[2023] UGHC 337

#### **THE REPUBLIC OF UGANDA**

# **IN THE HIGHCOURT OF UGANDA AT MASAKA**

#### **CIVIL SUIT NO. 24 OF 2019**

#### **1. MUJJUMBIRE ISAAC**

# **2. SSEBAGALA SIMEON**

**3. BALINDA TOM GEORGE :::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

# **BBANGA CHARLES MARY :::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

*Before; Hon Justice Victoria Nakintu Nkwanga Katamba*

# **JUDGEMENT**.

# **BACKGROUND**

The Plaintiff instituted this suit against the defendant for a permanent injunction restraining the defendant and his agents from trespassing upon or interrupting with the Plaintiffs' quiet enjoyment of the suit land, an order vacating the caveat lodged by the defendant among other reliefs.

Briefly, the Plaintiffs facts are that they purchased suit land comprised in Buddu Block 325 plot 1369 measuring 14.170 hectares from the late Makumbi Anthony and were registered as joint tenants in 2008. The Plaintiffs contend that before purchasing the suit land, they conducted due diligence, visited the land and interacted with LC1 Chairman Mr. Ssekalega and found only one structure of Sserwadda. In 2018 when they tried to conduct a boundary opening, they met with resistance from the defendant hence this suit.

The defendants' facts are that he is a lawful or bonafide occupant on the suit land having purchased several bibanja from different Bibanja owners on the land that initially belonged to the late Kiwanuka in years 1969,1971 and 1972. The defendant contends that this land was later on divided amongst the children of the late Kiwanuka who include the Late Makumbi Anthony, Namuyimbira, and Wassabya Fred. The defendant maintains that he has utilized the said Bibanja with banana plantation, coffee plantations and a big chunk of it is covered with eucalyptus trees. That the late Makumbi Anthony recognized the defendant kibanja interest which fell on the portion


of land which was identified as Block 325 plot 1369 and allowed the defendant to purchase the legal registerable interest of the kibanja that was situated on his land.

The Defendant further stated that upon full payment of the purchase price, he was unable to get his title for the portion purchased and later discovered from land office that the title land been transferred from the late Makumbi into the plaintiff's names. The defendant also stated that he first met the plaintiffs when they came to open boundaries of the suit land and found him in his garden digging. The plaintiffs also stated that the defendant informed the Plaintiff about his interest in the suit land, the plaintiffs left, only to return after 11 years seeking to evict the defendant from the suit land.

# **ISSUES FOR TRIAL**.

At scheduling the parties agreed to the issues below for trial

- **1. Whether the defendant is trespasser on the plaintiffs' land?** - **2. What remedies are available to the parties?**

# **PLAINTIFF'S SUBMISSIONS**

ISSUE No. 1: Whether the defendant is liable for trespass upon the suit land?

The Plaintiff submitted that the law on trespass to land was stated in the case of *Justine E. M. N. Lutaaya vs. Stirling Civil Engineering Company Civil Appeal No. 11 of 2002 (SC).* In that case, *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*.

The Plaintiff further submitted that at common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass. ... Where trespass is continuous, the person with the right to sue may, subject to the law on limitation of actions, exercise the right immediately after the trespass commences, or any time during its continuance or after it has ended.


The Plaintiff argued that the defendant, Mr. Bbanga is oscillating between claiming legal as well as equitable interests in the suit land. That on one hand he variously claims that he is a kibanja holder but on the other he claims he has legal interest in 6 acres of the suit land. That the defendant has contrived confusion in what interest he is claiming whether (legal or equitable interests) as well as the acreage and boundaries of the land he is claiming which casts doubt on the veracity of his claims before court.

The Plaintiff also argues that the Defendant relied on a purchase agreement in his written statement of defence claiming that he bought the suit land from Makumbi Anthony on 30th July 2007 but he did not attach it to his trial bundle and he generally did not rely on it. Moreover, the agreement of 2007 cited a plot number that was non –existent in 2007 but was only created in 2008 when the Plaintiffs subdivided the land to create their title.

The Plaintiffs also argued that court visited the locus in quo and established that the defendant does not have any structure upon the suit land and therefore he has never lived on it. Therefore, there is no proof that he has ever occupied any portion of the suit land contrary to his allegation in his defence.

The Plaintiffs also submitted that the first report from the Senior Staff Surveyor Patrick Kasujja showed that he relied on the information data from the land office and used GPS equipment to establish that the portion of land that Bbanga is claiming is not on the suit land.

The Plaintiff relied on the authority of *Daniel Ssubi Kulubya vs. Matayo Mwanguwangako Mutyaba & Ors H. C. C. S no 70 of 2012 in which the, Lady Justice Alexandra Nkonge- Rugadya held inter alia on page 11 that, "As rightly observed by counsel for the Plaintiffs in submission, the defendants had no structure on the land. They did not therefore provide any proof of occupation…"* On the basis of this authority, the Plaintiffs contend that occupation is not akin to an allegation of utilization of land. The defendant must prove that he "occupied and utilized" the suit land for at least 12 years before the enactment of the 1995 Constitution. That occupation and utilization must both be proved; not in the alternative, but together. They referred this court to Section 29(2)(1)(a) of the Land Act Cap 227


The Plaintiffs also argued that the Defendant's agreements attached to his written statement of defence did not mention that he was purchasing an equitable interest as a bonafide or lawful occupant from the late Makumbi.

The Plaintiffs also argue that the Defendant could not have been on the suit land since 1969 and at the same time have purchase agreements of 2007.

The Plaintiffs also submitted that at the locus visit the defendant could not properly tell his boundaries. The Plaintiffs also argued that the fact that the Defendant lodged a caveat on the suit land to prohibit the Plaintiffs from dealing in the land, amounts to interference.

The Plaintiffs contend that the Defendant backdated his purchase agreements and that his boundaries keep changing which points to deliberate untruthfulness.

In conclusion, the Plaintiffs submitted that the survey report of Mr. Obonyo John demonstrated that the defendant's land was 3.98 acres and as such there is no way he could have purchased 6acres of land from the Late Makumbi Anthony. The Plaintiffs prayed that this court answers the issue in the affirmative.

Issue no. 2: Remedies to the parties.

The Plaintiffs prayed for a permanent injunction, general damages of UGX. 150,000,000/= (Uganda Shillings One Hundred Fifty Million) to atone for the economic inconvenience caused them by the defendant's actions, Punitive/ Exemplary Damages; for pecuniary loss and mental suffering, Interest on the limbs of monetary awards at the prevailing economic value and costs of the suit

# **DEFENDANT'S SUBMISSIONS**


# **Whether the defendant is a trespasser on the plaintiffs' land?**

The Defendant submitted that in *Sheik Muhammed Lubowa versus Kitara Enterprises Ltd C. A No.4 of 1987*, the East African Court of Appeal noted that; *'in order to prove the alleged trespass, it was incumbent on the appellant to prove that the disputed land belonged to him, that the*

*respondent had entered upon that land and that the entry was unlawful in that it was made without his permission or that the respondent had no claim or right or interest in the land'*.

It was submitted for the defendant that as DW1, he testified that in the years 1969, 1971 and 1972 he purchased several bibanja on the suit land and on the adjacent land that belong to the brothers of the late Anthony Makumbi and utilized the same with Banana plantation, coffee planations and big chuck utilized with eucalyptus trees. All the bibanja were situated on the land that belonged to the late Kiwanuka Andrew and it is the same land that was distributed amongst the children of the late Kiwanuka Andrew who included the late Anthony Makumbi, Ddumba Joachim, Wasambya Fred and Namuyimbira Godfrey.

It was also submitted for the defendant that in accordance to his evidence, he testified that on 30/7/2007, he executed an agreement with the late Anthony Makumbi and acquired a legal interest for kibanja that was situated on the land that the late Makumbi had obtained as his share and paid him sh.3,000,000/= (three million shillings). A copy of the said agreement was exhibited and marked by court as DEXH1. However, the late Makumbi sold off the entire title to the plaintiffs without giving the defendant a chance to mutate his share and hence the DW1 lodged a caveat of the title to protect DW1 interests in the suit land.

DW2 a brother to the late Makumbi testified that defendant owned bibanja on the land that was given to the late Makumbi Anthony, Namuyimbira Godfrey and Wassabya Fred and that defendant ownership dates as far back as 1970. DW2 testified that he grew up when the defendant was utilizing the Bibanja. DW2 further testified that he was aware that the late Makumbi sold land on which the defendants Kibanja was situate because the late Makumbi informed DW2 about the transaction but that the late Makumbi died before mutating off his portion.

The Defendant submitted that an equitable interest is valid against the entire world, except for the bona fide purchaser of a legal estate for value without notice actual, constructive or imputed. The onus is on the purchaser to establish himself as such; and it is a heavy burden to discharge. He referred this court to *Pilcher v. Rawlins (1872) 7 Ch. App. 259).* The purchaser must show that his absence of notice was "genuine and honest" He also referred this court *to Midland Bank Trust Co Ltd v. Green (No. 1) [1981] A. C. 513).*

The defendant defined due diligence under *the Black's Law Dictionary (1968), 4th Edn., at page 544, in which it's defined as "a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.*

The Defendant disputed the Plaintiff's discharge of their duty of carrying out due diligence before purchasing the suit property. The Defendant submitted that had the plaintiff indeed conducted due diligences that an ordinary and reasonable purchaser should conduct, they would have found out of the defendant's interests in the suit land even before finalizing. That the Plaintiffs omitted to execute this duty.

The Defendant submitted that while at the locus in quo, court noted that the Defendant owns a forest of eucalyptus trees, a fact that any resident randomly picked upon in the area knows including the LC1 chairman of the area(PW2) who allegedly was contacted by the plaintiffs before the purchase of the suit land.

The Defendants also submitted that the Plaintiff has not provided any evidence to prove the former's illegal entry on the suit land.

The Defendant maintained that he has been on the suit land since 1969 and that the survey also proved that he was currently in occupation of 3.98acres of the suit land.

The defendant cited the case of *Katarikawe Vs. Katwiremu, Kampala District Land Board Vs. National Housing and Construction Corporation and Kampala District Land Board and Anor. Vs. Vanansio Babweyara and Ors in which it was emphasized that interests of bonafide occupants should not be affected by transfers to third parties without considering their rights as sitting tenants, or bonafide occupants*

The Defendant submitted that the contradictions as the size of the defendants land in two survey reports was because whereas Mr. Kasujja looked at the whole piece of land that the defendant occupies, Mr. Obonyo on the other hand, only measured the defendants portion that only falls within plot 1369. The Defendant further submitted that there is no legal provision that bars a person'sfamily member from witnessing any agreement or else the plaintiffs would have cited the law. That the fact that some of the witnesses to the defendant's sale agreements were family members did not impute forgery on the Defendant.

The Defendant also submitted that even the former registered proprietor, Kiwanuka acknowledged his kibanja proprietorship and thus did not sue him in his lifetime.

The Defendant also testified that it was the Late Makumbi Anthony who told him about the plot number of 1369 for the title that was later created in 2008.

In conclusion, the Defendant prayed that the issue be resolved in the negative.

The Defendant prayed that the suit be dismissed with costs to him.

## **Determination of the Suit.**

I have carefully considered the pleadings, the evidence and the submissions of counsel for the parties and below are the findings of this court on the issues.

## **1. Whether the defendant is trespasser on the plaintiffs' land?**

The defendant pleaded that he bought different parts of bibanja from the late Kiwanuka(former registered proprietor)'s children in different earlier years until recently when he also bought from the Late Anthony Makumbi six (6) acres in 2007 on Plot 1369, the suit land. The Plaintiff maintained his pleadings in his testimony in court, only that his purchase of the six acres from Anthony Makumbi has been challenged by the Plaintiffs, who adduced evidence of creation of title to Plot 1369. The evidence in the title and the deed print shows that the title to plot 1369 was created in 2008. It is against this background that the Plaintiffs contend that the Defendants agreements are an ingenious product of backdating.

I must state that the above state of affairs creates a strong presumption of doubt as to the genuineness of the defendant's agreements that quote plot 1369. To rebut the Plaintiffs's claim, the Defendant testified that the plot number was disclosed to him by the Late Makumbi Anthony, the former registered proprietor.

The above doubt, notwithstanding, the Plaintiffs admit in their plaint that at the time they bought the suit land, there was on it a lawful occupant, a one Serwadda with a structure/house. This admission is important in resolving the issue of as to whether the defendant is a trespasser. This is because, according to the Plaintiffs, it appears that for one to be a lawful occupant on the land, s/he must have a structure/home on the land and the admission also creates a presumption of a likelihood of existence of other lawful occupants who the Plaintiff did not get to meet at the time of purchase.

The area Local council 1, chairman of the area testified as a Plaintiffs witness number 2 (Pw2). During cross examination in paragraphs 13 to 18, he testified and I quote; *"The defendant has a kibanja on the suit land with eucalyptus trees on it. He has been on the kibanja for a long time like 20 years. I have been chairperson for the area for about 15 years."*

When court asked the Pw2 as to when the plaintiffs had approached him to introduce themselves to him as landlords, contrary to what is recorded in his witness statement, he replied that the truth is that the Plaintiffs approached him 2017 not 2007. This implies that the area LC1 chairman had seen Banga utilize the suit land/kibanja long before the Plaintiffs.

The above testimony of Mr. Tom Ssekalega, the LC1 official also means that the Plaintiffs omitted to undertake the necessary due diligence that should ordinarily be undertaken before purchasing lands. Due diligence includes making inquiries from the area local council authorities and neighbours to the suit land to ascertain the exact proprietary and 3rd party interests if any in the land being considered for purchase. The Plaintiffs put the cart before the horse in purchasing the land and omitted to make the necessary inquiries from the local area authorities. They only remembered to meet the area local authority ten years later when they were struggling to assert their ownership claims.

*Land is of eminent value and thorough investigations must be carried out before purchase as lands are not vegetables that are bought from unknown vendors See* **John Bageire vs Ausi Matovu CACA No.7 of 1996 and Hajji Nasser Katende vs Vithalidas Halidas & Co. Ltd CACA No.84 of 2003.**


Contrary to the Plaintiffs submissions Dw2's testimony had nothing in it to suggest that he had a grudge against the Late Makumbi Anthony and even he had such grudge, I do not see reason as to why it would be construed against the Plaintiffs.

Dw1's testimony corroborated that of Pw2 that indeed the Plaintiff has a eucalyptus forest on the suit land. CW2, Mr. Kasujja testified in cross examination that whereas parts of the parcels of bibanja said to belong to the defendant lie on Plot 2487, he was unable to open up boundaries of the suit land, Plot 1369. He further testified that for the above reason, he was not sure on as whether the second parcel of the defendant's kibanja falls on plot 1369 or not. He also testified that map 1369 is not captured on their cadaster which explains why he could not tell when he put the data into their system.

On the other hand, Mr. Obonyo, a now retired surveyor testified that the Defendant's bibanja on plot 1369 measures 3.98acres. This is the land that the defendant occupies and it's the size of land that this court believes he is entitled to in his earlier purchases of 1969.

*S. 35(2) of the Land Act 1998 provides that the owner of land who wishes to sell the reversionary interest in the land, shall subject to this section, give the first option of buying that interest to the tenant by occupancy.*

*S.35(8) of the Land Act 1998 provides that a change of ownership of title effected by the owner by sale, grant and succession shall not in any way affect the existing lawful interests and the owner shall be obliged to respect the existing interest.*

As earlier noted, the Plaintiffs acquired the suit land without taking the necessary precaution of ensuring that the land they were acquiring was free from 3rd party lawful occupants. They even admitted in their plaint that at the time of purchase, there was one such lawful occupant, a one Serwadda with a structure on the land. The Plaintiffs have not adduced any evidence to prove that Serwadda consented to their purchase of the land.

*A person who acquires land with structures that ought to have put him/her to further inquiry, ignores them and thereby acquire the land without regard to the other person's interest, does so illegally and fraudulently and acquires subject to the other party's interests. See A. K. P. M Lutaaya vs. Uganda Posts and Telecommunications Corporation, (1994) KALR 372)*


Both the plaintiffs and defendant's witnesses testified that the defendant has a kibanja on the suit land. It has thus emerged that the Defendant is a lawful occupant on part of the suit land. The terms lawful and bonafide occupant as interchangeably used by the defendant's Advocates cannot be used to defeat his interest in the land. Those are mistakes of his Advocates who drafted his pleadings that should not be visited on him.

In conclusion therefore, this court is unable to declare him a trespasser. I hasten to add that the defendant should from today onwards limit his activities on the suit land to his 3.98acres only and not to 6 acres as claimed.

The issue is answered in the negative.

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

The defendant prayed that the suit be dismissed with costs. This court having found that the defendant has substantially succeeded hereby dismisses the suit and the defendant is hereby awarded a half of the taxed costs of this suit.

In conclusion, Judgment in this matter is hereby entered for the Defendant and against the Plaintiff. The suit is dismissed with half of the taxed costs awarded to the Defendant.

I so order.

Orders of court;

- 1. The defendant is not a trespasser on the suit land. - 2. The defendant shall limit his activities on the suit land to 3.98acres - 3. The suit is dismissed. - 4. The defendant is awarded a half of the taxed costs of this suit.

Dated at Masaka this 18th day of April, 2023

*\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

*Victoria Nakintu Nkwanga Katamba*

*Judge.*

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