[2021] UGHCLD 59

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KABALE**

## **LAND CIVIL SUIT NO. 0036 OF 2016**

# 5 **MUSINGUZI JACKSON------------------------------------------------------------------- PLAINTIFF**

**VS**

## 10 **1. TUMUHEIRWE FUDEL**

# **2. ZIRIHEIHI GEREVA**

# **3. TUMUGABIRWE JAMES**

## **4. TINKAMWEBARIRE GABRIEL**

## **5. BYAMUGISHA BONEFACE**

# 15 **6. BYAMUGISHA SUNDAY BERNARD**

## **7. KARUGABA REMEGIO**

## **8. BESIGOMWE PATRICK**

# **9. BAKIGUNJA COSTA**

# **10. KEMYAKA JACKLINE**

## 20 **11. TUMUSIIME RESTA**

# **12. BANDONDA FRANCIS**

# **13. TWESIGYE INNOCENT------------------------------------------------------------ DEFENDANTS**

## **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

# **JUDGMENT**

The Plaintiff, Musinguzi Jackson sued the Defendants jointly and severally seeking the following remedies;

- 1. An eviction order. - 10 2. A declaration that the Defendants are trespassers on a Kibanja situated at Nyabirerema, Rutoro, Garama Cell, Katojo Parish, Rutenga Sub-County, Kanungu District measuring approximately 26 acres. - 3. A declaration that the Plaintiff is the rightful owner of a Kibanja found at Nyabirerema, Rutoro, Garama Cell, Katojo Parish, Rutenga Sub-County, 15 Kanungu District measuring approximately 26 acres. - 4. A permanent injunction restraining the Defendants, their agents, servants and any person claiming under them from laying any future claims over the same Kibanja. - 5. General damages for trespass in the form of mesne profits. - 20 6. General damages for inconvenience, disturbance, psychological torture. - 7. Costs of the suit.

## Plaintiff's case

Four witnesses testified for the Plaintiff. The foundation of their testimony was an agreement, Exb. P.2. This document indicates that on the 28th November 2003, Mr.

25 Mbarebaki Atanazio and his wife Mrs. Mbarebaki Martina Kafunda handed over the

suit land to Mr. Kasigazi Tukunde Milton, PW3, and Mr. Kagiko Kajuni Bernard, his brother, in the presence of witnesses including PW2 and PW4.

The Plaintiff, Mr. Musinguzi Jackson, PW1, testified that on the 7th day of December 2004 he purchased the suit Kibanja from Kasigazi Tukunde Milton and Kagiko Kajuni

5 Bernard at UGX. 10,000,000/=. A copy of the sale agreement and its translation were tendered into evidence and marked Exb. P.1. He told this court that prior to the purchase, he visited the suit land and made the appropriate inquiries to satisfy himself that the vendors were the rightful owners of the suit land.

PW1 added that he was informed that while the suit land was still under the custody of 10 Mbarebaki Atanazio, he hired it out to some people including his children and relatives to cultivate on it as licensees. Mr. Musinguzi testified that he talked to some of the children of the late Mbarebaki who assured him that the land belonged to the vendors and that all licensees who used to cultivate on it before were stopped with no one having any claim over the suit land. PW1 received similar assurances from PW4. He then 15 proceeded to enter into a sale agreement with the vendors.

After the sale, the Plaintiff was involved in a terrible road accident in September 2005 which left him bedridden for close to eight years. By the time he returned to his land in 2013, he found the Defendants cultivating and growing trees on the land. This was despite some of them, like the 5th Defendant, Byamugisha Boneface being witnesses to

20 Exb. P.2, the hand over agreement. When the Plaintiff confronted some of the Defendants about the trespass they informed him that they believed he had died since they had not seen him for a long time after his accident.

Mr. Musinguzi added that he has on several occasions asked the Defendants to vacate his land in vain. A copy of a letter dated 1st June 2016, from the RDC, Kanungu, was 25 tendered into evidence and marked Exb. P.4 to indicate the Plaintiff's efforts to seek

redress over the matter.

According to Mr. Mwija Lawrence, PW2, Suzana Muteta was the only daughter of the land owner, Mr. Rukandonda. Before he died, Rukandonda left his daughter Muteta in the care of his older brother Mbarebaki and his wife. The late Rukandonda also left the suit land with Mbarebaki with instructions that he hand it over to Suzana Muteta when

5 she attained majority age. He added that PW4, Mr. Bamuturaki Gerevasio, Chairman LC1 Garama cell, Katojo parish, Rutenga sub county, Kanungu district, where the suit land is located, testified that he affixed his signature to Exb. P.2.

PW2 added that he was a son to Mbarebaki and the secretary to the hand over agreement, Exb. P.2. He confirmed that his parents, the late Mbarebaki and his mother

10 Martina Kafunda who is still alive together with all the other signatories appended their signatures/thumb prints in his presence and the suit kibanja was handed over to the sons of the late Muteta.

Regarding the sale, PW2 testified that he was approached by the Plaintiff who was desirous of purchasing the suit kibanja in 2004. On the 7th day of December 2004, PW2 15 stated that he was requested to write a sale agreement, Exb. P.1 and it was witnessed by

the LC1 Chairperson, PW4.

PW3, Mr. Kasigazi Tukunde Milton, one of the two vendors, testified that he and his elder brother Kagiko Kajuni Bernard are sons of the late Suzana Muteta who was a daughter to late Rukandonda, their grandfather. Their mother Muteta died in 1999. 20 When PW3 and his brother attained majority age, in 2003, the late Mbarebaki called a family meeting and officially handed over the suit land to them. PW3 was astonished that some of the people who attended the meeting, are the same people claiming the suit land. He confirmed that he and his brother sold the suit land to the Plaintiff on the 7 th/12/2004 at UGX. 10,000,000/= and that they have never authorised the Defendants 25 to be on the suit land.

PW4, Mr. Bamuturaki Gerevazio, the LC.1 Chairperson of Garama Cell, Katojo Parish, Rutega Sub-county, Kanungu District testified that he first came to know the Plaintiff in 2004 when he approached him inquiring about the suit land. He added that the Plaintiff later purchased the same kibanja from the orphans Kasigazi (PW2) and 5 Kagiko. The sale agreement was written by PW2, Mwija Lawrence, that PW4 signed

and stamped on it as a witness.

Mr. Bamuturaki testified that the family of the late Mbarebaki had earlier come to him with a written agreement, Exb. P.2, which indicated that they had given the suit land to the vendors. He read through the agreement, noted the contents, signed and stamped on 10 it.

## Defendants' Case

Thirteen witnesses testified for the Defendants including the 10 out of the 13 Defendants. The 3rd Defendant, Tumugabirwe James, the 7th Defendant; Karugaba Remegio and the 12th Defendant, Bandonda Francis did not appear to give their 15 evidence in defence of this suit in court. The three witnesses called to testify on behalf of the Defendants were; DW1, Malitina Kafunda; DW12, Kyomugisha Bonny and DW13, Mugambagye Robert.

DW1, Malitina Kafunda testified in her capacity as the widow to the late Mbarebaki Atanazio. She denied the contents of Exb. P.2 and testified that for 50 years she has 20 been in occupation of about 4 strips out of the suit land. She and her husband acquired it from her father- in- law, Mukombe, as a marriage gift. DW1 clarified that Mbarebaki's brothers, Katoryo and Rutuga owned separate pieces of land from the estate of their father, Mukombe.

Ms. Malitina Kafunda added that she knew Suzana Muteta, who was her husband's 25 niece. Rukandonda, Mbarebaki's brother, left the little girl under their care before he died. He also left land for her but it is located at Kyanjobe, outside the suit land. DW1 further stated that Muteta took possession of her land and cultivated it until she died. Muteta never laid any claim to the suit land. DW1 testified that the suit land belongs to many people including the Defendants who acquired the same either by purchase or inheritance. The 6th Defendant, Byamugisha Sunday Bernard and the 9th Defendant,

- 5 Bakigunja Costa purchased their land from DW1 and her husband. Further, Mbarebaki gave the 7th Defendant, Karugaba Remegio, a part of their land as a gift. PW2, Mwija Lawrence, her son and his wife the 10th Defendant, Kemyaka Jackline, received some land as a marriage gift. The 10th Defendant is in still in occupation of part of it but the other part was sold to Byakurama David, DW3. - 10 Ms. Malitina Kafunda, Mbarebaki's wife, distanced herself from Exb. P.2 and denied knowledge of affixing her signature on it.

The 1st Defendant, Tumuheirwe Fudel, (DW11), testified that he owned one strip on the suit land which he inherited from his parents, Mr and Mrs. Mbarebaki in 1982. Mr. Tumuheirwe added that he has enjoyed quiet possession of his land since then and he

15 utilises it for cultivation and growing trees. He dismissed Exb. P.2 as a forgery stating that he enjoyed a good relationship with his parents and they could not enter into such an agreement without his knowledge.

Mr. Ziriheihi Gereva, the 2nd Defendant, (DW5), testified that the late Rutuga was his father and the late Mbarebaki was his uncle. He added that he acquired part of the suit

20 land in 1975 as a marriage gift from his father. Since then, he has enjoyed quiet possession of the land and neither Susan Muteta nor her sons have ever owned his land. He dismissed the sale agreement, Exb. P.1 as a hoax.

Mr. Tinkamwebarire Gabriel, the 4th Defendant, (DW4), testified that he owned part of the suit land which he acquired in 1965 from Katoryo, his late father, as a marriage gift.

25 Mbarebaki was his uncle and Mr. Tinkamwebarire testified that he was unaware of any occasion at which Mbarebaki handed over land to Suzana Muteta or her sons. He knew Zikandonda alias Rukandonda as the father to Muteta who owned land at Kyanjobe and not Nyabirerema, where the suit land was situated. The 4th Defendant denied being consulted by the Plaintiff prior to his purchase of the land and concluded that the sale of the suit land was unlawful.

- The 5 5 th Defendant, (DW14), Byamugisha Boneface, testified that the late Mbarebaki and his wife Mrs. Mbarebaki Kafunda (DW1) are his parents. He added that he inherited a part of the suit land from them. It measures four strips and he utilizes it for growing trees. Mr. Byamugisha testified that he knew the late Muteta Suzan as the mother to both Kasigazi and Kagiko. None of them had ever laid claim to his land. He dismissed - 10 Exb. P.2 as a hoax and void stating that he only came to know the Plaintiff after this suit was instituted against him. And that the Plaintiff never asked Mr. Byamugisha about his ownership of the suit land. The first person to inform him about the sale was PW4, the Chairman, who claimed that he had signed a sale agreement regarding the subject matter while at Rutenga Police Post. - Mr. Byamugisha Sunday Bernard, the 6 15 th Defendant, (DW2), testified that he owns about 12 acres of the suit land having acquired it by purchase from several vendors. Copies of the available sale agreements were tendered into evidence. These included sales between Mr. Byamugisha and; Mbarebaki, (see Exb. D.5; 18th January 2003) Tinkamwebarire(DW4), (see; Exb. D.4; 1st May 2011), Rutuga (see; Exb. D.1: 24th July 2011), Malita Tindisheka and Bingo, (see Exb. D.3; 23 20 rd August 2007). Since purchasing the land, Mr. Byamugisha has enjoyed both exclusive ownership and quiet enjoyment, growing trees and planting crops on it. He maintained that Exb. P.2, the agreement, where Mbarebaki is alleged to have given land to sons of Muteta is a hoax - 25 that the Plaintiff did not conduct due diligence prior to the sale, otherwise if he had, he would have found out that the vendors did not have land to sell. Further, in 2015, PW4, Bamuturaki Gerevazio, was a witness to a sale of land agreement between himself and

which even Mbarebaki's widow, DW1, denies knowledge of. Mr. Byamugisha testified

Kasigwa David; Exb. D.6, dated 30th July 2015. The land in question comprised part of the suit land.

In early 2016, after the Defendants learnt from PW4 that the sons of Muteta had sold the suit land to the Plaintiff they reported the matter to the Chairperson LCIII Rutenga

5 Sub-county who referred them to Rutenga Police Post. According to Mr. Byamugisha, it was at the police post that PW4 informed both Police and the Defendants that he signed and stamped both agreements; Exb. P.1 and Exb. P.2, without perusing their contents.

The 7th Defendant, Mr. Karugaba Remegio's witness statement was filed on court record on the 19th June 2018. When the matter came up for hearing on the 9 10 th March 2020, Counsel for the Defendants reported that the 7 th Defendant was unable to give his defence because he was suffering from a mental illness affecting his memory.

Mr. Besigomwe Patrick, the 8th Defendant, (DW6), testified that he acquired part of the suit land from Byamukama Alex, the son of Mwija(PW2). Copies of the sale 15 agreements were admitted into evidence and marked Exb. D.7 and Exb. D.8. Mr. Besigomwe added that the 2015 sale agreement, Exb. D.8, was witnessed and signed by Mwija (PW2) and his wife Kemyaka Jackline (10th Defendant) on the 18th May 2015 and that Exb. D.7 was witnessed by Kemyaka Jackline. Since the purchase, he has been in exclusive possession of his part of land and had quiet enjoyment until the Plaintiff 20 made the instant claim. Mr. Besigomwe reiterated the evidence of the preceding defence witnesses that Kagiko and Kasigazi have never laid any claim over his land.

Mr. David Byakurama, (DW3), is a Defendants' witness. He testified that he owns part of the suit land which he is purchased from Mwija (PW2) in 1995. This was before PW2 authored the agreement, Exb. P.2, between Mbarebaki and the sons of the late 25 Muteta. He added that the 1995 sale agreement was drafted and signed by Mwija's wife (the 10th Defendant). A copy of the sale agreement was admitted and marked Exb. D.6. DW3 testified that he has never seen the Plaintiff making inquiries in the village on whether the Defendants were the real owners of the suit land.

The 9th Defendant, (DW8), Bakigunja Constansia testified that she acquired part of the suit land by purchase from Mbarebaki and his wife in 1993 and she has been in

5 exclusive possession of that land undisturbed until the Plaintiff started laying claims to it. A copy of her sale agreement was tendered into evidence and marked Exb. D.9. She testified that PW4 told police at Rutenga Police Post that he signed several agreements involving the suit land brought to him by PW2 without reading the contents.

Ms. Kemyaka Jackline, the 10th Defendant (DW7), testified that she acquired her part 10 of the suit land from her father- in- law, Mbarebaki, as a gift upon her marriage to her husband, Mwija Lawrence(PW2), in December 1982. She gave a portion of the land to Byamugisha Alex, her son in 2010 and he in turn sold it to DW6. Ms. Kemyaka testified that she and Mwija have lived separately since 1996 when Mwija left their home but she remained resident on the suit land.

- Ms. Tumusiime Resta, the 11 15 th Defendant, (DW9), testified that she owns 3 strips out of the suit land, having acquired it from her son, the 13th Defendant Tumwesigye Innocent. Her son purchased the land in 2010 from R. Kenyangi and Tubenawe. Since then she has enjoyed quiet possession of the land and has never seen the Plaintiff inquiring whether Kasigazi and Kagiko owned the suit land. - The 13 20 th Defendant, (DW10), Mr. Tumwesigye Innocent, testified that he purchased his part of the suit land from Kenyana and Zephirimo Tubenawe on the 24th/10/2010. A copy of the sale agreement was admitted into evidence and marked Exb. D.10. He added that he enjoyed exclusive possession of the land until the Plaintiff, who is unknown to him, made a claim upon it. - 25 Ms. Kyomugisha Bonny, (DW12), is the second defence witness who testified that she had no claim on any part of the suit land. She was, however, familiar with the land since

she was a neighbour and had been for 29 years. It was her testimony that all the Defendants were known to her and had acquired their interests by either sale or inheritance through Katoryo, Mbarebaki and Rutuga. Ms. Kyomugisha did not know Muteta.

- 5 The third defence witness, Mugambagye Robert (DW13), testified that he too had no claim on the suit land. However, the Defendants were known to him and he knew that they had acquired their land by either inheritance or purchase and person had ever come forward to challenge their ownership save for the Plaintiff who has never occupied it. He added that he did not know the Plaintiff and the people he alleges to have sold to - 10 him the suit land.

Given the nature of the claim, both Counsel agreed that a visit to the locus was not necessary to the determination of the rights of the parties. Counsel filed written submissions which this court shall consider during the resolution of the agreed issues below;

# 15 **Issues**

**1. Whether the suit kibanja has ever belonged to Rukandonda and whether Mbarebaki Atanazio has ever been a caretaker of the same kibanja.**

**2. Whether Kasigazi Tukunde Milton and Kagiko Kajuni Bernard owned the suit** 20 **Kibanja and whether they passed any interest in the suit kibanja to the plaintiff.**

**3. Whether the defendants are trespassers on the suit kibanja.**

**4. What remedies are available to the parties?** ### **RESOLUTION**

### **Issue 1**

# **Whether the suit kibanja has ever belonged to Rukandonda and whether Mbarebaki Atanazio has ever been a caretaker of the same kibanja?**

5 Before I turn to the resolution of this issue, I must clarify on the legal nature of the suit land. The Plaintiff referred to the 26 acre- suit land as a *Kibanja* in the Plaint and during the hearing. This land is located in Kanungu district. The question is whether the land is a *Kibanja* within the meaning of the law.

Article 237(3) of the Constitution of the Republic of Uganda provides that land in

- 10 Uganda shall be held in accordance with the land tenure system provided in the Constitution namely; - '237. Land ownership. - (1) Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this Constitution. - 15 (2)… - (3) Land in Uganda shall be owned in accordance with the following land tenure systems- - (a) Customary; - (b) Freehold; - 20 (c) Mailo; - (d) Leasehold. …'

In Ponsiano Katamba V Cotilda Nakirijja Civil Appeal 169 of 2017, the Hon. Justice Christopher Madrama, JA, considered the definition of a *Kibanja* extensively. He held that;

*'A Kibanja holding does not fall under the tenure system known as 'customary' under Article 237 (3) (a) of the Constitution but fall under article 237 (3) (c) that recognises mailo tenure. It is a special form of tenure known as a Kibanja that is recognised within another tenure of a registered owner known as mailo owner. A Kibanja is by definition*

5 *under the Land Act Cap 227 a lawful occupancy falling within registered land particularly described as Mailo land...*

*Section 1(t) of the Land Act provides as follows; Mailo land tenure means the holding of registered land in perpetuity and having roots in the allotment of land pursuant to the 1900 Uganda Agreement and subject to statutory qualifications, the incidents of* 10 *which are described in section 3.*

…*section 3(4)(c) of the Land Act makes the rights of the mailo holder subject to the customary and statutory rights of those persons, lawful or bona fide in occupation of the land at the time the tenure was created and their successors in title.*

None of the parties in this suit made reference to a landlord –tenant relationship or any 15 payment of rents; a crucial tenet of the Kibanja holding. Neither was there evidence led to suggest that the suit land was registered. It was more likely that the suit land was held under customary tenure under Article 237(3)(a) of the Constitution given the fact that it is unregistered and is not a Kibanja. The incidents of customary tenure are described in detail under section 3(1) of the Land Act.

20 Turning to the issue of whether the suit land was ever the property of Rukandonda, the evidence led by the Plaintiff hinges around Exb. P.2, a hand over agreement. The agreement is presented in typed Runyankole/ Rukiga language and an English translation was provided. It is dated 28th November 2003. A perusal of the original document reveals hand written additions to the agreement where the name of the second

25 brother, 'Kagiko Kajuni Benaldo' is added at three different points in the document. This name is added one last time at the attestation section of the document underneath

the typed name of PW3 Kasigazi Milton. I make these observations because the one whose name was added in ink, Kagiko Kajuni Benaldo, did not appear as a witness for the Plaintiff to testify as the co-recipient of the suit land. The hand written addition of his name to Exb. P.2, casts some doubt as to whether Kagiko Kajuni was ever a party 5 to this document at all and hence its overall validity.

Further, Exb. P.2 categorically provides of a list of persons to contact to seek information from in case of inquiries on the history of the suit land. These are; Mr. Rwamukwaya Mikeri, Mr. Rutuga Seperiano, Mr. Katahirwa, the family of Katemba and the family of Kabusha. It was not clear from the Plaintiffs whether these persons 10 were alive or deceased and none of them were called as witnesses. PW1 did testify that he was informed that all neighbours to the suit land were deceased but they ought to have had successors in title who were in occupation of the land nonetheless. This court has already established that this land was more likely than not held under customary tenure since it was not a Kibanja. Evidence from persons stated to have direct 15 knowledge of its history would have been extremely useful.

This court was left with the evidence of PW2, Mwija Lawrence, son to Mbarebaki, who testified as the person who drafted the agreement, had it typed, ensured the parties to it understood its contents and witnessed their signing of it. In particular, PW2 testified that he signed as the 3 rd witness. And that the 5th Defendant signed as the 4th witness. This signature was denied by the 5 20 th Defendant when he testified in court. DW1, also denied affixing her thumb print to the document as the 2nd witness. Her testimony was that her deceased husband never handed over land to the sons of Suzan Muteta. As far as DW1 knew, Muteta occupied and utilised her land in her life time and it was not the

Counsel for the Plaintiff invited this court to dismiss Mr. Byamugisha Boneface, the 5th 25 Defendant, DW14 and Ms. Malitina Kafunda, DW1 as unreliable and untruthful witnesses. According to Counsel for the Plaintiff, Ms. Kafunda could not specify her

suit land which was rightfully held by the Defendants.

true age, lied about owning 4 strips out of the suit land and about how many wives Mukombe, her father-in law, had. In addition, DW14 at first denied knowledge of Exb. P.2 but then went ahead to admit that his name and the names of Mr. Mbarebaki Atanazio, Mrs. Mbarebaki Martina Kafunda and that of Ncwari Boneconsira, were all

5 in his handwriting on Exb. P.2. This admission, submitted by Counsel for the Plaintiff, was corroboration of the Plaintiff's assertion that DW1 was a witness to Exb. P.2 despite her denial.

I have perused the court record for the testimonies of DW1 and DW14. It is true that DW1 could not specify her true age. On her written statement it was indicated that she 10 was approximately 80 years old. When Counsel for the Plaintiff pressed her under cross examination for her actual age, she replied that she did not know. I am not convinced that this failure to recollect her age amounted to intentional deceit. It was not inconceivable that an old illiterate lady could have difficulty recalling the day she was born. DW1's statement was silent on her father- in –law Mukombe's wives. During 15 cross-examination she stated as follows;

'*Mukombe had two wives. The wives were Keitisi and Kyakwesiba. One called Bakenga Jolly was also his wife, I am not telling lies. All three wives got children.'*

It is from this excerpt that Counsel for the Plaintiff concludes that DW1 lied about the number of Mukombe's wives. Again, I am unable to agree with Counsel that DW1's

- 20 intention was to mislead the court in her answers under cross-examination. It is trite that failure to correctly respond to a question does not automatically mean the witness is untruthful, the witness could be suffering from memory lapse. The burden remains on the one who alleges deceit to prove it and I find that the Plaintiff has not been able to do so in relation to DW1. - 25 DW14 did not state that he wrote on Exb. P.2. He denied knowledge of it. What he did state was that,

*'I am seeing my signature but I have never signed it. I think they scanned my signature. …My handwriting is against the R. H. T of number 1,2,4 and 5. I have never seen a typed agreement…I believe our brother the secretary got those handwritings of mine and put them on the document. He had access to agreements at home...'*

5 It was clear that there was no admission of the contents of Exb. P.2 by DW14. If anything, the witness was making serious allegations of forgery of Exb. P.2 against PW2, his brother.

Three out of the 13 Defendants did not testify in court and Counsel for the Defendants explained that they no longer had instructions to represent them. Their witness 10 statements were expunged from the court record. However, the burden still lay on the Plaintiff to prove the claim against all the Defendants to the required standard. See Administrator General v Kitata &11 Others 2012 (HCB)77, Percy Tuhaise, J,(as she then was) held that; '*it is the law that even whether a suit proceeds ex parte or not, the burden of the plaintiff to prove his/her case to the required standard remains.'*

15 PW3, Kasigazi Milton testified that he received the land alongside his brother from Mbarebaki and his wife. There is no evidence on the court record that the brothers Kasigazi and Kagiko ever utilised the suit land at all even before the handover. This was customary land. The court record is filled with the testimony of the 10 Defendants who each testified that they were all in occupation of the suit land some as far back as 20 1975.

Exb. P.2 was vehemently denied by all the 10 Defendants who testified and DW1, the wife to Mbarebaki, the supposed initiator of the agreement. The Plaintiff was therefore duty bound to prove its authenticity on a balance of probabilities which would demonstrate that the land belonged to Rukandonda. While Kasigazi was called as a 25 witness to the receipt of land, Kagiko did not testify in court. It was the same Kagiko

whose name appeared to have been added to the already typed agreement, Exb. P.2, as an afterthought.

The Plaintiff led no evidence at all of the year in which Rukandonda acquired the land, what activities if any he carried out on it and for how long before he passed it on to

5 Mbarebaki for safe custody. All this was relevant and crucial evidence. Most of the Defendants testified that they acquired customary interest in the land by gift from their parents or in-laws upon marriage and they had been resident on it, cultivating crops and planting trees uninterrupted ever since.

The 10 Defendants, led uncontroverted evidence of their ownership, occupation and 10 utilization of the land as follows;

- a. The 1st Defendant, Tumuheirwe Fudel, (DW11), testified that he owned one strip on the suit land which he inherited from his parents, Mr and Mrs. Mbarebaki in 1982 - b. Mr. Ziriheihi Gereva, the 2nd Defendant, (DW5), testified that the late Rutuga 15 was his father and the late Mbarebaki was his uncle and that he acquired part of the suit land in 1975 as a marriage gift from his father. - c. Mr. Tinkamwebarire Gabriel, the 4th Defendant, (DW4), testified that he owned part of the suit land which he acquired in1965 from Katoryo, his late father, as a marriage gift. - d. The 5 20 th Defendant, (DW14), Byamugisha Boneface, testified that the late Mbarebaki and his wife Mrs. Mbarebaki Kafunda are his parents. He added that he inherited a part of the suit land from them. It measures four strips and he utilizes it for growing trees. - e. Mr. Byamugisha Sunday Bernard, the 6th Defendant, (DW2), testified that he 25 owns about 12 acres of the suit land having acquired it by purchase from several vendors.

- f. Mr. Besigomwe Patrick, the 8th Defendant, (DW6), testified that he acquired part of the suit land from Byamukama Alex, the son of Mwija(PW2). - g. The 9th Defendant, (DW8), Bakigunja Constansia testified that she acquired part of the suit land by purchase from Mbarebaki and his wife in 1993 and she has 5 been in exclusive possession of that land undisturbed. - h. Ms. Kemyaka Jackline, the 10th Defendant (DW7), testified that she acquired her part of the suit land from her father- in- law, Mbarebaki, as a gift upon her marriage to her husband, Mwija Lawrence(PW2), in December 1982. She gave a portion of the land to Byamugisha Alex, her son in 2010 and he in turn sold it 10 to DW6. - i. Ms. Tumusiime Resta, the 11th Defendant, (DW9), testified that she owns 3 strips out of the suit land, having acquired it from her son, the 13th Defendant Tumwesigye Innocent. - j. The 13th Defendant, (DW10), Mr. Tumwesigye Innocent, testified that he 15 purchased his part of the suit land from Kenyana and Zephirimo Tubenawe on the 24th/10/2010. A copy of the sale agreement was admitted into evidence and marked Exb. D.10.

The Defendants have demonstrated in intricate detail, with agreements and consistent testimony how they each acquired their interest in the land from Mbarebaki and his 20 brothers either by marriage gift, inheritance or purchase. In fact, neither the Plaintiff nor Kasigazi claim that they have ever occupied or utilized the suit land in its 26 -acre totality. A successful challenge of the Defendants' interests was dependent on the veracity of Exb. P.2 which indicates that Rukandonda aka Bikandonda aka Zikandonda was owner of the suit land and that Mbarebaki was only holding it as caretaker.

25 This court finds that Exb. P.2 is a highly questionable and unreliable document. It contains handwritten additions pointing to tampering. It is supposedly the result of a family meeting, but there are no minutes or attendance list of family members attached

to it. PW4 testified that Exb. P.2 was brought to him for his signature and stamp and this court believes him. The implication of Exb. P.2 was that several persons were to lose the land they were utilizing and no mention was made in the agreement as to how they were to be compensated for their developments on the land. An oversight that was

5 in direct contravention of Article 26 of the Constitution of Uganda.

The oral testimonies of the PW2 and PW3 who directly testified on the document could not stand against the evidence of occupation and utilization by the Defendants whose current ownership of the suit land had their roots in Mbarebaki's ownership of the suit land in his own capacity and not as a caretaker.

10 I find that I must resolve issue 1 in the negative, the suit land has never belonged to Rukandonda and Mbarebaki Atanazio was not a caretaker of the suit land but owned it in his own capacity.

### **Issues 2 and 3**

# **2. Whether Kasigazi Tukunde Milton and Kagiko Kajuni Bernard owned the suit** 15 **Kibanja and whether they passed any interest in the suit kibanja to the Plaintiff?**

## **3. Whether the defendants are trespassers on the suit kibanja.**

I find that these two must also be answered in the negative. Exb. P.2 has been discredited by this court and is not a valid document. Whatever rights it purported to bestow on Kagiko and Kasigazi as owners or vendors were non-existent. It followed 20 therefore that Defendants were not trespassers on the suit land as their claims to the land had been adequately established on a balance of probabilities.

Finally, on the issue of remedies, this court finds that the Plaintiff did not exercise due diligence prior to the purchase of the land. He should have interested himself in the contents of Exb. P.2 and engaged in a face to face interaction with all the parties named

25 in the agreement or their successors in title before concluding the sale.

If, as the Plaintiff claimed, all the neighbours were deceased, he should have exercised restraint in the purchase. In any event, the Plaintiff's failure to exercise due diligence, leaves him with no remedies against the Defendants against whom wrongdoing has not been established. The Plaintiff may, if he is so inclined, pursue the vendors for a refund

5 of the purchase price.

**In conclusion, I find that the Plaintiff failed in his duty to prove this suit against the Defendants on a balance of probabilities. I hereby dismiss this suit and order as follows;**

- 10 **1. A declaration that Rukandonda aka Bikandonda aka Zikandonda was never the owner of the suit land situate at Nyabirerema, Rutoro, Garama Cell, Katojo Parish, Rutenga sub-county, Kanungu District.** - **2. A declaration that the hand –over agreement dated 28th November 2003 is an invalid document.** - 15 **3. A declaration that the Defendants are not trespassers on the suit land but are in lawful possession of it.** - **4. Costs of the suit are awarded to the Defendants.**

20 **-------------------------------------------**

### **Olive Kazaarwe Mukwaya**

### **JUDGE**

## **19th January 2021**

Delivered by email to Counsel for the parties.