina and the family wherein he informed them of the pending transfer.

- 11. The 1st defendant despite repeated reminder to effect the transfer of part of the suit land bought by the 2nd defendant from his father, he adamantly refused to do so to date, he has instead been in cahoots with the plaintiffs to evict the 2nd defendant from the portion he bought. - 12. That the plaintiffs have not attached any evidence to prove their claim on the suit land, no proof of the family meetings in which the late Nulait Tegwa and the plaintiffs sat in a meeting and choose the 1st defendant as a care taker of the suit land nor agreed that the title be transferred into the names of the 1st defendants as care taker for the grand children of the late Nuliat. The plaintiffs have not shown proof of the assertion that the late Nuliat Tegwa signed transfer forms for the suit land in favour of the 1st defendant that enabled the title to be transferred into the names of the 1st

defendant. That it is not true that the 2nd defendant entered and took possession of the suit land immediately after purchase. The plaintiffs have no legally recognized interest and the plaint discloses no cause of action against the 2nd defendant.

- 13. That the suit land was at all material times owned by the 1st defendant's father who sold it to the 2nd defendant and the former had placed the original certificate of title to the suit land in the hands of the 2nd defendant and would liaise with the 1st defendant to effect the transfer of the title into the names of the 2nd defendant. - 14. The 1st defendant refused to sign transfer forms in favour of the 2nd defendant until he made a complaint to the Land fraud unit at Kibuli police station and the 1st defendant was arrested and it was discovered that he has already sold the land to third parties. The 1st Defendant asked for some time to pay back the purchase price to the third parties he had sold to after which he would effect transfer into the names of the 2nd defendant. - 15. That upon transfer in favour of the 2nd defendant and after demarcating off his portion from Block 268 Plot 111 and 112, the 2nd defendant's title is now Block 268 Plot 472 leaving the residue of Block 268 Plot 473 of which the 2nd defendant now demands a

transfer from the 1st defendant of 50ft by 160ft which land is the subject of this suit. The 1st defendant has never signed transfer forms and that is why the certificate of title is still in the names of the 1st defendant.

16. That the 2nd defendant legally and lawfully purchased part of the suit land from the 1st defendant's father and there was no need for him to seek consent of all the children of the late Nuliat Tegwa.

#### *Plaintiffs' evidence;*

The plaintiffs' case was opened on 26/3/2024 and the plaintiffs led evidence by witness statement;

- 17. PW1, KATEREGA NUHU where he stated in his witness statement that the land originally belonged to Nuliat Tegwa who on the 5/04/2003 held a meeting and advanced the land to her grandchildren who appointed the 1st defendant as a caretaker, the late Nuliat Tegwa surrendered the certificate of title and transfer forms and the land was registered in his names to date. He reechoed the prayers in the plaint. - 18. PW2 NAKALEMA ZAITUNI, a daughter to the late Nuliat Tegwa stated that before the demise of her mother, she called for a meeting of all her children on 5th April, 2003 where she talked

about many issues in regard to land comprised in Busiro Block 268 Plot 461 which she advanced to all her grandchildren who appointed the 1st defendant as a care taker to the same.

## *Defendants' evidence***;**

The Defendants' case was opened on 29/4/2024 and they led evidence by witness statements

- 19. DW1 Kassagga Abdul stated that the land was originally registered in the names of their grandmother the late Nuliat Tegwa. That a meeting was convened on 05/04/2003 at 3pm at Kisimbiri B Central zone Wakiso and in attendance were his father (Ssemukutu Abdu) our paternal aunt (Nakalema Zaituni) and the grandchildren including me and the plaintiffs where our grandmother relinquished all her interest in the suit land and surrendered the same to her grandchildren and I was appointed as a representative to hold the suit land in trust for the benefit of other grandchildren. - 20. Upon the appointment, our grandmother Nuluyati Tegwa signed transfer instruments in my favour and surrendered the duplicate certificate of title to me, I transferred the title into my names. On 4/4/2004 our grandmother passed on and was buried on the suit

land. In 2010, my late father fraudulently sold a portion of suit land to the 2nd defendant Mr. Ssekamatte John Bosco yet the same was not for sale as it did not belong to Ssemukutu Abdul.

- 21. Upon realizing this anomaly, Ssekamate took Ssemukutu to police where they made statements marred with falsehoods that the suit land belonged to Ssemukutu but decided to register it in his son's name Kasagga Abdul. I was arrested for stealing my father's land. I called the family members and informed them who resolved that for good family relation we mutate off the portion Ssemukutu had sold to Ssekamate and caution him against any further dealings. - 22. That I was shocked that Ssekamate John Bosco again entered into another transaction with Ssemukutu in respect of the suit land yet he was aware of the family dispute surrounding the same land and thus second transaction was fraudulent. Ssemukutu took advantage of being left alone at my home took the certificate of title and delivered it to Ssekamatte who approached me on several occasions demanding for transfer instruments. - 23. On 4/08/2018, I approached the Namuseera Area LC1 Chairman and informed him that Ssekamate John Bosco is in

possession of the certificate of title which does not belong to him and wanted him to surrender it back to me. I have never sold any piece of land to Ssekamatte John Bosco.

- 24. DW2 Ssekamatte John Bosco stated that on 8th April 2008 he purchased a plot of land measuring 150ft by 80ft on land comprised in Busiro Block 268 Plot 111 & 112 at Namuseera from the late Ssemukutu Abdul and at the time the land was still registered in the names of Nuliat Tegwa who before her demise in 2003 had given the land to her son Ssemukutu Abdul. - 25. That before a transfer could be effected into my names in June 2008, the 1st defendant fraudulently transferred the title into his names, sold the land to a one Byekwaso Galasiyani and Gaude Nakyanzi to who he transferred the title to. That I reported the 1st defendant to Land Fraud Protection Unit where he was arrested and he got the transfer of the said Byekwaso and Nakyanzi cancelled and duly effected the transfer into my names. On 15th Jan 2015, I bought another plot of land on the land comprised in Busiro Block 268 Plot 473 measuring 50ft by 160ft from the late Ssemukutu Abdul who is the father of the 1st defendant gave me the original certificate of title for safe keeping and instructed the

1st defendant to effect the transfer of the portion I bought into my names.

- 26. That upon the demise of the 1st defendant's father in 2018, I wrote a letter to the family informing them that I had the original certificate of title but still require the 1st defendant to effect transfer into my names who adamantly refused despite repeated reminders. That the plaintiffs have filed this suit against me in cahoots with the 1st defendant as a ploy to evict me from the suit land which I legally bought from the late Ssemukutu Abdu. - 27. DW3 Ssempijja Francis, the current Chairman of Namuseera. That at the time of the suit land was sold to the 2nd defendant, I was youth Councillor of Namuseera Cell and I witnessed the sale of the suit land to the 2nd defendant by the late Ssemukutu Abdu who was the owner having acquired it from his late mother Nuliat Tegwa. That the late Ssemukutu had sold different portions of it to several other people on the land and they are all in possession of the land i.e. Nalweyiso Mutyaba, Nansubuga, Nalongo & Aluteru. - 28. That at the time the late Ssemukutu Abdu died he had not yet signed transfer forms for the suit land to the 2nd defendant to

enable him demarcate off his plot which he bought in 2015 from Ssemukutu Abdu.

- 29. DW4 Sonko Joseph, stated that he was former LC1 Chairperson of Namuseera Cell. On 15th day of January, 2015, the 2nd defendant bought part of the land comprised in Busiro Block 268 Plot 473 measuring 50ft by 160ft from the late Ssemukutu Abdu the father of the 1st defendant and I was a witness to it. That before the said sale took place on 05/04/2008 the 2nd defendant first bought land comprised in Busiro Block 268 Plot 111 at Namuseera from Ssemukutu Abdu when the title was still in the names of Nuliat Tegwa. - 30. That before the late Ssemukuutu Abdu could effect a transfer of the land into his names and subsequently the 2nd defendant, the 1st defendant fraudulently transferred the title into his names, sold the same land to a one Byekwaso and Nakyanzi upon which he was arrested and he eventually effected a transfer of the land to the 2nd defendant who went ahead and got title into his names. That the late Ssemukutu Abdu did not only sell plots of land to the 2nd Defendant alone but he also sold to other people.

- 31. That as for the second plot that the late Ssemukutu Abdu sold to the 2nd defendant which is the subject of the suit, Ssemukutu Abdu died before completing its transfer to the 2nd defendant. The 2nd defendant acted honestly in all his dealings with Ssemukutu Abdu to the extent that in all his dealings, he involved the widow and upon the death of Ssemukutu Abdu he wrote to the family informing them of the fact that he had the title. - 32. DW5 Nansereko Amina, a widow to late Ssemukutu Abdu stated that at the family meeting that is alleged to have taken place in 2003 in the presence of the late Nuliat Tegwa if is only the 1st defendant who attended it as a child of Ssemukutu Abdu and not even Ssemukutu attended. That my late husband was the owner of the suit land having got it from his late mother Nuliat Tegwa and the same is currently registered in the names of the 1st defendant. - 33. That the 1st defendant transferred the land into his names without my late husband's knowledge and consent yet the suit land was owned by my late husband. My late Husband gave the original certificate of title to the 2nd defendant for safe keeping and instructed him to effect the transfer of the portion bought by the

2nd defendant into the 2nd defendant's names but the 1st defendant refused to do so to date.

## **Locus Proceedings**

34. On 31st/1/2025, Court visited Locus at Namuseera in Wakiso district. Court established that the suit land measures 60ft by 160ft, it is fenced off and the 2nd defendant is in possession and has a banana plantation thereon. The land also comprises of burial grounds. The LC1 chairperson informed Court that Ssemukutu had sold to Ssekamate and handed him the certificate of title. At the time of purchase, Nuriat Tegwa had died and there was a complaint by the 1st defendant.

## *Representation;*

35. At the hearing, the plaintiffs were represented by M/S Bbaale & partners Advocates & legal consultants whereas the 1st defendant was represented by M/S Eric-Kiingi & Co Advocates. Parties filed written submissions which I have considered in the determination of this matter.

## *Issues for determination*

The parties filed a joint scheduling memorandum and raised the following issues for resolution by this Court;

- *i) Whether the suit land belongs to the grand children of the late Nuliat Tegwa or the estate of the late Ssemukutu Abdul.* - *ii) Whether the purported sale of part of the suit land by Ssemukutu Abdul to the 2nd defendant was lawful.* - *iii) Whether the second defendant is a trespasser on the suit land?*

*iv)What remedies are available to the parties.*

## *Analysis and determination of the issues;*

*Issue 1; Whether the suit land belongs to the grand children of the late Nuliat Tegwa or the estate of the late Ssemukuutu Abdul?*

36. Counsel for the plaintiffs in his submission stated that the land was originally registered in the names of Nuliat Tegwa as per the certificate of title exhibited PEX 2 and relied on Section 59 Registration of Titles Act which provides that a certificate of title is conclusive evidence of ownership. That before her demise, the late Tegwa Nuliat donated the said land to all her grandchildren inclusive of the plaintiffs and the 1st defendant.

37. Counsel cited the case of **Joy Mukobe v Willy Wambavu HCCA**

**No. 55 of 2005** where court noted that the salient features of a gift intervivos are that the donor must intend to give a gift, the donor must deliver the property and the donee must accept the gift. That following the donation, the grand children had a meeting in which they all agreed to have the certificate of title registered in the names of the 1st defendant which was an indication that the late Nuliat intended to donate the said property to her grandchildren who accepted and received the same.

38. Counsel further relied on the case of **Norah Nassozi & Anor George William Kalule CA No. 05 of 2012** quoted Mellows in The law of succession, 5th Edition, Butterworth 1977 pages 9-10 which provides that "Various formalities are necessary for gift intervivos……… a gift of land where the title is registered at the land registry must be effected by an instrument of transfer which is registered. Further that Section 91(2) of the Registration of Titles Act as revised is to the effect that upon registration of the transfer the interest of the registered proprietor passes on to the transferee. That the 1st defendant conceded to holding the title in trust for the grandchildren of the late Nuliat Tegwa therefore, regardless of the

fact that it is registered in the 1st defendant's name it belongs to all the grandchildren of the late Nuliat Tegwa.

- 39. Counsel for the 1st defendant in return submitted that the 1st defendant led evidence to show that the suit land comprised in Busiro Block 268 Plot 473 was property of the late Nuliat Tegwa who gifted it to her grandchildren. The 1st defendant was nominated by the other family members to be registered proprietor and the nomination was duly honoured by Nuliat Tegwa who surrendered her owner's duplicate certificate of title together with all necessary instruments to the 1st defendant for his registration as proprietor. - 40. That whereas the 2nd defendant alludes to have purchased titled land from the late Ssemukutu, the late Ssemukutu did not or at all possess a title or the land to pass title or interest in the suit land as the same belongs to the grandchildren of the late Nuliat Tegwa but held in trust by the 1st defendant the registered proprietor thereof. - 41. Counsel for the 2nd defendant relied on the case of **Walusimbi Jennifer & 3 others v Bulezi Ali HCCS No. 291 of 2021** were Honourable Justice Mr. Tadeo Asiimwe stated that in the case of

The Registered Trustees of Kampala Archdiocese v Nabitete Naume mixed Co-operative Farm Limited HCCS No. 1559 of 2000 [2017] where it was held that a gift inter vivos is defined in Black law dictionary 8th edition at page 710 as "…….. a gift of personal property made during the donor's life time and delivered to the donee with the intention of irrevocably surrendering control over the property" Following the decision in Joy Mukobe v Willy Wambuwu HCCA No. 55 of 2005, the Court held that; *"…. For a gift intervivos to take irrevocable root, the donor must intend to give the gift, the donor must deliver the property; and the donee must accept the gift.*

- 42. Delivery of the gift must be actual or constructive made during the donor's lifetime in a manner that depicts that the donor stripped themselves of all dominion over the gift. - 43. That there were no minutes of the family meeting that allegedly took place on 5th April 2003. The second defendant first bought land from the late Ssemukuutu Abdu on 8th April 2008. The 1st defendant effected a transfer into his names on the title of the suit land in June 2008 and immediately transferred the land into the names of Galasiyani Byekwaso and Gaude Nankyanzi which is about the same time the late Ssemukutu Abdu had instructed him to effect transfer of the first land bought into the names of the 2nd defendant which transfer was later cancelled.

- 44. The 2nd defendant relied on DEX1 the sale agreement dated 8/4/2008 which was the first sale and DEX2 the sale agreement dated 15/01/2015 which was the second sale and DEX4 which was a letter dated 26/6/2015 written to the 1st defendant by the late Ssemukuutu Abdu wherein the latter instructed the 1st defendant to effect transfer of the suit land which had been sold to the widow of Bogere who gave evidence in this Court as Nakajiri Juliet. - 45. That there is no documentary evidence to prove that the late Nuliat Tegwa advanced the suit land to be registered in the 1st defendant's names as a trustee or even administrator to her estate.

## *Analysis by Court*

46. It's the plaintiff's contention that the late Nuliat Tegwa bequeathed the suit land to all her grandchildren including the plaintiffs and the 1st defendant. That a family meeting was held and the 1st defendant was nominated to have the suit land registered in his names as a trustee on behalf of the grandchildren

of the late Nuliat Tegwa. The plaintiffs' witness kept referring to the minutes from the said meeting however no minutes were adduced to that effect.

- 47. The 1st Defendant also stated in his witness statement that the suit land was bequeathed to the grand children of the late Nuliat Tegwa, the family appointed him to be registered onto the certificate of title in trust for the rest of the grandchildren which fact the 1st defendant confirmed during cross examination where he informed Court that he was only holding the land in trust for the grandchildren. - 48. The suit land was formerly registered in the names of the late Nuliat Tegwa and the same was subsequently registered in the names of Kasagga Abdul the 1st defendant. The late Nuliat bequeathed the said property whilst it was still registered in her names, she executed transfer forms and the property was eventually registered into the names of the 1st defendant to hold the same on behalf of the other grandchildren which legally amounts to a gift inter vivos. - 49. A gift inter vivos must satisfy the following conditions, the intention to give, delivery of the gift to the donee, acceptance of the

gift by the donee and once the above is fulfilled, the gift becomes irrevocable unless fraud, mistake or duress is proved.

- 50. Despite there not being direct evidence, the circumstances are consistent with a gift of land, gift intervivos. According to Mellows in the law of Succession 5th Edition, Butterworth 1997 pages 9 to 10 states that regarding gifts inter vivos, various formalities are necessary for gifts inter vivos, thus a gift of land must be by deed; a gift of land where the title is registered at the land registry must be effected by an instrument of transfer which is registered. - 51. It is now settled law that a gift inter vivos on registered land is completed when the donor signs the transfer forms in favour of the donee as elucidated in **Norah Nassozi & Anor v George William Kalule Civil Appeal No. 05 of 2012.** - *52.* Further that it is a known principle in equity that a gift is complete as soon as the donor has done everything that the donor has to do, that is to say, as soon as the donor has within his control done all those things necessary to enable him, the donee to complete his title. Thus, a gift of registered land becomes effective upon execution and delivery of the transfer. It cannot be recalled after that, even though the donee has not yet been

registered as proprietor. *(See; The Registered Trustees Anglican Church of Kenya Mbeere Diocese v The Rev. David Waweru Njoroge Civil Appeal No. 108 of 2002)*

- 53. From the facts established by circumstantial evidence of the parties' conduct, it can be inferred that the late Nuliat Tegwa had the capacity and intended to give the suit land to her grandchildren as a gift intervivos, she delivered the gift when she handed over the certificate of title and executed transfer forms thereby perfecting the gift. The requirements of a gift intervivos were fulfilled and the land became that of the grandchildren who elected to have the same registered in the names of the 1st defendant. - 54. The ultimate question is whether the suit land belongs to the grandchildren of the late Nuliat Tegwa or the estate of the late Ssemukutu Abdul and in this case Court shall ascertain the owner of the land by the intent and considering all the facts and circumstances surrounding the said land. - 55. According to the sale agreement dated 15th January 2015 between Ssemukutu Abdu and Ssekamatte John Bosco, it states *"Whereas the vendor is the owner of the above land comprised in*

*the above description which he transferred in the names of his son Ssemukutu Abdul (Intent Kassaga Abdu)"* … The land is registered in the names of Kassagga Abdul who was not party to the said transaction not even as a witness, be that as it may the vendor in the agreement does not show how he acquired interest in the said land if he indeed had any, he has never appeared on the certificate of title since it was transferred from Nuliat Tegwa to Kassaga Abdul.

56. From the above evidence, it is quite clear that the suit land belonged to the late Nuliat Teggwa who gifted it to her grandchildren who elected to have the same registered in the names of the 1st defendant. There was no evidence led before this Honourable Court as to how the late Ssemukuutu Abdul acquired any interest in the suit land and clearly, he had none as the same belongs to the grandchildren of the late Nuliat Teggwa.

## *Issue two; Whether the purported sale of part of the suit land by Ssemukuutu Abdul to the 2nd defendant was lawful?*

57. Counsel for the plaintiff contended that the 2nd defendant contends that he entered into an agreement for the purchase of land measuring 50ft by 60ft with a one Ssemukuutu Abdul out of

land comprised in Busiro Block 268 Plot 473. That Ssemukuutu Abdul held no interest whatsoever in the land comprised in Busiro Block 268 Plot 473 for him to be in position to dispose of part of it. That the 2nd defendant during cross examination stated that the certificate of title is in the names of Kasagga Abdul the 1st defendant but yet he proceeded to purchase the same from Ssemukuutu Abdul.

- 58. This clearly shows that the 2nd defendant failed to carry out necessary due diligence before entering into the sale agreements, a principle that has been on numerous occasions emphasized by this Honourable Court. Counsel relied on the case of Ojwang v Wilson Bagonza CACA No. 25 of 2002 where Court noted that for one to claim an interest inland, he/she must show that he/she acquired an interest from someone who previously had an interest or title thereon. - 59. That Ssemukuutu couldn't pass over good title over land he never owned. That the 2nd defendant would have demanded Ssemukuutu Abdu to produce the 1st defendant to witness their agreement to be sure that he was not being told lies by

Ssemukuutu Abdu which he never did and he did not engage with the Registered proprietor.

60. Counsel for the 2nd defendant in his submission's states that at the time of the said transactions the land was still registered in the names of the late Tegwa Nuliat who had passed away in 2003 but before her demise she had given the said land to her son the late Ssemukuutu Abdul. That the 1st defendant had nothing to show to prove that if it was indeed family land as alleged which is denied, he should have acquired consent from the family in writing to sell to Byekwaso Galasiyani and Gaude Nakyanzi. Thus, the sale of the suit land by Ssemukuutu to the 2nd defendant was lawful and not illegal.

## **Analysis by Court**.

61. At the time, the late Ssemukuutu Abdul purportedly transacted in the suit land, the same was at that time registered in the names of the late Nuliat Tegwa and subsequently into the names of the 1st defendant Kassagga Abdul to date. There has been no iota of evidence of the alleged transactions between Byekwaso Galasiyani, Gaude Nakyanzi and the 1st defendant neither do they appear on the title. As already noted, the late Ssemukuutu Abdul had no interest in the suit land to be able to pass on any to anybody including the 2nd defendant.

- 62. The principle is that "nemo dat quod non habet" meaning no one gives what they do not have. Simply put, that only a person who has better title can pass on an interest in land. The late Ssemukuutu could not purport to pass on an interest in land to which he clearly had no ownership rights. - 63. If indeed the late Nuliat Tegwa bequeathed the land to Ssemukuutu Abdul, why execute transfer forms in favour of the 1st defendant or why did the late Ssemukuutu allow the transfer of the land into the 1st defendant's name? there is no logical conclusion. - 64. Section 59 of the Registration of titles Act provides for a certificate of title being conclusive evidence of ownership. The 2nd defendant ought to have conducted due diligence and also finding out the circumstances under which the title came to be registered in the 1st defendant's name. He would have realized that Ssemukuutu held no valid interest in the land and that the 1st defendant held the same in trust for other grandchildren. Clearly the 2nd defendant undermined the need to conduct thorough due

diligence before purporting to transact with the late Ssemukuutu Abdul who had no interest in the land.

## 65. Court in the case of **Hajji Nasser Katende v Vithalidas Halidas & Co. Ltd CACA No. 84 of 2003** emphasized the value of land property and the need for thorough investigations before purchase, noted that lands are not vegetables that are brought from unknown sellers. That lands were valuable properties and buyers are expected to make thorough investigations not only of the land itself but of the sellers before making any purchase.

- 66. The 2nd defendant during cross examination admitted to not having conducted due diligence purporting to know the late Abdu Ssemukuutu personally and the suit land to be formerly owned by the late Nuliat Teggwa which is not enough. He further informed Court that the late Ssemukuutu Abdu had handed over to him the certificate of title to the land and hoped to obtain transfer forms in his favour from the 1st defendant as he was the registered proprietor thereof. - 67. The 1st defendant also informed Court that the certificate of title to the land was in his possession until the same was stolen from him by his late father, Ssemukuutu Abdul. That he reported the

matter to the Local authorities who didn't give him any help thus he wrote to the family informing them of the said incident.

68. Had the 2nd defendant conducted proper due diligence, he would have ascertained the true ownership of the suit land prior to transacting with the late Ssemukuutu Abdu who had no interest in the suit land thus could not have passed on any to the 2nd defendant rendering the transactions not only illegal but void ab initio. The 2nd defendant is illegally holding the certificate of title to the said land since he has no valid interest in the same. Therefore, this issue is resolved in the negative.

# *Issue 3; Whether the second defendant is a trespasser on the suit land?*

69. Counsel for the Plaintiffs relying on the authority of Justine E. M. N Lutaaya v Sterling civil engineering co. SCCA No. 11 of 2022 defined what amounts to trespass. He further submitted that the 2nd defendant alleged to have bought the suit land from a one Ssemukuutu Abdul yet the same was registered in the names of the 1st defendant who did not consent to any of the transactions neither did the grandchildren of the late Nuliat Tegwa.

- 70. Counsel for the 1st defendant submitted that the land comprised in Busiro Block 268 Plot 473 is registered in the names of the 1st defendant who holds the land in trust for the grandchildren of the late Nuliat Tegwa. That he never sold the land to the 2nd defendant but rather he purchased from someone who had no adequate ownership of the purported property, Ssemukuutu Abdul. That the 1st defendant did not consent to the sale of the property as the registered proprietor which renders the 2nd defendant a trespasser on the land. - 71. Counsel for the 2nd defendant on the other hand submitted that the 2nd defendant purchased the land from the late Ssemukuutu Abdul and did not just enter the land out of the blue. He first bought land from the late Ssemukuutu Abdu in 2008 and later in 2015. The person he purchased from is the father of the first defendant and he put a perimeter wall around the suit land and has been in possession of it, cultivated crops which was clearly seen while at locus visit. That the 2nd defendant holds the certificate of title to the suit land with authorization by the late Ssemukuutu from whom he purchased until the 1st defendant

effects transfer into his names as it was the wish of the late Ssemukuutu.

# *Analysis by Court.*

- 72. Court in **Justine E. M. N Lutaaya v Stirling Civil Engineering Civil Appeal No. 11 of 2002** stated that trespass to land occurs "when a person makes an authorized entry upon land, and thereby interfering, or portends to interfere with another person's possession of that land. - 73. In order to succeed in an action of trespass, the Court of Appeal **in Sheikh Muhammad Lubowa v Kitara Enterprises Ltd CA No 4 of 1987** observed that one must prove: - i) That the disputed land belonged to the plaintiff - ii) That the defendant had entered upon it, and - iii)That entry was unlawful in that it was made without permission or that the defendant had no claim or right or interest in the disputed land. - 74. As already noted, the late Nulait Tegwa bequeathed the suit land to her grandchildren including the plaintiffs and the 1st defendant. The family nominated the 1st defendant to have the property registered in his names to hold in trust for other

grandchildren. To perfect the said gift inter vivos, the late Nulait Tegwa executed transfer forms and the property was registered in the names of the 1st defendant to date. The 2nd Defendant purported to have purchased from the late Ssemukuutu Abdul who it has been established that he held no interest in the suit property and thus had none to pass on.

- 75. In the circumstances, it's quite clear that the suit land belongs to the grand children of the late Nuliat Tegwa who never sold nor consented to the sale to the 2nd defendant which makes his entry onto the suit land unlawful thus amounting to trespass. Trespass to land occurs where a party directly enters onto another person's land without permission and remains on the land or places or projects any objects on the land. - 76. The 2nd defendant states that he was in possession, he has banana plantations thereon and he erected a perimeter wall onto the suit land. Having found the 2nd defendant to hold no valid interest in the land, his entry was unlawful thus all developments thereon amount to trespass, it's safe to conclude that he is a trespasser onto the suit land.

# *Issue four;What remedies are available to the parties?*

# *General damages*

- 77. The law on general damages is that the damages are awarded at the discretion of the Court and they are a natural or probable consequence of the act complained of and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. **(Hadley v Baxendale (1894) 9 Exch 341)** - 78. Court in Coasta Construction services v National Water and Sewerage Corporation HCCS No. 429 of 2012 noted that general damages are those that the law presumes to arise from direct, natural or probable consequence of the act complained of by the victim. They follow the ordinary course and relate to all other terms of damages. - 79. The plaintiffs have led evidence to show the 2nd defendant's unauthorized entry onto the suit land, constructing a perimeter wall thereon and the refusal to hand over the duplicate certificate of title (owner's copy) to them as the lawfully entitled persons to the suit land. The plaintiffs prayed for general damages of Ug shs 50,000,000 for the loss and inconvenience that they have suffered for not utilizing their land for the past nine (9) years.

- 80. The 2nd defendant only occupies part of the land measuring 60ft by 160ft and not the whole land as entitled to the plaintiffs and the other grandchildren thus no justification for the Ug shs 50,000,000 as prayed for by the plaintiffs. This Court shall on that basis grant the plaintiffs Ug shs 10,000,000 as general damages to be paid by the 2nd defendant. - 81. For the foregoing reasons, I proceed to pronounce judgement and decree for the plaintiffs against the defendants' jointly and severally upon the terms that; - i) A declaration that the land comprised in Busiro Block 268 Plot 473 situate at Namuseera belongs to the grand children of the late Nuliat Tegwa and the 1st defendant only holds the same as a trustee. - ii) A declaration that the transactions between the late Ssemukuutu Abdul were void ab initio since he held no interest in the suit land and could not pass on any. - iii)A declaration that the 2nd defendant is a trespasser on the suit land and holds no valid interest thereon. - iv)An order directing the 2nd defendant to hand over the certificate of title to the suit land to the 1st defendant as the

registered proprietor thereof for safe keeping in trust for the grand children of the late Nuliat Tegwa.

- v) An eviction order against the 2nd defendant within three (3) months from the date of delivering this judgement. - vi) General damages of Uganda shillings ten million (Ug shs 10,000,000) to be paid by the 2nd defendant. - vii) Costs of the suit are awarded to the plaintiffs against the defendants jointly.

# **I SO ORDER**.

# **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

#### **6 th /05/2025**

**Delivered electronically via ECCMIS on the 6 th day of May 2025**