[2024] UGHCLD 246

# **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

# **CIVIL SUIT NO 978 OF 2019**

# **1. JAMES KIBOMBO**

**2. ANNITA KIGONGO ::::::::::::::::::::::::::::::::: PLAINTIFFS**

**(Administrators of the Estate of the**

**Late Stanley Kigere)**

## **VERSUS**

# **1. KIKOMEKO MUHAMAD**

**2. HAUMBA SAMSON MALWA :::::::::::::::::: DEFENDANTS**

# **BEFORE: HON LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

# *Introduction;*

- 1. James Kibombo and Annita Kigongo who are the administrators to the Estate of the late Stanley Kigere hereinafter referred to as the Plaintiffs instituted this suit against Kikomeko Muhammad and Haumba Samson Malwa hereinafter referred to as the Defendants for the following orders; - i) A Declaration that the defendants are trespassers on land comprised in Kyadondo Block 102 Plot 90 land at Jokolera.

- ii) A permanent injunction restraining the defendants, their agents and workmen from transferring, selling, developing, constructing, trespassing, evicting or in any way interrupting the plaintiffs' use and enjoyment of the suit land. - iii) Vacant possession - iv) General damages for trespass to land - v) Costs of the suit - 2. The Plaintiffs raised particulars of the trespass and stated that the plaintiffs are the registered proprietors of the suit land, they are in possession of the suit land as Administrators of the estate of the late Stanley Kigere, the Defendants entered upon the suit land fully aware that the land belongs to the estate of the late Stanley Kigere and the entry into the land was without the plaintiffs' consent/ permission.

#### **Defendants' Defence and Counter claim;**

3. The Defendants through their joint written statement of Defence denied each and every allegation laid out in the Plaint and stated that at the preliminary hearing of the plaintiff's suit, they shall raise a preliminary point of law

that the plaint does not disclose a cause of action against the defendants and it is time barred and shall pray for dismissal of the same with costs.

- 4. The Defendants also instituted a counter claim against the Plaintiffs for; - i) A Declaration that the Defendants/ counter claimants are the rightful and lawful owners of the suit land. - ii) An order of permanent injunction restraining the counter defendant, their employees, agents and assignees from further interfering in the portions of the suit land occupied by the counter claimants - iii) General damages - iv) Costs of the counter claim.

#### *Background;*

5. The Plaintiffs are the registered proprietors of the suit land comprised in Kyadondo Block 102 Plot 90 land at Jokolera hereinafter referred to as the suit land. The suit land belonged to their late father Kigere Stanley who died intestate and having acquired letters of Administration to his Estate, the Plaintiffs got registered on the suit land.

- 6. The Plaintiffs maintain a horticulture and clonal eucalyptus tree nursery and food crops on the suit land. - 7. That around February 27th, 2019, the 1st defendant entered the suit land without any color of right and destroyed some food crops and instead erected poles, started surveying and demarcating parcels of the suit land illegally claiming ownership of the unspecified size of the land. - 8. That the 1st Defendant also went ahead and destroyed the farm house and water tank on the land in addition to harassing the plaintiff's workers. - 9. The Defendants denied the plaintiffs' claims. They contend that around 1976, the late Ssalongo Kiiza Kakembo, the father of the 1st Defendant bought and took possession of approximately 6 acres of Kibanja land sitting on registered land comprised in Kyadondo Block 102 Plot 90 Land at Jokolera, Kasangati Town Council from the registered owner late Kezironi Mpinga. - 10. That Ssalongo Kiiza Kakembo planted Eucalyptus trees and also put a cattle farm on the said land. The late Ssalongo Kiiza Kakembo died around 2012 and before his

death, he had sold 2 acres of part of the Kibanja land he owned to a one Mazinga Zimula who paid fully and took possession of the same before his death and the balance of the said Kibanja land measuring approximately 4 acres has since the 1970s been occupied and utilized by the 1st defendant's family as children and beneficiaries of the late Ssalongo Kiiza Kakembo.

#### *Plaintiff's Evidence;*

- 11. At the hearing, the Plaintiffs produced three witnesses that is Rosemary Kibombo (PW1), James Kibombo (PW2) and Nabbuto Margaret (PW3) who all led evidence through witness statements that were adopted with their annextures which were marked as exhibits that is Letters of Administration to the estate of the Late Stanley Kigere (PEXH 1), the Certificate of Title for the suit land marked as (PEX2) among others. - 12. The Defendants produced five witnesses that is Kayondo Joshua (DW1), Tumusiime Thomas (DW2), Mazinga Zimula (DW3), Haumba Samson Malwa (DW4) and Kikomeko Muhammad (DW5) who were adopted together with their exhibits that is Certificate of Title of the Suit land

(DEXH1), The SALE Agreement dated 13th day of January, 2012 marked as (DEXH 2) and Agreement dated 10th February, 2015 admitted and marked as (DEXH 3) among others.

#### **Locus in quo visit**

- 13. On the 24th day of August, 2024, court carried out a locus in quo visit to the suit land in the presence of Counsel Musiitwa Paul and Counsel Marvin Heba for the plaintiffs with Erica Busingye holding brief for Counsel Irumba Robert for the Defendants. Plaintiffs and defendants were present. - 14. All witnesses were present apart from Tusiime Joshua who had died. - 15. Mrs Kibombo on the side of the Plaintiffs gave evidence and was cross examined on the same. - 16. LC1 also gave evidence and was cross examined on the same. - 17. On the side of the Defendants, 1st Defendant and 2nd Defendant gave evidence and were cross examined.

#### *Representation;*

18. At the hearing, the plaintiffs were represented by Counsel Musiitwa Paul, the Defendants were represented by Counsel Irumba Robert of M/S Tumusiime Irumba & Co. Advocates. Both counsel proceeded by way of written submissions which this court has considered in the determination of this suit.

## *Agreed issues for determination;*

- *i) Who is the rightful and lawful owner of the suit land?* - *ii) Whether the 1st and 2nd Defendants are trespassers on the suit land?* - *iii) What are the remedies available to the parties?*

#### *Resolution and determination of the issues;*

#### **Issue 1 and 2**

#### Plaintiffs' submissions

19. Counsel for the Plaintiff analyzed all evidence to come to his conclusion in which he stated that PW1 testified in paragraph 6 and 7 of her witness statement that she is a wife to the 1st Plaintiff and that her father-in-law, Stanley Kigere acquired the suit land comprised in Kyadondo

Block 102 Plot 90 land at Jokolera measuring 7.81 hectares in 1976 from his cousin the late Kezironi Kigere.

- 20. PW2 collaborated the testimony of PW1 when he testified in paragraph 7, 8 and 9 of his witness statement that the suit land comprised in Kyadondo Block 102, Plot 90 at Jokolera belonged to the late Stanley Kigere. He testified that this land was acquired by his father the late Stanley Kigere through a purchase from the late Kezironi Mpinga. The late Kezironi was PW2's uncle and a cousin to the late Stanley Kigere pw2's father. - 21. PW3 stated in paragraphs 7, and 8 of her witness statement that she lives on land comprised in Block 102, Plot 88 which land is neighboring the suit land. She testified that when she stated living on the said land, she found that her uncle the late Stanley Kigere had purchased the suit land and taken possession of the same. She further stated that the late Kigere even brought surveyors to survey the land for purposes of creating a certificate of title for it and PW3 used to cook food for the surveyors who would come to carry out the survey.

- 22. On the other hand, the 1st Defendant who testified as DW1 stated that he is a son of the late Kizza Kakembo and the late Kizza allegedly bought 6 acres of Kibanja seated on the suit land from the late Kezironi Mpinga. It is alleged that this purchase was in 1976. the 2nd Defendant DW3 testified that in 2015 he purchased 2 acres of the above six acres of Kibanja from one Mazinga Zimula (DW2) who had bought the same from the late Ssalongo Kizza Kakembo. - 23. DW2 testified that he purchased the two acres of Kibanja from the late Ssalongo Kizza Kakembo in 2012 which two acres he ended up selling to the 2nd Defendant. - 24. To prove ownership, the Plaintiffs adduced a certificate of Title to the suit land (PEX2). - 25. Counsel for the Plaintiff cited a decision by the court of Appeal in Jane Magango & 2 others v Wamala Kalibala William CACA No.11 of 2019 where it was held that;

"**The land Act does not define what a Kibanja is. Neither does the Constitution of Uganda, in spite of the historical and controversial position of this practice of holding land in Buganda. What is clear is that it is a formal system of holding land under Buganda**

**customary law. It is the position of the law that the rights of Bibanja holders are based on customary law in Buganda, and when it was applicable, the Busulu and Envujjo law. It must therefore be ascertained from the evidence on record whether the Applicants indeed acquired a Kibanja interest on the land in dispute."**

- 26. Counsel for the Plaintiffs further submitted that the evidence of the Defendants on how they acquired their respective bibanja interests on the suit land is marred in flaws and contradictions. - 27. That DW1 testified in paragraph 4 of his witness statement that his father the late Kizza Kakembo bought the 6 acres from the late Kezironi Mpinga, there however was no agreement brought before the court to support this claim. That it was further alleged by DW1 that the agreement got lost in the war. However, by 1976 when the late Kizza allegedly purchased the Kibanja, it was the evidence of DW1 in cross examination that he was merely 7 years old having admittedly been born in 1969. Therefore, at that time DW1 possibly could not have been in position to understand any Kibanja purchases that his father could have done at the time.

- 28. Counsel submitted that the lack of agreement of purchase of a Kibanja between the late Ssalongo Kiiza Kakembo and the late Kezironi Mpinga is problematic because this agreement would have been helpful in determining the true size and extent of the Kibanja that was purchased. It would have set out boundaries as well as demonstrated who is the landlord at the time. However, all that is left is speculation by the court. - 29. Counsel also submitted that none of the impugned bibanja transactions were made with the consent/ approval of the landlord at the time or his agents/ successors in title. - 30. It was counsel's submission that the Defendants cannot be held to have valid bibanja interests on the suit land because the genesis of the same interests is not legally supported. - 31. On the other hand, the Plaintiffs' father was the registered proprietor of the suit land from an entry made on title on the 12th January 1977. it is the same title that

is currently registered in the Plaintiffs names as Administrators to his estate.

## **Defendants' submissions**

- 32. Counsel submitted that in reference to who is the rightful owner of the suit land, he wishes to emphasize and bring it to this Honorable Court's attention that the Defendants in this matter and specifically the 1st Defendant have and possess a Kibanja interest in respect of the said land. - 33. Counsel submitted that a Kibanja Holder was defined in the case of **Ddamulira Abdu Vs Mss Xsabo Power Limited (Civil Suit No.049 of 2021)** which quoted with authority the case of **Prof Gordon Wavamunno Versus Sekyanzi Sempijja (CACA No.240 of 2013),** as a lawful occupant who occupied land by virtue of the repealed Bussulu and Envujjo law of 1928. That is further emphasized by section 29 (1) of the Land Act (as amended) which is to the effect that a lawful occupant is a person who entered the land with the consent of the registered owner, including a purchaser or a person who disclosed or compensated for

by the registered owner at the time of acquiring the leasehold certificate of title.

34. Counsel submitted that it was undisputed evidence of DW1 during trial of this case something that was also confirmed by the 1st defendant that in 1976, his father the late Ssalongo Kiiza Kakembo purchased six acres of Kibanja land sitting on land comprised in Kyadondo Block 102 Plot 90 land at Jokolera from the late Kezironi Mpinga, the former registered proprietor of the suit land. That following the purchase of the said land, the family of the late Ssalongo Kiiza Kakembo had peacefully occupied and been in usage of the said land up until the year of 2018 when the 1st Plaintiff threatened to evict them claiming ownership of the same.

## Counsel's analysis of evidence in respect of the Certificate of Title

35. The certificate of title adduced before this Honorable Court clearly indicates that the first registered proprietor of the suit land was a one Kezironi Mpinga registered onto the same in the year 1976.

- 36. That the said proprietor Kezironi Mpinga accordingly sold six acres of Kibanja land to the late Ssalongo Kizza Kakembo in 1976 the 1st defendant's father. - 37. That having sold the said Kibanja, the said Kezironi Mpinga thereafter sold to a one Stanley Kigere the father to the 1st Plaintiff who was accordingly registered on the certificate of Title in 1977 a year after the 1st Defendant's father had bought and taken possession of the same. - 38. That the Plaintiffs were accordingly registered as administrators of the estate of the late Kigere Stanley in the year 2019. - 39. Counsel therefore submitted that there is no evidence on record that by the time the father of the 1st Defendant, the late Ssalongo Kiiza Kakembo bought in 1976, that there never existed a certificate of title in respect of the said land. That the existence of the certificate of title at the time of purchase of the six acres of Kibanja in 1976 is a fact that was never proved during trial before this Honorable Court. - 40. That as a result, the late Ssalongo Kizza Kakembo acquired an equitable interest in respect of the suit

Kibanja land way before the father of the 1st Plaintiff had purchased the land and registered on title in 1977.

- 41. Counsel submitted that as much as DW1 was unable to provide documentary evidence of purchase of the Kibanja land by his late father due to the fact that the land agreement had been destroyed during the 1986 bush war, he ably identified and elaborated to this Honorable court that the suit land together with its boundaries had been purchased and acquired by his late father as well as the activities that were carried out on the said land during the locus visit to the suit land. - 42. That proof of ownership of the suit land by the late Ssalongo Kizza Kakembo was corroborated by DW4 a one Kayondo Joshua who testified during his re-examination that he had overtime since the year of 1976 seen the late Ssalongo Kizza Kakembo occupy and utilize the suit land as well as seen the boundary marks as had been erected by the late Ssalongo Kiiza Kakembo. - 43. Counsel submitted that the assertion by the Plaintiffs' counsel that the bibanja transactions were made without the consent/ approval of the land lord at the time or his

authorized agents/ successors in title is something that is highly misconceived and meant to mislead this Honorable court.

- 44. That the existence of a certificate of title at the time of purchase in1976 by the late Ssalongo Kiiza Kakembo is a fact that was never brought before the Honorable court. - 45. That the facts as adduced during trial are that the late Salongo Kiiza Kakembo purchased a Kibanja interest from the then owner, Kezironi Mpinga and accordingly acquired an equitable interest that supersedes the subsequent proprietors of the land. - 46. That accordingly, owing to the fact that the late Ssalongo Kiiza Kakembo possessed an equitable interest that he had acquired from the late Kezironi Mpinga way before the creation and registration of the father to the Plaintiffs in 1977 and subsequently the Plaintiffs in 2019, there was no need to acquire authority since as earlier mentioned, his interest superseded that of the Plaintiffs. - 47. That therefore the late Ssalongo Kiiza Kakembo was within his right to sell the two acres of land to DW2, Mazinga Zimula.

- 48. The Defendants counsel prayed that court finds that indeed the Defendants are rightful and awful owners of the suit land with valid equitable interests thereto. - 49. In rejoinder counsel for the Plaintiffs submitted that whereas the 1st Defendant pleaded that he is the rightful owner of the Kibanja he claims, it is not clear how he came to own the same. Whereas it is alleged that the same measuring four acres belonged to his late father, the evidence of his so-called inheritance of the Kibanja is marred with contradictions that cannot easily be explained away and go to the root of the evidence. - 50. That the 2nd Defendant intentionally did not seek the consent of the registered proprietor of the suit land at the time prior to purchase of the Kibanja on his land because he had heard that he was a tough man who was not willing to hear anything.

## *Analysis by court;*

51. In the case of **Owembabazi Enid v. Guarantee Trust Bank Limited, Civil Suit No. 63 of 2019**, Justice Stephen Mubiru defined a Kibanja as follows: "**A Kibanja is a form of land holding or tenancy that is subject to the**

**customs and traditions of the Baganda, characterized by user rights and ownership of developments on land in perpetuity, subject to payment of an annual rent (busuulu) and correct social behaviour, distinct and separate from ownership of the land on which the developments are made and in respect of which the user and occupancy rights exist.**"

- 52. Under the law, a Kibanja holder is a lawful occupant. A Kibanja holder must prove that he or she occupied Mailo land in accordance with the applicable law at the material time. - 53. The Plaintiffs' uncontested evidence is that they are the registered proprietors of the suit land. This is supported with a certificate of title to the suit land PEXH2 which was presented to this court and admitted. - 54. Section 59 of the Registration of Titles Act provides that Certificate to be conclusive evidence of title of ownership of land. - 55. In the case **of Kasifa Namusisi And Others V Francis M. K Ntabaazi S. C. C. A No. 4 Of 2004** Odoki CJ held that;

- 56. **"The cardinal principle of registration of title is that a certificate of title is conclusive evidence of title. it is also well settled that a certificate of title is only indefeasible in a few instances which are listed in section 176 of the Registration of Titles Act. The section protects a registered proprietor against ejectment except in cases of fraud, among others".** - 57. The Defendant's argument is basically that the father to the 1st Defendant bought and took possession of approximately 6 acres of Kibanja land sitting on registered land comprised in Kyadondo Block 102 Plot 90 land at Jokolera Kasangati Town Council from the then registered owner late Kezironi Mpinga. - 58. The 1st Defendant however did not adduce any evidence of the agreement on which his father bought the alleged Kibanja as he stated that the agreement got destroyed in a fire. - 59. Furthermore, the Defendant's argument is that the 1st Defendants father, the late Ssalongo Kiiza Kakembo possessed an equitable interest that he had acquired from the late Kezironi Mpinga way before the creation and

registration of the father to the Plaintiffs in 1977 (the late Stanley Kigere) and subsequently the Plaintiffs in 2019, his interest superseded that of the Plaintiffs.

- 60. In my understanding, the Defendant's claim is that the equitable interest of the Late Ssalongo Kiiza Kakembo supersedes the registered interest of the late Stanley Kigere and the Plaintiffs respectively. - 61. It should be noted that according to DW1's evidence, he stated in his witness statement that in early 2000s Sssalongo Kiiza Kakembo before his death had informed him that he bought and took possession of a Kibanja from the then registered owner late Kezironi Mpinga. - 62. Kezironi then sold his registered interest to the late Stanley Kigere the father to the Plaintiffs. Without proof of how the 1st Defendant acquired the Kibanja interest on the suit land, I cannot conclude that the 1st Defendant's father had a Kibanja interest on the suit land. No evidence whatsoever of any kind, agreement or proof of payment for the Kibanja was adduced before this Honorable court. It should be noted that court doesn't work on assumptions but rather evidence laid before it. - 63. Therefore, the 1st Defendant did not inherit any Kibanja interest that was never created in the first place. The 2nd Defendant alleges to have bought/ acquired his Kibanja interest from a one Mazinga Zimula who had bought the same from the late Ssalongo Kiiza Kakembo in 2012. - 64. First and foremost, having resolved that the late Ssalongo Kizza Kakembo did not acquire any Kibanja interest on the suit land, the 2nd defendant cannot claim to have acquired an interest which did not exist in the first place. - 65. Secondly, **Section 91(2) of the Registration of Titles Act** operates to pass all such rights, powers and privileges belonging to the transferor (Kezironi Mpinga) to the transferee (the plaintiffs). - 66. The suit land having been transferred to the late Stanley as the registered proprietor, all rights powers and privileges accrued to him. What was necessary in this case is the consent of the new land lord. It did not matter whether the late Ssalongo had a Kibanja interest on the suit land before the Late Stanley Kigere got registered on the suit land.

- 67. The Plaintiffs as the registered proprietors of the suit land are the new land lords to the suit land. Section 34 (9) of the Land Act as amended provides that; "No transaction to which this section applies shall be valid to pass any interest in land if it is taken without consent." - 68. In 2012, the late Ssalongo Kiiza Kakembo sold 2 acres of his purported Kibanja to a one Mazinga Zimula. - 69. The 2nd Defendant bought a Kibanja on the suit land from a one Mazinga Zimula who had acquired his Kibanja from Ssalongo Kiiza Kakembo. - 70. This acquisition is also not supported by any evidence showing consent from the landlord to carry out any sale transactions on the suit land. **Section 35(9) of the Land Act** provides thereof that No transaction to which this section applies shall be valid and effective to pass any interest in land if it is undertaken without consent as provided for in this section. The sale of a Kibanja without the consent of the registered owner of the land is null and void. This is the effect of the holding by the Court of Appeal of Uganda in the case of **Jennifer Nsubuga v. Michael**

## **Mukundane & Another, Court of Appeal Civil Appeal No. 208 of 2018.**

- 71. The 2nd Defendant did not prove to this court that he obtained consent of the Registered Proprietors to settle on the suit land as a Kibanja holder. - 72. The 2nd defendant having bought his interests without the consent of the landlord contrary to **section 34(1**) **of the Land Act**, the plaintiffs were not bound by his interests as a Kibanja holder since no interest had vested in him at law. - 73. Furthermore, a person does not acquire interest as a Kibanja holder merely because he or she has been referred to as such in isolation of the provisions of the law. One is not clothed with a Kibanja interest merely because he's referred to as such by the public or a section of the public in absence of proof of essential facts that would constitute creation of the Kibanja interest. *(See; Owembabazi Enid v Guaranty Trust Bank Limited and Others Civil Suit N0. 0063 of 2019).* - 74. In **Tifu Lukwago v Samwiri Mudde Kizza and Another, SC Civil Appeal No. 13 of 1996,** the procedure for

obtaining consent from the landlord was stated as follows: "Whenever, a Kibanja is sold, the seller introduces the buyer to the owner of the Mailo land on which the Kibanja is.

- 75. If the owner has an agent who looks after that land the buyer is introduced to that agent who in turn introduces him to the owner. In either case, the buyer upon so being introduced gives to the Mailo land owner or to the agent as the case may be, a gift called a kanzu, Thereupon the buyer is recognized by the owner as the new Kibanja holder." - 76. The 2nd Defendant did not show this court any evidence of having acquired consent from the registered proprietors of the suit land to occupy the suit land as Kibanja holder. - 77. The 2nd Defendant without proof of obtaining consent or paying ground rent, he is barred from claiming a Kibanja interest on the suit land. The failure by the defendants to prove that they purchased a Kibanja with the consent of the registered owner of the land, means they he did not lawfully acquire the disputed Kibanja on the land.

- 78. In this case, no valid interest was passed to the 2nd Defendant. - 79. Therefore, it is to the findings of this court that the Plaintiffs are the lawful owners of the suit land.

Whether the 1st and 2nd Defendants are trespassers o the suit land?

## Plaintiff's submissions

80. Counsel for the Plaintiffs cited the case of **Justine E. M. N Lutaaya Versus Stirling Civil Engineering Company Limited SCCA No.11 of 2002** at pages 6 to 7 of the judgement held that; "Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass."

81. In **Aluma Micheal Bayo & 2 others v Saidi Nasur Okuti HCCA No.23 of 2013 at pages 10 to 11** of the

judgement the court held that; **"Whereas actions for recovery of land are premised on proof of a better title than that of the person from whom the land is sought to be recovered (see** *Ocean Estates Ltd v. Pinder [1969] 2 AC 19***), actions for the tort of trespass to land only require proof of possession of the land in dispute at the time of the intrusion complained of. A person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world but the rightful owner".**

- **82.** Trespass to land occurs when a person directly enters upon land in possession of another without permission and remains upon the land, places or projects any object upon the land *(See; Salmond and Heuston on the Law of Torts***, 19th edition (London: Sweet & Maxwell, (1987) 46).** - 83. It is a possessory action where if remedies are to be awarded, the plaintiff must prove a possessory interest in the land. It is the right of the owner in possession to exclusive possession that is protected by an action for

trespass. Such possession should be actual and this requires the plaintiff to demonstrate his or her exclusive possession and control of the land. The entry by the defendant onto the plaintiff's land must be unauthorized.

- 84. The defendant should not have had any right to enter into plaintiff's land. In order to succeed, the plaintiff must prove that; he or she was in possession at the time of trespass; there was an unlawful or unauthorized entry by the defendant; and the entry occasioned damage to the plaintiff. - 85. The fact of possession for purposes of an action in trespass to land is proved by evidence establishing physical control over the land by way of sufficient steps taken to deny others from accessing the land. That possession constitutes nearly all of the legal claim to ownership is expressed in the adage "possession is nine points of the law," **explained in** *The Dictionary of English Law* **(1959) as follows;**

**… means that the person in possession can only be ousted by one whose title is better than his, every claimant must succeed by the strength of**

## **his own title and not by the weakness of his antagonist's.**

86. The conditions establishing possession were discussed in *Powell v. McFarlane (1977) 38 P&CR 452* as including;

**....both factual possession and the requisite intention to possess (***animus possidendi***)........ Factual possession signifies an appropriate degree of physical control....... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that noone else has done so whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalize with any**

## **precision as to what acts will or will not suffice to evidence factual possession.**

- **87.** Actual possession therefore is established by evidence showing sufficient control demonstrating both an intention to control and an intention to exclude others. - **88.** A possessor of land may not have actual physical possession, but where he or she has knowledge of its boundaries and has the ability to exercise control over them, he or she will be taken to have constructive possession of it**.** - 89. Where part of the land claimed is not under actual physical possession, there must be unequivocal evidence before court that the claimant deals with the cleared and un-cleared portions of the land, co-extensive with the boundaries, in the same way that a rightful owner would deal with it. Constructive possession of such land may be proved by evidence of enclosure and separation from adjoining land of the same character. - 90. Open, notorious, continuous, exclusive possession or occupation of any part thereof would in such circumstances constructively apply to all of it. In such

``` ```

cases, occupancy of a part may be construed as possession of the entire land where there is no actual adverse possession of the parts not actually occupied by the claimant.

- 91. Counsel therefore submitted that from the above authorities, the tort of trespass is an injury against a person in possession of the land. PW1 testified in paragraphs 7 and 8 of her witness statement that when the late Stanley Kigere acquired the land in 1976, he fenced off the same and successfully evicted squatters who were on the land through court process. - 92. In her cross examination she further stated that she and the 1st Plaintiff had been putting developments on the suit land from 2007 when they planted eucalyptus. When court visited locus, she was able to show the said trees including those she had planted in 2015 whose growth stunted due to spraying by chemicals. - 93. It was further submitted by counsel that the 1st Plaintiff as Beneficiary and Administrator of the estate of the late Stanley Kigere is entitled to possession and preservation of the estate property pending full distribution of the same.

- 94. Whereas DW3 the 2nd Defendant admitted that he was never truly in possession of the 2 acres he claims, when he bought the land, he constructed a house on the same. - 95. This house could be seen on the suit land in a run-down state when the court visited the suit land. Setting up the structure on land he had no proper legal claim was an act of self-explanatory trespass on the part of the 2nd Defendant.

## Defendant's submissions

- 96. Counsel submitted that the Defendants cannot be said to be trespassers on the suit land. Counsel cited the case of **Justine E. M. N Lutaaya Versus Stirling Civil Engineering Company Limited (Civil Appeal No.11 of 2002)** in which it was held that trespass to land occurs when a person makes unauthorized entry upon the land and thereby interferes with another person's lawful possession of the land. - 97. He further submitted that the defendants are lawful and rightful owners of the suit land. That they therefore possess lawful authority to occupy and utilize the said land and it is in fact the 1st Plaintiff and his agents that have

trespassed and interfered with the lawful possession of the said land by the Defendants.

- 98. He submitted that it was the evidence and testimony of DW1 as per paragraph 6 of his witness statement as well as during re-examination that the 1st Plaintiff destroyed the food crops and eucalyptus trees that were on the suit Kibanja by spraying them with chemicals. - 99. Counsel submitted that it is rather the 1st Plaintiff and his agents who through various acts trespassed onto the defendant's suit land and actually interfered with their lawful possession of the same. - 100. Counsel stated that it was the evidence of PW1 during cross examination that at the time of purchase of the land by the late Stanley Kigere in 1976, she together with her husband the 1st Plaintiff were staying in Nairobi and were not witnesses to anything that transpired during or after the purchase of the said land. That all the evidence as adduced by PW1 as well as PW2 during trial of this case is simply hearsay evidence and it is upon this basis that they pray that this court finds the same as such.

## **Analysis by court;**

- 101. Trespass to land was clearly stated in the case of Justine E. M. N. Lutaaya Vs Stirling Civil Engineering Company (supra) in which Mulenga JSC held: **"Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land."** - **102.** In the case of **F. D. K Zaabwe V Orient Bank & 5 Ors, HC Civil Suit No. 715 of 1999 [2002] UGHC 40, trespass was defined as the unlawful interference with one's property or rights.**

**Court of Appeal in Sheikh Muhammed Lubowa Vs 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 that it was made without permission or that the Defendant had no claim or right or interest in the disputed land. - 103. Having found that the Defendants do not have a valid Kibanja interest on the Plaintiffs' land, and having bought their interests without consent of the Plaintiffs, all their actions on the suit land amount to trespass.

## **Issue 3**

## What remedies are available to the parties?

104. The Defendants having failed to establish that they are the lawful owners of the suit land, as I have found that they do not have a valid Kibanja interest on the suit land, the Defendants counter claim therefore stands dismissed.

105. The Plaintiffs prayed for the following remedies;

- i) A declaration that the defendants are trespassers on land comprised in Kyadondo Block 102 Plot 90 land at Jokolera. - ii) A permanent injunction restraining the defendants, their agents and workmen from transferring, selling, developing, constructing, trespassing, evicting or in any

way interrupting the plaintiffs use and enjoyment of the suit land.

- iii) Vacant possession of land comprised in Kyadondo Block 102 Plot 90 land at Jokolera. - iv) General damages - v) Costs of the suit - vi) Having determined that the Defendants' Kibanja interests are invalid, I declare that the defendants are trespassers on the suit land comprised in Kyadondo Block 102 Plot 90 land at Jokolera. - 106. Furthermore, I hereby grant a permanent injunction restraining the defendants, their agents and workmen from transferring, selling, developing, constructing, trespassing, evicting or in any way interrupting the plaintiffs use and enjoyment of the suit land and vacant possession of the suit land.

## General Damages;

107. General damages are at the discretion of the court and are intended to place the injured party in the same position in monetary terms as he would have been had the act

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complained of not taken place. (**See; Phillip vs. Ward [1956] I AU ER 874)**

- 108. The Plaintiffs adduced pictorial evidence to prove that their farm house and water tank on the land was demolished by the Defendants. The 1st Plaintiff further testified that he was attacked with a Panga by the 1st Defendant. - 109. Therefore, general damages of Seven Million Uganda Shillings (7,000,000/=) are awarded to the Plaintiffs for the inconveniences caused. - 110. Costs for the suit follow the events. - 111. Judgment is hereby entered for the Plaintiff as follows; - i) The Defendants are ordered to vacate the Plaintiff`s land. - ii) A permanent injunction is hereby issued directing the Defendants and their agents from further acts of trespass on the Plaintiff's land. - iii) General Damages of Seven Million Uganda Shillings are hereby awarded to the Plaintiffs. - iv) Costs of the suit are awarded to the Plaintiffs.

**I SO ORDER.**


# **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

# **31st /10/2024**

#### **Delivered Electronically via ECCMIS on the 31 st day of**

**October, 2024.**