[2025] UGHC 568

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CIVIL SUIT NO. 103 OF 2016

| 5 | MBAZIRA JOSEPH | | | |----|---------------------------------------------|--------|------------| | | NAMUYANJA JOWERIA | | | | | <b>GODFREY KISEKKA</b> | | PLAINTIFFS | | | (Administrators of the estate of the late | | | | | Ssenyonga Joseph & George William Serwadda) | | | | 10 | | VERSUS | | | | 1. BUGOGO YOSAM | | | | | 2. MUSA NKERA | | | | | 3. KATUREEBE FRED | | | | | 4. PAUL LUTAKANGIZA | | | | 15 | 5. KWESIGA GEORGE | | | | | 6. PETERO RWAKIYONGA | | | | | 7. MARIAM KYOSHABIRE | | DEFENDANTS | | | 8. ERIA KAMWOGO | | | | | 9. NABIMANYA GRACE | | | | 20 | 10. MRS. BYAKATONDA MUKWANO | | | | | 11. RUTAGAGAGA JAMES | | | | | 12. KATAKUZA SOLOMON | | | | | 13. KATONO EZEKEL | | |

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK 25

#### Judgment

The plaintiffs claim against the defendants is for a declaration that they are the rightful owners of the land comprised in LRV 4232 Folio 18 Gomba Block 347 Plot 4 at Bugungu, an order of vacant possession and eviction of the defendants from the suit land, mesne profits, a permanent injunction, general damages and costs of the suit.

It is the plaintiffs' case that they are administrators of the estate of the late Ssenyonga Joseph and the late George William Sserwadda. That the plaintiffs are registered proprietors of land comprised in LRV 4232Folio 18 Gomba, Block 347 Plot 4 land at Bugungu. The plaintiffs claim that the 1^st, 2^nd and 12^th defendants without any colour of right in or about 2000 entered upon, trespassed and

alienated the plaintiffs' land comprised in Gomba Block 347 Plot 4 land at Bugungu claiming that the same is the defendants' land whereas not; the defendants' land is comprised in Block 44 Plots 6, 7, 8, 9, 10, 11, 12 and 13 land at Lwangiri Walire. 40

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That the 1%t and 27 defendants brought onto the suit land the 34 to 17t defendants without the authority and/or consent of the plaintiffs and amidst resistance from the plaintiffs. That the plaintiffs' parents owned the suit land and utilized the same till their demise or till about 1990. That the plaintiffs' parents used to operate a cattle farm on the suit land and the 12% defendant was one of their herdsmen. By an agreement dated 14% October, 1996, the plaintiffs rented the suit land to the 12 defendant who was using the land to graze his cattle. The 12 defendant in connivance with the 1st and 21d defendants alienated the suit land and brought thereon other defendants.

- 10 It is the defendant's case on the other hand that Paul Lutakangisa, Edward Kapapa, Anania Buniagira, Kosiya Lwewongo, Kezekiya Bitanuzire, Erifai Rukunamiriza, Ezekiel Mikweero and Yoweri Rutagonya also referred to as Lwangiri United Group applied for a lease on Plots 4 & 5 Block 44 formerly 39 land at Lwangiri estate on the 8" day of September, 1972 from the Uganda Land Commission. - 15 That the minister of Lands granted consent and on the 31 May, 1973, the consent for the ownership of land measuring approximately 1554 Hectares was communicated through a letter from the then Secretary Uganda Land Commission (Joseph Mubiru) giving Lwangiri United Group the land under minute 32/73(a)(107) of April 1973. - 20 Subsequently, Lwangiri United Group obtained an instruction to survey under instrument number M. 529 dated 24™ August, 1976, the group however did not immediately survey the land. Then the plaintiff's forefathers applied for a lease for land comprised in LRV 1080 Folio 6 Block 347, Plot 4 in Bugungu and it was granted on the 1st May, 1980 for 5 years which expired in 1985. - 25 In the meantime, the defendant's forefathers proceeded to act on their instructions to survey and conducted a survey which was completed in 1987 and a leasehold title was obtained for a period of 5 years with effect from 15t November, 1987. The defendants' forefathers then applied for a lease extension and an additional 49 years was granted due to expire in 2036. - 30 That the defendants are not in occupation of the suit land and are in occupation of their land since 1987 when they obtained the lease undisturbed until 2011 when the plaintiff filed the instant case. Thus, the defendants are occupying a different estate from that claimed by the plaintiffs and do not in any way overlap with the land claimed by the plaintiff. The defendants prayed for dismissal of the suit. - 35 It is was an agreed fact that the plaintiffs are registered proprietors of land comprised in LRV 4232 Folio 18 Gomba, Block 347 Plot 4 land at Bugungu and measuring approximately 777.340 hectares w.e.f 018 May, 1980 while th; /

defendants are registered proprietors of land comprised in LRV 3525 Folio 20, Plots 12 and 13 (curved out of Flot 5) and Plots 6, 7, 8,9, 10 and 11 (all curved out of Plot 4) all of Block 44 land at Lwangiri.

## . . . Representation:

Counsel Tumusiime Judith appeared for the plaintiffs while Counsel Bernard Aineamani appeared for the defendants. Both sides filed written submissions.

## Issues for determination:

The issues below are as raised by the parties in their scheduling memorandum. The defendants however sought to amend the issues in their submissions by subdividing the second issue. I am however inclined to go by the issues as were framed in the joint scheduling Memorandum and issue 2 as is covers whether the plaintiffs or the defendants acquired their respective certificates of titles lawfully. There is no need in my opinion to break down the issue to cover each side separately. The issues as adopted by this court are therefore as follows;

- 1. Whether the plaintiffs and the defendants' land is separate and distinct from each other? - 2. Whether the land is the property of the plaintiffs? - 3. Whether the plaintiffs are entitled to the remedies sought?

## Resolution of issues:

20 In civil matters the burden of proof lies on the plaintiff and the standard of proof is on a balance of probabilities. (See; Sections 101, 102 and 103 of the Evidence Act and the case of Nsubuga v. Kavuma [1978] H. C. B 307).

1t is trite that he or she who asserts must prove and burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. In Miller v. Minister of Pensions [1947] 2 ALLER 372, it was stated;

"That the degree is well setfled. It must carry a reasonable degree of probapility buf nof foo high as is required in criminal cases. If the evidence Is such that the tribunal can say, we think if more probable than nof, the burden of proof is discharged but if the probabilities are equal, if is nof..."

30 Issue 1: Whether the plaintiffs and the defendants' land is separate and distinct from each other?

It was submitted for the plaintiffs that it was the testimony of PW1 that his family owned the suit land comprised in Gmoba Block 347 Plot 4 at Bugungu since 1980 till 2000 when the land was grabbed and alienated by the defendants. That upon the death of Joseph Senyonga his father, they had continued to utilize the suit la%

for cattle farming until it was rented out to the 12 defendant on the 14™ day of October, 1996 who in connivance with the 15t and 214 defendants alienated the suit land. That PW4 the surveyor who opened the boundaries testified that suit land exists on the ground and is currently occupied by the defendants. That the defendants both in their written statement and joint scheduling Memorandum stated that their land is separate and distinct from the plaintiffs' land. That DW3 and DW4 departed from the pleadings by stating that there was an overlap on the two pieces of land and that the defendants obtained their title upon expiry of the plaintiffs' title. Counsel concluded that the plaintiffs and defendants' pieces of land each have separate certificates of title and a different description however it is not separate and distinct as alleged and there is no overlap.

Counsel for the defendants on the other hand submitted that the defendants are not occupying the plaintiffs land but rather they are occupying land comprised in LRV 3525 Folio 20 Plots 12 and 13 curved out of Plot 5 and Plots 6, 7, 8,9, 10 and

- 15 11 curved out of Plot 4 all of Block 44 land at Lwangiri. And this land is derived from their parents as per the evidence of DW1 Paul Rutakangisa. Counsel added that the confusion can be cleared through the evidence of DW2 who stated in his report that the defendants' plots 4 & 5 Block 44 is located at Lwangiri Village in Maddu Sub County, Gomba District. He further stated that the land claimed by the - 20 plaintiffs which is Plot 4 Block 347 sits on top of Plot 4 Block 44, Gomba which already existed on ground which was confirmed by DW4, that the two parcels of land crisscross the parishes of Bugungu and Lwagiri in such a manner that part of the title issued for Bugungu Sub county overlaps into Lwangiri thereby appearing to be on top of the title issued for the county of Lwangiri. That this piece of evidence went unchallenged. And DW3 stated that the two villages of Lwangiri and - 25 Bugungu are separate and distinct.

That from the above, it can be rightly concluded that the plaintiffs' land and the defendants' land is distinct in terms of description of Block and Plots numbers. However, on ground, while the defendants land is located entirely in the parish of Lwangiri, the plaintiffs' land sits partly on the parish of Bugungu and protrudes into the parish of Lwangiri.

I have carefully considered the pleadings, evidence, exhibits tendered in court, the submissions, the law and authorities cited therein by both parties.

In the instant case the defendants denied being in occupation of the plaintiffs' land and claim to be in occupation of a different estate different from the one claimed by the plaintiffs and do not in any way overlap with the land claimed by the plaintiffs. The defendants stated that they are not occupying or encroaching or claiming and have never subdivided, trespassed on the neighbouring disputed Iantc;%'

(LRV 4235 Folio 18, Gomba Block 347 Plot 4 land at Bugungu). That the defendants are not occupying LRV 4235 Folio 18, Gomba Block 347 Plot 4 land at Bugungu but rather LRV 3525 Folio 20, Plots 6, 7, 8, 9, 10, 11, 12 and 13 all curved out of Plots 4 and 5) Block 44 land at Lwangiri, a neighboring estate. .

- It was the evidence of PW3 Sserunjogi Joseph, the surveyor who carried out the joint survey upon being appointed by court that the suit land is Block 347 Plot 4 which is the land claimed by the plaintiff that he found in existence on ground and for which they are registered proprietors. Apparently, the suit land is being claimed by both parties and is currently occupied by the defendants. It was also an - 10 agreed fact that both parties claim to be registered proprietors of the same property.

DW3 another surveyor also told court that the suit land is the same plot being Bugungu Plot 347 which touches Block 44 Plot 4 which have the same deed plan.

15 1t is therefore my finding that the plaintiffs and defendants' claim is over the same piece of land and there is no distinct land owned by the plaintiffs and another bythe defendants. This issue is hereby resolved in the negative.

# Issue 2: whether the suit land is the property of the plaintiffs?

20 Counsel for the plaintiffs submitted that the parties in this case are all registered proprietors of the suit land and PW3 who carried out the survey confirmed that LRV 4235 Folio 18 Gomba Block 347 Plot 4 land at Bugungu and belongs to the plaintiffs. Counsel added that the priority of instruments is calculated from the date of registration and in the instant case the plaintiffs fore fathers obtained their certificate of title first in 1980 for LRV 1080 Folio 16 Gomba Block 347 Plot 4 Bugungu. While, the defendants' forefathers first obtained their Certificate of title in 1988.

Counsel noted that the testimony of DW4 had lies in it and that mistakes in an application for a lease are not a ground for cancellation of the title. That DW4 did not visit the suit land while DW?3 visited the suit land as the defendants' surveyor and informed court that the defendants occupy 2 square miles outside the suit land

30 and then overlap the entire suit land. That the plaintiffs land measures 777.340 hectares which is 3 square miles and the defendants' land measures 1554 hectares which is 5 square miles as such DW4's testimony that the plaintiffs land is far away from the suit land is a lie.

35 Further, it is not in dispute that the plaintiff's forefathers Joseph Ssenyonga and Serwadda George William were in occupation of the suit land and owned a cattle farm on the suit land as such the suit land is the plaintiff's. That the plaintiff's family has occupied the suit from 1980 and the defendants obtained thf%

certificates of title in 2006 and by the time the constitution was enacted the plaintiffs had occupied the suit land for 15 years and were deriving income from the same. Therefore, they are bona fide occupants of the suit land and the same was not available for leasing in 2006. (See: Kampala District Land Board & Chemical Distributors v. National Housing and Construction Corporation, SCCA

- No. 02 of 2004). That the defendants in the instant case derive their interest in land comprised in Gomba Block 39 Plots 4 and 5 land at Lwangiri which in 2000 was surrendered to the Mpigi District Land Board. As such the lease ceased to exist and in a bid to defraud; the defendants superimposed a certificate of title by cancelling Block 39 and writing Block 44 and the new certificate of title was drawn - 10 over the plaintiffs' certificate of title and that is the overlap as per the evidence of DW2.

15 Further, that if indeed it was true that Block 347 Plot 4 had been superimposed on a wrong ground then the certificate of title of Gomba Block 347 Plot 4 should have been cancelled and in its place Gomba Block 44 Plot 4 and 5 instated. Thus, the ceasing of existence of the former description would have been entered on both certificates of title and the cancellation of Gomba Block 347 Plot 4 should have been effected first before making Gomba Block 44 Plot 4 and 5 Lwangiri in the same space.

- 20 Furthermore, that in the instant case there is no instrument that was executed before the authorization of issuance of Gomba Block 44 Plots 4 and 5 Lwangiri yet there is an instrument and a memorial effecting a surrender of Gomba Block 39 Plots 4 and 5 Lwangiri. That it was impossible for Gomba Block 39 Plot 4 & 5 Lwangiri to become Gomba Block 44 Plots 4 & 5 Lwangiri without the approval of - 25 the district land board and failure of the defendants to seek the latter's consent and approval before the conversion means that the district land board can continue to allocate the land to another person leading to double titling.

Additionally, that the defendants' forefathers were existing on Gomba Block 39 Plots 4 & 5 Lwangiri measuring 2 square miles, the only way they could end up with 5 square miles was to spread into the plaintiffs' land which measures 3 square miles.

Counsel concluded that having titles does not cure the defendants' defects in title nor confer upon the defendants' validity which the titles do not have. That the defendants' titles are leasehold, they were obtained without an application for a lease, no lease offer, no minutes, the district land board has no known record of

these. As such the suit property is for the plaintiffs.

Counsel for the defendants on the other hand submitted that the plaintiffs despite presenting 4 witnesses none of them gave a proper trail or history of how they =/.

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obtained their certificate of title. That the plaintiff's title was granted to George William Sserwadda and Joseph Senyonga in 1980 which ran for 5 years and there is no record or evidence of extension or renewal of the said lease. That instead a fresh lease was issued in. 2011 with a retrospective start date and the LRV Number

changed from 1080 Folio 6 on the mother title to LRV 4232 Folio 18 on the new title. That according to DW4 when a lease is extended, the LRV No. does not change. That the new title does not indicate that there was any transfer and that the people on the title are not the ones that applied for the lease. As such the plaintiffs' title was obtained through fraud and their forefathers committed a forgery. Counsel concluded that the late George William Serwadda and Joseph

10 Senyonga had no title to pass onto the plaintiffs and if there was any then it was tainted with fraud.

Counsel for the defendants added that DW1 gave a coherent history of how the defendants obtained their title from the minister's consent up to the lease hold title for Block 39 Plots 4 & 5 (LRV 1634 Folio 6). That the said title has since been subdivided into more plots and that all the titles in respect of the defendants were said to be authentic which piece of evidence was not challenged by the plaintiffs. That in regard to the block numbers, it was a mistake made on the old deed plans and under Section 88(1) and (2) of the Land Act, the Registrar of Titles has power to make a rectification where a title is issued in error.

Counsel for the plaintiffs in rcjoinder submitted that the entrics on the plaintiffs' certificate of title reads as;

"Surrendered to the lessor Mpigi District Land Board from O1st August, 2000" under instrument No. 311225 registered on 31/8/2000. That it is therefore very clear that the plaintiffs' certificate of title is a transfer from their deceased parents and according to Section 118 (2) of the Registration of Titles Act that the lease renewal date runs from the date of the expiry of the lease of the plaintiffs' parents.

Counsel added that a lease extension is only granted when there is an existing lease or one that has just expired otherwise one that has long expired, it is a lease renewal and that is why the leasehold number changes as was the case in the instant matter.

Further, that the plaintiffs were in possession of the suit land and the defendants trespassed on the same when the 12% defendant was rented the land vide rental agreement marked PEX4. He connived with the 1¢t defendant to make titles in 2006 to defraud the plaintiffs. Additionally, that the plaintiffs conducted a search and

their land was still registered in the names of their forefathers and that indeed if after the expiry of the lease, the title was allocated to the defendants the searc%

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statement would have indicated so. Thus, the plaintiffs' certificate of title was lawfully obtained.

Counsel for the plaintiffs in rejoinder went on to submit that the defendants fore fathers lease was for Gomba Block 39 Plots 4 & 5 land at Lwangiri and the certificate of title was surrendered to the Mpigi District Land Board in 2000 hence $\mathsf{S}$ ceasing existence. There was therefore no application for an extension for an additional 49 years and a new lease was only obtained in 2006 which was created by merely cancelling 39 and writing 44 above it yet there was no application, no lease offer hence no application was ever made to the district.

Further, that the court visited locus and it was ascertained that the actual position 10 where the suit land is situated matches coordinates of Gomba Block 347 plot 4 and there was no rectification by the Registrar of titles and if there had been then there would have been an application for rectification, minutes of the rectification meeting, a memorandum and instrument effecting the rectification. Thus, the defendants only fraudulently cancelled the number 39 and wrote 44 above then 15 made titles to exist after fraudulently grabbing the plaintiffs' land.

I have carefully considered the evidence of both parties and submissions in this regard. It is my observation that the plaintiffs' forefathers being George William Serwadda and Joseph Senyonga first got registered on the certificate of title for land

at Bugungu Plot 4, Gomba 347, Volume 1080 Folio 6 on the 2/6/1980 as tenants 20 in common with equal shares. The same certificate of title as attached to the plaintiffs' trial bundle indicates that there was an extension of the lease under instrument no. 207115 for a period of 49 years from the initial period of 5 years that were granted effective 1^st May, 1980. The plaintiffs then got registered as administrators and Administratrix of the estates of George William Serwadda and 25 Joseph Senyonga on 29/6/2011 under instrument no. 450971.

While the defendants certificate of title for Plots 4 and 5 Block 39 Lwangiri estate Volume 1634 Folio 6 for their forefathers were registered on 28/1/1988 under instrument 233999 with effect from 1^st Nov. 1987 and extension was made under instrument No. 244809 for a period of 49 years from the initial 5 years. A surrender to the lessor Mpigi District Land Board with effect from 1^st August, 2000 was registered on the $31^st/8/2000$ . In 2000 an extension of the lease was applied and in 2002 subdivision of the plots was approved thus the land for the defendants was subdivided into Plots 6, 7, 8,9,10 and 11 formerly Plot 4 of Block 44 and plots 12 and 13 of formerly Plot 5.

The certificates as claimed by both parties indicate that there was an extension of the leases for 49 years on each title. I am therefore left wondering what informs DW4 that there was a forgery on the title for the plaintiffs and not on that for the

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defendants where similar entries were made on both titles. On both certificates of title the extensions were done effective the date of the grant of the first lease and not from effect of the date of expiration of the lease.

10 Secondly, the plaintiffs in their evidence stated that their titlé had never been cancelled or ceased existence because upon conducting searches from 2009 and 2024 it was found that the certificate of title was still in existence the plaintiffs were entered on the certificate of title as Administrators and Administratrix of the estates of the former owners. The plaintiffs certificate of title was subjected to verification and according to the letter addressed to the Deputy Registrar of this court dated 17/12/2024, the Registrar of Titles, Atusaasire Godwin wrote informing court that the original certificate of title of the plaintiffs for Plot 4 Block 347 at Bugungu Volume 4232 Folio 18 running for a period of 44 years confirming that it is authentic and the said certificate of title was issued by the office of the Commissioner Land Registration.

15 20 Following the evidence as adduced by PW3 and DW4 the suit land was said to be the plaintiffs' land and it is not in dispute that George William Serwadda and Joseph Senyonga the fore fathers of the plaintiffs were the first proprietors of the suit land in 1980. And the reason there was change in the volume and folio is because there was a lease renewal and not extension which would have maintained the same volume and folio. I am unable to impute fraud on either party in this case from the evidence as adduced for both parties which is why I am

25 inclined to go by the evidence as adduced by the surveyor who went on ground to determine the existence, location and description of the suit land. The documentation as presented before this court indicates shoddiness in how the titling was done as this can be evidence by the cancellation in the Block No. on the defendants' certificate of title from 39 to 44 apparently over a typographical error.

I would like to also note that the evidence of DW4 who never at any one point reached the suit land in my opinion was clothed with some falsehoods for instance he stated that the plaintiffs land is far from that of defendants which is untrue.

30 I therefore find that the suit land is property for the plaintiffs. This issue is resolved in the affirmative.

## Issue 3: Whether the plaintiffs are entitled to the remedies sought?

Counsel prayed that the remedies sought in the plaint be granted since the plaintiff has proved his case as against the defendants on a balance of probabilities. The plaintiffs particularly prayed for mesne profits, however, I am unable to grant these since they are not supported by any piece of evidence. '#

They also prayed for general damages however, did not state an amount they sought to be awarded. General damages in their nature are compensation for losses that the law naturally infers from the nature of the wrongful act, such as pain and suffering, loss of enjoyment of life, or inconvenience accessioned by the defendant to the plaintiff. The court has discretion in awarding general damages, considering the specific circumstances of the case to determine a reasonable sum of money. The principle of assessing damages aims to restore the plaintiff to the position they would have been in had the injury or damage not occurred

In the instant case the defendants are said to have started alienating the plaintiffs land in 2006 and that from that period the plaintiffs have been unable to utilize their land nor derive income from the same not to mention that they have been litigating over the same from 2011. In the circumstances I find that an award of UGX 50,000,000/ = in general damages is sufficient in this case at a 6% per annum court rate from the date of delivery of this judgment till payment in full. I therefore do award the same.

Counsel for the defendants on the other hand submitted that the plaintiffs' title was fraudulently obtained and prayed that the same be cancelled.

In the alternative, that if this court finds that the plaintiffs' title was obtained lawfully, then court should consider the equitable principle that "where there are two competing interests recognized by law then the first in time takes priority." (See: Balamu Bwetegaine Kiiza & Another v. Zephania Kadooba Kiiza, C. A. C. A No. 59 of 2009 which was cited with approval in the case of Mugyenyi & Another v. Mwesigye & Another, HCCA No. 004 of 2009).

25 That in the instant case the plaintiffs' title was issued on the 29% June, 2011 while defendants' mother title was issued on the 11t April 2006. That the plaintiffs' title came 5 years after the defendants' title. Thus, the defendants' title takes precedence and the plaintiffs' title ought to be cancelled to the extent of the portion of land claimed by the plaintiffs which overlaps onto the defendant's title as per the cadastral map marked "1" on DW4's report and this is on Plots 6, 11, 10 and part

30 of plot 7 of the defendant's land.

> Counsel for the plaintiffs in rejoinder submitted that what exists is more of trespass than an overlap. That the defendants grabbed the plaintiffs land and settled there entirely. Counsel prayed that they be evicted and the plaintiffs' certificate should not be cancelled since the plaintiffs' forefathers applied for a renewal and not an extension as was indicated and that is why the new title had to be issued when the letters of administration were presented for entry of the administrators and administratrix. %

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Having carefully considered the evidence as adduced before this court, I am inclined to go by the evidence as adduced by PW3 who was appointed by court to survey the suit land and it was found that the suit land as is on ground is that which falls on the plaintiffs' certificate of title and not on that of the defendants. However the defendants were in occupation of the plaintiffs land much as they stated otherwise in their pleadings.

I therefore find that the plaintiffs have proved their case as against the defendants on a balance of probabilities. I have carefully considered the evidence as adduced in court and facts at hand, judgment is hereby entered in favour of the plaintiffs in the following terms.

- 1. A declaration that the suit land comprised in LRV 4232 Folio 18 Gomba Block 347 Plot 4 at Bugungu, is the property of the plaintiffs. - 2. Anorder is hereby issued that the defendants' certificates of title to the extent that covers the plaintiffs land be cancelled. - 3. An order of eviction and vacant possession is hereby issued against the defendants. - 4. An award of UGX 50,000,000/= as general damages payable to the plaintiffs at a 6% per annum court rate from the date of delivery of this judgment till payment in full. - 5. Costs are awarded to the plaintiffs.

I so order.

Right of appeal explained.

25 OYUKO ANTHONY OJOK

JUDGE

13/03/2025

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