[2024] UGHC 1190

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CIVIL SUIT NO. 108 of 2028

| 5 BABIRYE AMINA KISITU | | |------------------------------|-------------------------------------------------------------| | | <table><tbody>(Administrator of the estate </tbody></table> | | of the late Alikisi Kapalaga | |

#### **VERSUS**

1. ADAM KAVIJMA $10$ <table>

2. NUMAN KAVUMA................................... **.....................................**

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## **IUDGMENT**

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#### Brief background:

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The Plaintiff filed this suit against the 1^st& 2^nd Defendants for; a declaration that she is the rightful owner of land comprised in Butambala Block 70 Plot 29, a $20$ declaration that the Defendants are trespassers on the suit land, an eviction order, demolition order, general damages, interest on the general damages, a permanent injunction and costs of the suit.

$25$ The Defendants on the other hand averred that they are the rightful owners of the suit property as such they cannot trespass on their own land but rather it is the plaintiff who wants to trespass on their land.

The Plaintiff applied to court and was granted with an order to open boundaries of her land wherein after opening the boundaries she discovered that the $30$ Defendants had encroached and or trespassed on her land hence this suit.

# Representation:

35 Counsel Tusiime Isaac appeared for the plaintiff while Counsel Nalubega Shamim appeared for the defendants. Both parties filed written submissions.

#### Issues:

- 1. Whether the Defendants are trespassers on the plaintiff's land? - 2. What remedies are available to the parties?

#### Resolution of issues:

# Issue 1: Whether the Defendants are trespassers on the plaintiff's land?

It was submitted for the Plaintiff that the suit land belongs to her and in that $\mathsf{S}$ regard she presented a certificate of title for the same which was admitted and marked as PEX1. The Plaintiff also stated that the Defendants entered her land without her consent which was evidenced by the survey report which was tendered in court and marked as PEX4 indicating the extent of the Defendants' trespass. The Plaintiff also presented Busuulu Receipts of the different tenants that $10$

she has on her land and all the receipts were marked as PEX5.

Counsel noted that the Defendants never disputed both in their evidence and defence that they are on the Plaintiff's land and referred to the Plaintiff as one of their landlords. Also when the Defendants were asked if they or their father have ever paid busuulu to the Plaintiff since they know the Plaintiff as the owner of the suit land and their landlord, the Defendants boldly said that they have never paid busuulu to the Plaintiff and their father also never paid the same because the Kibaja belongs to them.

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And, when Court visited locus, the Defendants when asked how old the structure that trespassed on the Plaintiff's land is they said it was 25 years and therefore it follows that the Defendants have been occupying the said Kibanja on the Plaintiff's land for 25 years during which period the Defendants have never considered paying busuulu to the Plaintiff as their landlord whilst in knowledge that they occupied a Kibanja on her land. And, in the cases of Kaggwa Nkambwe v. Wamala, Civil Suit No. 361 of 2017 & Sunday Allan Kakumilizi v. Nankya Lydia Civil Suit No. 715 of 2019, Court found that non-payment of busuulu by a tenant by occupancy (Kibanja holder) amounts to trespass.

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Counsel further submitted that the Defendants contended that they are legally in occupation of the Kibanja which formerly belonged to their late father Sheikh Kasooba. That it was the Defendants' evidence that the Plaintiff was involved in a land dispute with their father that was determined by Court. The question however is whether or not the Kibanja that the Defendants' father occupied which was subject of Mpigi Chief Magistrates Land Suit No. 12 of 2006 is the same in the instant case. Counsel noted that the Kibanja that was subject to the said suit in the Chief Magistrates Court of Mpigi was different from the Kibanja

now allegedly occupied by the Defendants. That in Land Civil Suit No. 12 of 2006, the Late Sheikh Kasooba sued the Plaintiff for trespass on a Kibanja that he acquired as a gift from the late Lukambagire.

$\mathsf{S}$ The late Kasooba as a Plaintiff never claimed that he is on both Lukambagire's land and that of the Plaintiff. That it is the Defendants' contention now in this suit that they occupy both Lukambagire's land and that of the Plaintiff and therefore they discovered they have two landlords. Therefore, it is apparent that the Defendants' father's claim against the Plaintiff in the former suit was different from the claim now before this Court. That in the instant case the Defendants $10$ testified that they discovered that they have two landlords following a survey they

Counsel concluded that the Defendants are on the suit land without the Plaintiff's consent and for the time of the said occupation they have not been paying $15$ busuulu as required under the law, as such Court should find that the Defendants are trespassers on the suit land.

conducted but they never presented to Court any survey report.

Counsel for the defendants on the other hand stated that the plaintiff failed to prove that the defendants are trespassers on her land. Counsel went on to submit $20$ that the defendants testified that they are beneficiaries of the estate of the late Sheikh Musa Kasooba and that their late father acquired the suit kibanja in the 1950s and they have lived on the same for over 70 years. That the plaintiff and their late father litigated over the suit kibanja and the same was decreed to the late Sheik Musa Kasooba. That it was upon opening boundaries of the plaintiff's $25$ land that she discovered that part of the suit kibania owned by the defendants falls onto her land. That she then sued them for trespass yet they had been in possession of the suit land for more than 70 years.

30 Further, that it was the plaintiff's testimony that when she was selling part of her land to Sunday Kaggimu, she was selling the access road between Sheikh Kasooba's plot and her land. The same was confirmed at locus and it was stated that the defendants had never gone beyond their kibanja as such the defendants are not trespassers on the plaintiff's land but rather bonafide occupants under

35 Section 29 of the Land Act and that the plaintiff at locus confirmed that she has never been in possession of the suit land.

Counsel concluded that the defendants just got to know that their kibanja falls on two titles that is, on the one of Lukambagire and that of the plaintiff. They added that they are ready to pay the plaintiff busuulu.

- Counsel for the defendants in rejoinder submitted that the defendants gave $\mathsf{S}$ evidence at the bar when it was submitted that they only discovered that they are on the Plaintiff's land upon the survey conducted by the Plaintiff. This was neither pleaded in their defence nor witness statements. However, that the Plaintiff applied to this court and obtained an order to open boundaries in 2018 - $10$ and opened boundaries in the same year.

In the defendant's defence they never stated that they occupy a Kibanja on the Plaintiff's land that they only denied the allegations of trespass claiming they occupy a Kibanja that was formerly occupied by their father. And, since 2018 to

date they are aware that they occupy a Kibanja on the Plaintiff's land but even $15$ then they have never made attempts to pay Busuulu to the Plaintiff as their landlord.

I have perused the evidence on record and carefully considered the submissions for the Plaintiff and the Defendants, the law applicable, the authorities cited to $20$ determine this issue as follows;

In civil matters like the instant case, the burden of proof rests on the plaintiff and the standard of proof is on a balance of probabilities.

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According to Section 101(1) and (2) of the Evidence Act it is provided that:

"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." $\mathcal{L}$

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 provides that:

"The burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side."

Section 103 of the same Act states:

"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 provided by any law that proof of that *fact shall lie on any particular person.*"

The claim by the plaintiff in the instant case is that the defendants have trespassed on her land. In the case of Justine E. M. N Lutaava v. Stirling Civil Engineering Ltd, Supreme Court Civil Appeal No. 11 of 2002, Court held that;

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

And, in the case of Sheik Muhammad Lubowa v. Kitara Enterprises Limited, $15$ Court of Appeal Civil Appeal No. 4 of 1987, the East African Court of Appeal noted that;

"In order to prove alleged trespass, it was incumbent upon the appellant to prove that the disputed land belonged to him, that the Respondent had entered $20$ upon that land and that the entry was unlawful in that it was made without his permission or that the respondent had no claim of right or interest in the land".

The defendants on the other hand denied being trespassers on the suit and $25$ claimed to be bonafide occupants on the suit land.

Section 29 (2) of the Land Act provides;

$30$ "Bonafide occupant means a person who before the coming into force of the *Constitution;*

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;

b) Had been settled on land by the Government of an agent of the Government which may include a local authority.

In the case of Kampala City Council & Another v. National Housing and Construction Corporation, SCCA No. 2 of 2004, it was held that; a bonafide occupant is one who not only occupied land but also utilized it for more than twelve years before the coming into force of the 1995 constitution.

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The defendants in this case told court that they had utilized the suit land as a family for over 70 years unchallenged. The plaintiff on the other hand told court that the trespass was discovered in 2018 upon a court order that allowed her to survey her land. It was then that the plaintiff became aware of the alleged trespass. The order stated as follows and I quote:

"By consent of both counsel, it is hereby ordered that;

a. The applicant does survey the land in order to ascertain the boundaries of the *tenants.* $15$

b. The occupation and stay of the tenants not to be interfered with. c. The rights of the applicant as a Registered proprietor are to be respected. d. Each party meet their own costs."

$20$ During the locus in quo visit court observed that the land that was litigated over by the plaintiff and the defendants' father in the Chief Magistrates court was a different portion of land from the subject matter in this case and that the plaintiff had since vacated it.

It was also observed that there were two old trees said to have been planted by $25$ the defendants and the suit kibanja had been partly vacant and used for grazing by the village people prior to the defendants starting to cultivate on the same. There was also a commercial structure thereon that was said to have been in existence for 25 years. The plaintiff did not confirm to court that she had ever utilized the suit land. It is the defendants that were found in occupation of the $30$ suit land. The defendants admitted as having never paid busuulu to the plaintiff.

In light of the above it is my finding that the defendants in the instant case are bonafide occupants of the suit kibanja as per the definition provided under Section 29 of the Land Act having occupied the same for a period of over 70 years as a family and eventually inherited it from their late father.

Whereas, the plaintiff's claim is in trespass, I am inclined to disagree because the defendants did not occupy the suit land unlawfully but rather claim their interest,

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through their father the late Sheikh Haji Musa Kasooba. Thus, the plaintiff's claim in trespass cannot stand since it does not meet the key elements of trespass to land which are;

- $\mathsf{S}$ - Unauthorized entry: where the defendant must have entered the land without permission from the person in lawful possession. This entry can be physical or through causing something else to enter the land such as water, animals or other agents. - Interference with possession: the entry must interfere or portend to interfere with the lawful possession of the land by the plaintiff. The plaintiff must be in actual or constructive possession of the land at the time of the trespass. - Lack of right: the entry must be made without the permission of the person in possession, and the defendant must have no valid legal claim or right to be on the land.

The plaintiff in this case only got to realize that the defendants had a kibanja on her land upon opening boundaries, prior to that she had no knowledge about this information and neither was her possession of the suit land interfered with by the defendants.

The defendants have intimated that they are willing to pay busuulu to the plaintiff as their landlord since it was discovered that their kibanja is on her land.

- In conclusion, the defendants have a kibanja which is the suit land on the $25$ plaintiff's land for which Busuulu ought to be paid. However, non-payment of busuulu in my opinion does not amount to trespass and as such the authorities cited for the plaintiff in that regard are found inapplicable since the set facts therein are distinguishable from the instant case. It was also not adduced in evidence that the defendants had deliberately declined to pay busuulu to the $30$ plaintiff well knowing that she was their land lord. Instead the plaintiff upon realizing that the defendants had a kibanja on her land she quickly run to court with a claim in trespass.

35 This issue is hereby resolved in the negative.

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#### Issue 2: remedies available

The plaintiff prayed for a number of remedies in her plaint while Counsel for the defendants on the other hand submitted that the plaintiff is not entitled to the prayers made in her plaint and relied on the case of Behange v. School Outfitters (U) Ltd [2000] E. A., where it was held that;

"There were no good reasons for the High Court to deprive the appellants of their costs as successful defendants."

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$15$

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$\mathsf{S}$

Counsel prayed that the instant case be dismissed with costs to the defendants.

I find that the plaintiff was unable to prove to this court on a balance of probabilities that the defendants had trespassed on her land in this case. And, given the set of facts before this court and for purposes of harmony and good tenant – landlord relations I will not make any orders as to costs. (See: Monica Ntarumbana Ibingira & 3 Others v. Muriel Baingana & 3 Others [1997] I KALR $41)$ .

- Judgment is hereby entered in the following terms; $20$ - a. The Plaintiff is the registered proprietor of land comprised in Butambala Block 70 Plot 29. - b. The defendants are bonafide occupants on the plaintiff's land. - c. The defendants are not trespassers on the suit land. - d. Each party bears their own costs.

I so order.

Right of appeal explained. 30