[2025] UGHCLD 50

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT N0. 264 OF 2017**

# **THEO BARBRA N. KITTO ::::::::::::::::::::::::::::::::::::: PLAINTIFF (Suing as Administrator of the Estate of the late Dr. John Chrysostom Kiyimba Kitto**

### **VERSUS**

### **ATHENA INVESTMENTS LIMITED ::::::::::::::::::::::: DEFENDANT**

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

### *Introduction;*

1. The plaintiff brings this suit against the defendant for trespass on Kibanja and developments located on land comprised in LRV 1992 Folio 20, Plot 900 Banda seeking orders interalia; a declaration that the defendant and/or its predecessor in title acquired a leasehold interest unlawfully, a permanent injunction restraining the defendant from trespassing on the said Kibanja, special and general damages for trespass.

### *Plaintiff's case;*

- 2. The plaintiff's case is that at all material times since 1940, The family of the late Dr, John Chrysostom Kiyimba Kitto owned a Kibanja interest on land comprised in LRV 1922 Folio 20, Plot 900 at Banda. That the suit land was part of a bigger portion which was reduced by the mailo registered proprietor, the late Pumula Kisosonkole with the consent of the late Dr. Chyrsostom Kiyimba Kitto thus retaining a smaller part now forming the suit Kibanja. - 3. The suit land is developed with permanent structures, a three blocks building, one block serving as the usual residence of the plaintiff's mother, two blocks consisting of rooms rented out to Kyambogo Students as hostels in the name of TBK Hostel and a shop attended by the plaintiff's mother. That some tine in 1990 without the knowledge of the plaintiff's family, a lease interest was created on the suit land in favour of a one Gagawala Nelson Wambuzi now LRV 1922 Folio 20. - 4. Upon finding out of the lease interest, the plaintiff with the consent of her late father requested to pay for the lease interest

but as she was mobilizing funds, Mr. Nelson G Wambuzi withdrew the offer and transferred the lease interest to his son a one Tigahalana Bolton Kayabya who in September 2013 wished to evict the plaintiff's family.

- 5. On 7/3/17, Tigahalana Bolton Kayabya transferred the lease interest to the defendant who on 10/3/2017 with armed private guards invaded the suit Kibanja and threatened the plaintiff's mother with verbal notices to vacate, claiming that the defendant was the owner, put padlocks on the front doors and the matter was reported to Banda police who intervened and the defendant's agents retreated and removed the padlocks. - 6. On 11/03/2017, the defendant's agents appeared before police accompanied by the defendant's lawyers who insisted that his client had to take vacant possession. On 14/03/2017 the defendant's agents/servants accompanied by several police officers including the O. C of Banda Police unlawfully stormed the suit Kibanja, broke the front, middle and behind doors, ceiling, removed the property inside throwing out the same tantamount to an eviction, damaging property in the process for which the plaintiff sought special damages of Ug shs 5,674,000/=.

- 7. It is the plaintiff's contention that the defendant's acquisition of the title to land comprised in LRV 1922 Folio 20 Plot 900 and the subsequent transfer in its names was unlawful, fraudulent and or negligent. - 8. The plaintiff pleaded the following particulars of fraud/illegality; - i) Failure to consult or liaise with the occupants to verify the nature of interest held by its purported vendors before purchase. - ii) Misstating the nature and status of developments of the suit land. - iii)Failing to verify with the neighbors or LC1 of the area about the true occupants/owner of the suit Kibanja/premises. - iv) Purporting to take vacant possession without notice and warning to the occupants. - v) Failure to adhere to the legal provisions where land is occupied by bonafide/lawful occupants.

## *Defendant's case;*

9. The Defendant in her defence denied all allegations and stated that she is a bonafide purchaser for value without notice of the land in dispute having bought the same from the registered owner. That the plaintiff is not a resident on the suit premises and when the defendant was buying the seller introduced her to the students and the old woman who confirmed that they were renting in the premises and promised to vacate.

- 10. The defendant also denied the fact that the plaintiff's initials are TBK but rather TBNK and TBK belongs to Tigahalana Bolton Kayabya the registered proprietor, seller and owner of the hostel. That the plaintiff's father's tenancy if any was terminated in 1990 when the lease hold title was issued by the Mailo owner to Nelson Wambuzi. - 11. That the registered owners on several occasions have borrowed and offered the title as security and neither the plaintiff nor her late father ever complained if they had an interest in the suit property. That the plaintiff has no cause of action against the defendant thus not entitled to the remedies sought in the plaint.

### **Plaintiffs' evidence**

12. On 7/3/2024, when the matter came up for hearing, the plaintiff's informed Court that the efforts to serve the defendant to have them participate in the proceedings had proven futile and the former lawyers had since informed them that they no longer had instructions to handle the defendant's case. Court ordered for substituted service which was done on 3/4/2024 but still the defendant did not enter appearance thus Court ordered for the matter to proceed exparte.

- 13. The plaintiff's case was opened on 2/10/2024 and the plaintiff led evidence of two witnesses by witness statements. - 14. PW1, Theo Barbra N. Kitto where she stated in her witness statement that the land was part of her late father, John Chrysoston Kiyimba Kitto's estate. The family has had a *Kibanja* (customary tenancy) interest on the land since the 1940s, paying dues to the landlord, the Kisosonkole family. A lease was created over the land in favor of Nelson Wambuzi, later transferred to his son, Tigahalana Bolton Kayabya, and eventually to Athena Investments Limited That the plaintiff and her family attempted to buy the lease interest, but the offer was withdrawn. - 15. The plaintiff operates a hostel known as TBK Hostel where in March 2017, the defendant with armed guards and police officers, attempted to evict Kitto's mother, placed padlocks on doors, and later broke into the property, including household goods and hostel equipment, were damaged or stolen. The defendant's agents

broke doors, removed property, and caused damage estimated at 5,674,500 UGX.

- 16. The plaintiff alleges that the defendant acted unlawfully and fraudulent by failing to consult the occupants before purchasing the land. That the acquisition was fraudulent and violated the plaintiff's rights as a bonafide occupant on the land and requested the court to declare the defendant a trespasser, cancel the certificate of title, and grant damages. - 17. PW2, Nabwette Lorita stated in her witness statement that she has lived on the disputed land in Banda, Kireka, for over 40 years. The land was part of the Kibanja owned by the late John Chrysoston Kiyimba Kitto under the Mailo interest of the Kisosonkole family. The Kibanja was reduced with mutual consent, and the remaining portion became the subject of the dispute. - 18. The land was developed with a house that had a front shop and a residential area behind it. The plaintiff also developed two residential blocks used as TBK Hostels. PW2 further stated that she occupied one of the rooms, ran a shop in the front, and acted as the caretaker of the hostel on behalf of the plaintiff.

19. That on the 14/3/2017, Several men, accompanied by police officers, including the Officer in Charge (O. C.) of Banda Police Post, forcefully entered the premises at around 7:00 PM. They broke doors, windows, and ceilings and threw out household and business items, causing significant damage including steel and wooden doors, a refrigerator, an electric fan, crates of soda, water boxes, a thermo flask, a charcoal stove, a shop counter, Cash losses included UGX 400,000 from the shop, UGX 2,470,000 in hostel rent, and UGX 800,000 in Yaka (electricity) collections and the total financial loss was UGX 5,674,000.

## *Locus Proceedings*

- 20. On the 27th of February 2025 court visited locus and made the following observations from the testimony of the plaintiff; - i) Plaintiff's kibanja is 100 X 50ft slightly more. - ii) From the main road to the end of the building on the suit land up to the shop area. - iii) The defendant demolished the door of the shop from the front side and behind. - iv) After the said demolition the defendant ran away and he has never appeared till date.

v) The plaintiff hasn't faced any disturbances from the defendant since then.

## *Representation;*

- 21. At the hearing, the plaintiff was represented by M/S Seguya & Co. Legal Consultants whereas there was no representation from the defendant. - 22. Counsel for the plaintiff filed written submissions which this court has considered in the determination of this matter

## *Issues for determination;*

- *i) Whether the acquisition of the lease interest in LRV 1922 Folio 20 Plot 900 and registration of the defendant as proprietor was unlawful and fraudulent.* - *ii) Whether the defendant's action on 14/3/2017 of evicting the plaintiff from the suit land amounted to trespass.* - *iii) Whether the plaintiff is entitled to the remedies prayed for.*

*Resolution and determination of the issues;*

*Issue 1;* **Whether the acquisition of the lease interest in LRV 1922 Folio 20 Plot 900 and registration of the defendant as proprietor was unlawful and fraudulent?**

- 23. Counsel for the plaintiff in his submission stated that the defendant unlawfully and fraudulently acquired a legal interest over land occupied by a bonafide /lawful occupant without complying with the provisions of the Land Act which provides for security of occupancy of the plaintiff's family as tenants by occupancy and he relied on the provisions of Section 31(1) and 36(3) of the Land Act which provide that a tenancy by occupancy on registered land shall enjoy security of occupancy on the land and that if the owner wishes to sell subject to this section, shall give the first option of buying that interest to the tenant in occupancy. - 24. It was the plaintiff's uncontroverted evidence that the family of the late Chyrsostom Kiyimba Kitto had been and are still in possession of a Kibanja since 1940 and have at all material times paid Busulu to the mailo registered owner the late Pumula Kisonsokole. - 25. That it was in 1990 that a lease interest was created on the suit land in favour of Gagawala Nelason Wambuzi comprised in LRV 1922 Folio 20 Plot 900 who transferred it to his son Tigahalana

Bolton Kayabya who eventually transferred it to the defendant, Athena investment limited.

- 26. Section 29 of the Land Act defines a bonafide occupant as a person who had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for a period of 12 years or more before the coming into force of the Constitution. The plaintiff in the instant case claims to hold a Kibanja interest in the suit land which they have occupied since 1940, pay busuulu and have enjoyed possession unchallenged by the registered proprietor or her agents until 1990 when a lease interest was created thereon and in 2017, the defendant started disturbing the plaintiff's quite possession of the suit land. - 27. In a bid to prove her interest in the land, the plaintiff adduced receipts marked as exhibits PEX3 and PEX4 for payment of premium and busulu to the Landlord, Kisosonkole and also the long stay on the land by the family of the late Chyrsostom Kitto Kiyimba since 1940. In addition to the evidence adduces in Court, the Locus visit indicated the long occupation of the plaintiff and more collaborative evidence were the defendant's failed attempts to evict the plaintiff and her mother from the suit land.

- 28. This court finds that the plaintiff qualifies as a lawful occupant within the meaning of Section 29 of the land act. - 29. The gist of this matter is whether there can exist two competing interests on the same land. It is the plaintiff's contention that in 1990, a lease interest was created in favour of Gagawala Nelson Wambuzi comprised in LRV 1922 Folio 20 Plot 900 who transferred it to his son Tigahalana Bolton Kayabya who eventually transferred the same to the defendant, Athena Investments limited. - 30. As earlier noted and according to section 3 (1)(h) of the Land Act, its suffice to say the holder of a Kibanja enjoys exclusive possession, usage and occupation of the land subject to the legal or Mailo interest held by the landlord therein. A lease interest on the other hand, is created by either contract or operation of law and the landlord or lessor grants or is deemed to have granted another person namely, the tenant or lessee exclusive possession of the land usually but not necessarily for a defined period. - 31. It's quite clear that both interests provide almost the same rights in the land but subject to the reversionary interest of the land Lord. The principle of **"Qui prior est temper"** which loosely

translates to **"he who is earlier in time is stronger in law".** The plaintiff's Kibanja interest and her family (that of the late Chyrsostom Kiyimba Kitto) predates the defendant's leasehold title and therefore creates an overriding interest. Be that as it may, a leasehold interest created out of private Mailo cannot override the rights of lawful and or bonafide occupants of land because it purports to deliver exclusive possession to a third party who is not in possession subjecting the bonafide occupant to two landlords.

- 32. The Plaintiff further contended that the said lease was created fraudulently, and among the particulars pleaded by the plaintiff was the failure to consult the occupants to verify the nature of the interest the purported vendors had in the land, misstating the nature and status of developments, failure to verify with the neighbors and the LC1 of the area about the true occupants/ owner of the Kibanja, purporting to take vacant possession without giving the occupants notice and the failure to adhere to the legal provisions where land is occupied by bonafide/lawful occupants. - 33. Fraud has been defined in the case of **Fredrick Zaabwe v Orient Bank Ltd & others SCCA No.4 of 2006** to mean "An

intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which is intended to deceive another so that he shall act upon to his legal injury."

- 34. It is quite evident that the creation of the lease hold interest was perpetuated to defeat the plaintiff's interest in the suit land. Whereas the defendant in her defence alleged to be a bonafide purchaser for value without notice, the same cannot suffice as the lease hold certificate of title was created by persons that where never in possession of the suit property. It is a well celebrated principle of law in **Yokobo Senkungu & 4 other v Cresensio Mukasa SCCA No. 17 of 2014,** that processing a certificate of title without possession constitutes fraud and it is illegal. - 35. The legal system for Mailo land ownership recognizes the existence of dual legal interests on the same piece of land - a title interest; and a lawful or bona fide occupant interest. A title interest is held by the registered owner of the land. Tenants on the land can either be lawful or bona fide occupants, depending on how their interest in the land was created. Both of these two interests in the same parcel of land are lawful. **(See Nakalyana Teopista &**

#### **4 others v Kaggwa Juma HCCS No. 2443 of 2015)**

36. Under those circumstances, it is not conceivable that another interest in form of a lease can be legally created by the Registered proprietor in favour of a third party other than the lawful or bonafide occupant who is in possession. Therefore, the defendant held no valid interest in the land as the purported lease and the certificate of title was void abnitio.

## *Issue two;* **Whether the defendant's action on 14/3/2017 of evicting the plaintiff from the suit land amounted to trespass.**

37. PW1 in her evidence stated that on the 10/3/2017 to 14/3/2017, the defendant's agents with armed private guards invaded the property broke and removed doors, damaged property and threw out the same in short, vandalized the plaintiff's property who in turn called police to save them from the eviction. Counsel for the plaintiff in his submissions stated that the Land Act guarantees security of tenure to a lawful/bonafide occupant and the events on 10th- 14th of March 2017 amounted to trespass.

38. Court in **Justine E. M. N Lutaaya v Stirling Civil Engineering**

**Civil Appeal No. 11 of 2002** 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.

- 39. 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. - 40. I shall proceed to qualify the above elements for conclusiveness; **That the disputed land belonged to the plaintiff and the defendant had entered upon it.** - 41. As already determined above by this Court, the plaintiff is a bonafide occupant on the suit land having occupied and developed the same since 1940 with the consent of the landlord. With regard to the defendant's entry onto the land, the plaintiff led evidence

through photographs marked and exhibited at PEX 9 (a-d) showing the damage occasioned onto the property by the defendant's agents and the said evidence was never challenged by the defendant not even in the written statement of defence thus this Court is inclined to believe that the defendant made an entry onto the suit land.

# **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.**

- 42. As to whether the entry was lawful, this Court has already noted that the defendant did not hold any valid interest in the land thus she had no right or legal basis to interfere with the plaintiff's quite possession and occupation of the land. - 43. That notwithstanding, the Land Act under Section 33 (1) protects a lawful or bonafide occupant from eviction and provides that the same can only be done with a court order on grounds of non-payment of the annual nominal ground rent. The defendant in the circumstances not being the plaintiff's landlord had no right to evict her from the land thus such acts as committed from 10th – 14th March 2017 amounted to trespass.

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

44. The plaintiff made the following prayers to Court; a declaration that the defendants and/or its predecessor in title acquired interest in the leasehold interest unlawfully, a permanent injunction restraining the defendant from trespassing on the said Kibanja, special and general damages for trespass.

#### *Damages*

45. Damages are a pecuniary recompense given by law to a person for the actionable wrong that another has done.

#### *General damages*

- *46.* 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. *(See; Hadley v Baxendale (1894) 9 Exch 341)* - 47. The decision in **Kampala District and Board & George Mitala vs Venansio Babweyana Civil Appeal No. 2 of 2007** is well

settled law on award of damages by a trial court. It is trite law that damages are the direct probable consequences of the act complained of.

48. The plaintiff has ably proved that there were damages and losses suffered as a result of the defendant's actions. Thus, the plaintiff is awarded Ug shs 5,000,000/= as general damages.

#### *Special damages*

*49.* It is trite law that special damaged must not only be specifically pleaded but they must also be strictly proved. *(See; Borham –*

### *Carter V Hyde Park Hotel [1948] 64 TLR)*

- 50. The plaintiff claims special damages from the damaged properties resulting from the defendant and her agents' unlawful acts of trespassing on the suit property. The plaintiff pleaded the amounts as below; - i) 2 steel doors, 2 wooden doors - ii) 1 refrigerator 600,000 - iii)Water collection 600,000 - iv) Electric fan 150,000 - v) 2 crates of soda 50,000 - vi) Yaka Collections 800,000

- vii) 4 boxes of water 96,000 - viii) Airtime 50,000 - ix)Cash 400,000 - x) Hostel payment 2,470,000 - xi)Thermo flask 28000 - xii) Charcoal stove 30,000 - xiii) A shop counter/board 400,000

#### **Total = 5,674,000/=**

- 51. The plaintiffs in proof of the above claim, adduced photographs illustrating the damage occasioned by the defendant and her agents and the said photographs were exhibited as PEX 9 (a-d). Iam satisfied that the plaintiff has proved the award of special damages thus this Court awards special damages of Ug shs 5,674,000/= as prayed for. - 52. For the foregoing reasons, I proceed to pronounce judgement and decree for the plaintiff against the defendants' jointly and severally upon the terms that; - i) A declaration that the defendant and her predecessor in title unlawfully and or illegally acquired a leasehold interest in the suit land.

- ii) An order for cancellation of the leasehold certificate of title comprised in LRV 1922 Folio 20 Plot 900 at Banda. - iii)A permanent injunction doth issue against the defendant and her agents restraining them from interfering with the plaintiff's possession and quite occupation of the suit land. - iv) General damages of Ug shs 5,000,000 at an interest rate of 10% from the day of judgement until payment in full. - v) Special damages of Ug shs 5,674,000/= - vi) Costs of the suit are awarded to the plaintiff against the defendant.

#### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

#### **28 th/03/2025**

### **Delivered electronically via ECCMIS on the 28th day of March 2025.**