[2024] UGHC 1183

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MPIGI

#### CIVIL SUIT NO. 30 OF 2018

# MUGISHA AMOS....................................

#### **VERSUS**

MUWANGA SEKAKA..................................

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

# Judgment

- The plaintiff brought this suit against the defendant on the 19^th day of February, 10 2018 for; a declaration that he is the registered proprietor of Plot 307 comprised in Block 112 land at Kyeitabya-Mawokota, Mpigi District; a declaration that the defendant is a trespasser to the suit land, a permanent injunction restraining the defendant, his agents, his assignees from trespassing and or interfering with the plaintiff's ownership and enjoyment of his land, damages and costs of the suit. 15 - It is the plaintiff's case that he is the lawful registered proprietor of the suit land comprised in Block 112 Plot 307 land at Kyeitabya-Mawokota, Mpigi District having been transferred the same from Lwandasa Samuel Sikitoleko on 21^st June, 2017. - The plaintiff on the 18^th day of January, 2012 purchased two acres of land from 20 Semu Lwanga, the land was not occupied and he took possession constructed thereon and planted seasonal crops, he was given an agreement. That there was a pending matter in court, upon judgment in HCCS No. 111 of 2013 at Nakawa, vide Lwandasa Samuel Sekitoleko v. Fredrick Semu Lwanga, Lwandasa Samuel was granted Letters of Administration. $25$

The plaintiff had to regularize his interest on the land and he further entered into a sale agreement with Lwandasa Samuel Sekitoleko where he purchased 3 acres covering the area in dispute dated 11^th day of February, 2017. That the plaintiff remained in possession of the suit property where he built a permanent home and occupied since 2018 when the defendant started trespassing thereon.

The defendant on the other hand in his written statement of defence stated that he had been in possession of the suit land since 2004 as a kibanja owner having bought the same from Muzeyi Mulawo and Namwandu Kintu and was cultivating, on the same since that is where he derives his sustenance from.

$1$ | Page

$\overline{5}$

## Representation:

Counsel Kamusiime Julian appeared for the plaintiff while Counsel Kirima Brian appeared for the defendant. Both parties filed written submissions.

### Issues:

- 1. Whether the defendant is a trespasser on the suit land? - 2. What remedies are available to the parties?

Order 15 Rule 2 of the Civil Procedure Rules provides; Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part of it may be disposed of on the issues of law only, it shall try those issues first,

$10$

$20$

$\mathsf{S}$

and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

Basing on the above provision, counsel for the plaintiff decided to raise an additional issue of "Who is the rightful owner of the suit land?

However, in my opinion the provision above only allows court to raise or reframe issues which it finds are necessary to dispose of the dispute at hand and not for the 15 parties to raise during their submissions since they had a chance to raise their issues during the joint scheduling memorandum in line with which evidence was adduced.

In the case of Mundua Richard v. Central Nile Transporters Association, Miscellaneous Civil Revision No. 0003 of 2017, it was held that:

"Framing of issues is necessitated that no party at trial is put to surprise. It guides the parties to the suit to adduce proper evidence during trial. In order to enable court make the right decision framing of appropriate issues is of crucial importance. Issues ordinarily arise when a material proposition of law or fact is *affirmed by one party and denied by the other".*

## Court further held;

"The issues on which the decision of the case shall depend, must be framed and recorded. The parties and their counsel are bound to assist the Court in the process of framing of issues. The duty of the counsel though does not belittle the primary

obligation cast on the Court. It is for the presiding magistrate to exert himself or 30 herself so as to frame sufficiently expressive issues. The object of an issue is to bring down the evidence, arguments and decision to a particular question so that there may be no doubt as to what the dispute is. Issues are framed for arriving at right decision of the case and to pin-point the real and substantial points of difference. The correct decision of the civil litigation largely depends upon the correct framing 35

# of issues. The court is not only competent but also under an obligation to frame the issues, as per its understanding of the controversy between the parties."

In the instant case the new issue was framed in counsel for the plaintiff's submissions and was not submitted on by the defendant. I however find that it will more or less be determined under issue 1 since trespass cannot be determined without ascertaining ownership. I hereby maintain the issues as were raised before and discussed by both parties as below.

Resolution of issues:

$\mathsf{S}$

Issue 1: Whether the defendant is a trespasser on the suit land?

- Counsel for the plaintiff submitted that it was the plaintiff's evidence that he has 10 been the registered proprietor of the suit land since 2017 and that this was corroborated by PW2 who also witnessed the dialogue where the resultant of which the defendant was paid UGX 10,000,000/ $=$ . That upon purchase in 2017 he was in occupation of the same until 2018 when the defendant started laying claims over the same and fenced it. That the plaintiff entered the suit land and has $15$ since established thereon a banana plantation and constructed a house. That the defendant's actions are in contravention of the provisions of Article 26 of the Constitution. - Counsel for the defendant on the other hand submitted that it was the defendant's evidence that he came and started possessing the suit land in 2004 after he 20 purchased the same and started cultivating thereon. That the plaintiff did not have possession or ownership of the suit land since he only had intention to build on the land that was on sale in 2018. Thus, the defendant could not have trespassed on the plaintiff's land since he had no ownership of the same. - Counsel added that the plaintiff's suit is barred by limitation since he occupied the 25 suit land in 2004 and the plaintiff filed this suit in 2018 after a period of 14 years from when the cause of action accrued.

Further, that the defendant has a valid claim in the suit land and is not a trespasser but rather a lawful occupant of the suit land who entered on the same with the consent of the registered proprietor and he also purchased. That the plaintiff in his

30 pleadings did not indicate that the defendant bought from him a piece of land and paid UGX 10,000,000/= for the same yet there was no sale agreement to support this argument in contravention of the provisions of Section 10 (5) of the Contracts Act which requires that any contract for which the subject matter exceeds UGX $500,000/$ = it must be put into writing. And that this is also a departure from the

35 plaintiff's pleadings contrary to Order 6 Rule 7 of the Civil Procedure Rules.

Counsel noted that the plaintiff's evidence points to major contradictions meant to mislead court.

In rejoinder it was submitted for the plaintiff that he purchased the suit land in 2010 and occupied the same undisturbed until 2018. That though the defendant

- claimed to have bought the suit land in 2004 he never provided any evidence to $\mathsf{S}$ support this claim as no purchase agreement was tendered in court. That failure to prove his interest in the suit land cannot verify his claim of being a lawful occupant and the UGX 10,000,000/ $=$ was paid for a different piece of land adjacent to the suit land. - In regard to the suit being barred by limitation, it was submitted for the plaintiff $10$ that the suit land had been occupied uninterrupted until 2018 and that is when the instant suit was filed. As such the suit is not statute barred.

I have carefully considered the pleadings, the exhibits tendered in court and the submissions of both parties with the relevant law and authorities cited therein in resolving this issue as here under.

In civil proceedings, the burden of proof lies upon he who alleges. Section 101 of the Evidence Act, provides that:

$(1)$ 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.

(2) 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 103 of the Evidence Act provides that; 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 the proof of that fact shall lie on any particular person.

Accordingly, the burden of proof in civil proceedings lies upon the Plaintiff or claimant. The standard of proof is on a balance of probabilities. The law, however, goes further to classify between a legal burden and an evidential burden. When a

plaintiff has led evidence establishing his/her claim, he/she is said to have 30 executed the legal burden. The evidential burden thus shifts to the defendant to rebut the plaintiff's Claims.

Before I delve into the merits of the case I would like to note that the suit is not barred by the statute of limitation since the dispute over the suit land arose in 2018 and that is the same year this case was filed by the plaintiff.

4 | Page

$20$

$\overline{25}$

It was the plaintiff's case that he bought 2 acres of land from Semu Lwanga on the 18^th January, 2010 at a consideration of UGX 6,000,000/ $=$ and he was registered on the certificate of title on 21/6/2017 for land comprised in Block 112 Plot 307 at Kyeitabya. The letters of administration issued under Administration cause No.

- 328 of 2008 to Frederick Semu Lwanga were revoked vide civil suit no. 111 of $\overline{5}$ 2013 and granted to Lwandasa Samuel Sekitoleko in 2014. That upon revocation of the letters of Administration, the plaintiff went ahead and purchased from Lwandasa Samuel Sekitolekoto to regularize his interest and a sale agreement was entered into for 3 acres including the land in dispute. - However, in his witness statement the plaintiff stated that in or about 2018 he had 10 intentions to purchase land at Kyeitaba and build a home since there was land for sale. That the defendant being a land broker met him at Kyeitabya Trading centre and took him to the suit land and showed him the boundaries and told him that he was selling and asked him to pay a deposit of UGX 3,000,000/ $=$ and the plaintiff - deposited UGX 10,000,000/ $=$ on his bank account but was never given a sale 15 agreement. That at the same time Semu Lwanga owned 2 acres that were vacant, the plaintiff paid him UGX 6,000,000/ $=$ on the same day and an agreement was entered into with a promise to get him a certificate of title. That the dispute arose in 2018 when the plaintiff's workers were chased off the suit land. - During cross examination the plaintiff confirmed that he got to know about the 20 land in 2018 and he bought from the defendant Plot 26 while he bought Block 112 Plot 307 from Lwandasa who gave him transfer forms and passport photos.

In reexamination he stated that at the time of purchase of the suit land there were people cultivating the suit land. That he built on the suit land and started cultivating on the remaining part. That he paid off the people he found on the land who did not include the defendant.

On the other hand DW1 the defendant in his witness statement stated that he is in occupation of Plot 24 while the plaintiff is on Plot 307. That DW1 bought his land from different bibanja holders in 2004 namely; Muzeeyi Luwawo, Madam Namwandu Kintu and Charles Muriro and the sale agreements were accordingly attached as DEx1 and DEx2. That he occupied his kibanja with the consent of the landlord Samuel Ssekitoleko Lwandasa. And in 2018 Lwandasa allowed him to purchase legal interest in his kibanja that measures 2 acres and an agreement was executed to that effect and transfer and mutation forms given to the defendant to process a certificate of title.

During reexamination he stated that he used to purchase his land through Godfrey Kyambade whom he would give the money to as evidenced by DEx6.

During, the locus visit the defendant was found in occupation of the suit land with a house and crops but not the plaintiff.

Having carefully analyzed the evidence of both parties I find that the plaintiff's evidence is contradictory and inconsistent in many aspects as regards when he bought the suit land and from whom. It is also a departure from his pleadings $\mathsf{S}$ where he stated that he bought the suit land in 2010 and in his evidence he stated that he bought in 2018 and at one point that he bought in 2017. While PW2 in his witness stated under paragraphs 8 and 9 that payments were made between 24^th January, 2016 and 16^th February, 2017 for the suit land and the dispute arose in 2018. In the case of Uganda v. Abdallah Nassur [1982] HCB, it was held that 10 where grave inconsistencies occur, the evidence may be rejected unless satisfactorily explained while minor inconsistencies may have no adverse effect on the testimony unless it points to deliberate untruthfulness.

Secondly, the plaintiff departed from his pleadings contravening the provisions of Order 6 rule 7 of the Civil Procedure Rules which provides that; 15

> "No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."

- 20 Under the above provision, it is settled that parties are not allowed to depart from their pleadings by raising a new claim which is not founded in pleadings or inconsistent to what is pleaded. It is trite the law that not every inconsistence between the pleadings and evidence adduced during trial constitutes a departure. (See: Acaa Bilentina v Okello Micheal (High Court Civil Appeal No. 53 of 2015)). - In the case of Waghorn v. Wimpey (George) and Co. [1969] 1 WLR 1764 it was 25 held that; an inconsistence which is a mere variation whose effect is in essence only a modification or development of what is already pleaded is not a departure from pleadings. However, an inconsistence which by its nature introduces something new, separate and distinct is a departure. - In the instant case I find that the inconsistencies and the contradictions of the 30 plaintiff and his witness are so grave for their evidence to be relied upon by this Court. In the case of Amos Byamukama & Another v. Jairess Kompaire, HCT – 05 $-CV$ – CA – 0042 of 2021, it was observed that;

"It is a time-honored principle of law that parties are bound by their own pleadings. (See Jani Properties Ltd vs Dar-es-Salaam City Council [1966] EA 281; and Struggle (U) Ltd vs Pan African Insurance Co. Ltd. (1990-91)

Karl 46). Therefore, any evidence produced by any of the parties which does not support the pleaded facts or is at the variance with the pleaded facts must be ignored. Parties to a dispute are not therefore allowed, during trial, to depart from pleadings by adducing evidence which is extraneous to the pleadings".

It is my considered view that due to the contradictions as highlighted above that the plaintiff has not proved to the satisfaction of this court his ownership of the suit land and I am therefore unable to find any acts of trespass attributable to the defendant as claimed by the plaintiff.

According to the case of Justine E. M. N. Lutaaya v. Starling Civil Engineering Co. 10 SCCA No.11 of 2002, trespass to land is premised upon interference with the possession of land.

In this case I am unable to tell whether the land the plaintiff claims to be the suit land is the same land that the defendant occupies since the evidence of the plaintiff is not consistent while the defendant gave coherent evidence as to how he acquired the suit in 2004 and that the land he occupies is different from the land that the plaintiff is claimi ng.

This issue is hereby resolved in the negative.

# Issue 2: What remedies are available to the parties?

The plaintiff prayed for general damages to a tune of UGX $18,000,000/$ at an 20 interest rate of 30% p.a from the date of judgment till payment in full, a permanent injunction, prayed for a demolition order and costs of the suit.

The plaintiff having failed to prove his case on a balance of probabilities as against the defendant is not entitled to the remedies sought in the plaint. The suit is hereby dismissed with costs to the defendant.

I so order.

$\mathsf{S}$

Right of appeal explained.


OYUKO ANTHONY OJOK 30

JUDGE

$20/12/2024$