[2011] UGHC 194

# THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MBALE

# CIVIL SUIT NO. 60 OF 2002

EDDY MUSIWA:::::::: ::: PLAINTIFF

# *VERSUS*

::::: DEFENDANTS 1. SALIM CHEMONGES CHEMAK 1 2. ZULIAKA REBECCA CHEPOYEKJ

## (BEFORE: THE HON. MR. JUSTICE E. K. MUHANGUZI, J.)

# JUDGEMENT

#### BACKGROUND

The plaintiffsued seeking orders for a declaration, a permanent injunction, possession, eviction, general damages, interest and costs against both defendants in respect of some land situate at Kongowo, Kaserem, Kapchorwa district.

In his plaint dated 31.07.2002 but received on court record on 06.08.2002 the plaintiff claimed he bought the suit land tom Asuman Chemweyi, the father ofthe first defendant on or about 22.05.1986. That he took possession ofthe land but aUowed the second defendant who is his sister to cultivate the land. That on 25.02.2002 the plaintiff requested the 2"' defendant who is

**1**

defendant together with her husband to vacate the land but both defendants the wife to the 1st refused to do so.

The defendants, in their joint written statement of defence dated and received on court record on 22.08.2002, generally denied the plaintiff's claim and alternatively *averred* that the purported sale agreement between the plaintiff and the late Asuman Chemweyi is null and void for contravening the provisions ofthe Illiterates (Protection) Act.

At the initial hearing, before Lady Justice Faith Mwondha on 27.05.2003, the parties agreed on three issues only for court's determination, namely:-

> *tll. Whether there was a sale ofthe land in dispute between the plaintiffand the late Asuman Chemweyi.*

2. *Ifso, 'whether the sale agreement is void.*

*3. Whether the plaintiffis entitled to any remedy Sought. "*

#### EVEDENCE

Witnesses started testifying on 27.08.2003. The plaintiff, Eddy K. Musiwa **(PW.l)** affirmed and stated he was 47 years old, a director of Uganda Media Industries Ltd. That he was resident at Plot 29 Upper Naguru East Road, Kampala. That he knew Asuman Chemweyi as a trustee mate ^s and a friend who sold the witness a piece of land situate in a village called Chemwaramu, Kongowo Parish, Kaserem Sub-County under an agreement drawn by Mulenga & Kalemera Co. Advocates. That the purchase price was 10,500,000/=. The agreement was in English language and was witnesses by Didas Nkurunziza of Mulenga & Kalemera Advocates in the presence of whom both parties signed the agreement. That the seller (Chemweyi) died in 1992 by which time the witness had paid him fully. That he occupied the land until January, 1993 when his brothers named Hussein Kabaawo and Haji Ali Cheboi were preparing the land for planting, Salim Chemonges (the son of the late Asuman Chemweyi) stopped them from preparing the land telling them that the land did not belong to the plaintiff (their brother). That the witness was

informed and he went and told his own father (Haji Yunus Musiwa) about it who advised the witness to report the matter to the Clan Chairman ofthe deceased. That he reported the matter to Salim Chemongich, the Clan Chairman in February 1993 who referred the matter to clan members that February, 1993. That the plaintiff with his father, brothers and other clan members met the deceased's clan members who were over 30 in number and he presented the sale agreement to the Chairman during the meeting. That the clan members confirmed that they knew that the plaintiff had bought the land but requested him to give the children a token of 800,000/= which he had not gone with to the meeting but paid later on another day and the clan members including the Chairman (Salim) acknowledged receipt ofthat money. That the acknowledgement was signed by the Chairman and members as well as by the plaintiff and his father. That a goat was then slaughtered and all ate it.

That when the plaintiff bought the land in 1986 he immediately took occupation of it when the late was alive and the plaintiffhad no problem at all. That after paying the 800,000/= the plaintiff continued to use the land without any problem. That in 2002 when he decided to sell the land to Patrick Chebrion he went with his (the plaintiffs) brothers and cleared the boundaries. That the witness was with his brother Haji Ali Cheboyi and his sister Zulaika Rebecca. That Patrick Chebrion made part payment of shs. 500,000/= ofthe agreed upon sum ofshs. 8,500,000/=. That Chebrion told the witness that Salim had threatened him (Chebron) not to enter the land and the witness called his brother to go and warn Salim to stop threatening the new occupant. As Salim did not stop threatening the witness he instructed M/S Esanyu & Co. Advocates to write to Salim to stop threatening and warn him that if he continued so the matter would be taken to law courts. The warning letter (copy) was tendered by consent of the defence for identification and Salim did not stop threatening and the new occupant neither occupied the land nor paid the witness the balance on the agreed amount.

That the defendant had never been on the land even up to the time of testimony. That the 2nd defendant is the one who is on the land and the witness is the one who allowed her on temporary terms in 1994 on the land after the 1st defendant had chased her. She concumbined with another man That when the witness wanted to sell the land she said she would move but she is still there.

The witness prayed court to order the 2nd defendant from occupation of the land and the ¹st defendant from disturbing the new occupant's quiet enjoyment of the land and costs ofthe suit to the witness.

Under cross examination the witness stated that he was a Moslem, that his name was Edirisa and he shortened it to Eddy. That he went to school up to "O" level. That he purchased the suit land from Chemweyi who came to offer it to him in Kampala and the two went and inspected it and returned to Kampala and made an agreement. That their joint lawyers were Mulenga & Kalemera. That the late Chemweyi was educated and knew English which he could speak and write. The witness was not sure of his (Chemweyi's) age but could estimate it at between 50 and 60 years at the time of sale of the suit land. That the father of the witness was older than Chemweyi (the seller). That when the witness went to the lawyers he was with the seller. That the first payment was by cheque and it was a bank draft while the last payment was by cash though there was no acknowledgement in writing. That he took occupation of the land without any disturbance. That the land was being used for growing seasonal crops though at the time he purchased it there were no crops there. That he did not know if the seller had got permission to sell the land from Uganda Land Commission. That he paid the shs. 800,000/= in 1993 to the Chairman in front of the family of the late Chemweyi. That there is only one document for identification. That he gave it to his Counsel. That he did not remember if he made the photocopies or not. That he had seen the difference in the photocopy but since he was not the one who made it he could not tell why it was differently written/photocopied.

That both documents are talking of paying balance of Shs. 800,000/=. That the only difference is the photocopy (not identified) confirms the payment of 800,000/= (on page 1). On the identified photocopy they are 7 whereas on the photocopy they are 8. On the photocopy there are 3 identification. On page 2 there are two. On the photocopy they are 2. The agreement is No. 12. On the photocopy he approved as sub members.

That he didn't know who she is staying with on the land at the moment. That he did not know the name of the man and other than the sister of the witness there was nobody else staying on the land That the 1st defendant has never lived on that land. That apart from the structures put there by the witness, there was no house for the defendant. That the witness built the structures in the middle of ¹⁹⁹⁴ and that the house on the land was never build by the lsl defendant for the 2nd

defendant. The workers ofthe witness are the ones who planted scanty banana plants on the land though the witness had not instructed them to do so. That the ¹st defendant is the son ofthe seller ofthe land.

In re-examination the witness stated that he had the agreement on 26.05.1986 and his claim is based on that agreement. That he had fulfilled all the requirements before the death ofthe seller. That he knew the seller before buying the land as the owner of the land and of many other lands. That the witness is not the one who drafted the agreement of 18.04.1993. By consent of defence counsel the witness tendered and court admitted in evidence the sale agreement dated 22.05.1986 as exhibit P. L

Cyprian Salim Chemongich (PW.2) stated, on oath that he knew the plaintiff. That the plaintiff came to him in February, 1993 in his (witness) capacity as Chairman of Kasama clan. That the 2nd defendant is a daughter-in-law of the witness because she is married to Salim Chemonges Chemak, son of the late Asuman Chemweyi a cousin brother of the witness. That in February, 1993 the plaintiff approached the witness and said the ¹st defendant had encroached on the land which the plaintiff had bought from the 1st defendant's father. The land is situated at Chemwaramu Village, Kongowo, by then Kaserem Sub-county, Kapchorwa district. The witness promised to handle the complaint. He convened a clan meeting on 21.02.1993 which the plaintiff and his late father, the late Haji Yunus Musiwa attended together with 13 clan members, including:-

- 1. John Chebet, who acted as meeting Secretary - 2. Stephen Salimo - 3. Chelangat Peter - 4. Satya Augustine - 5. Sayakwo Tetye, brother to Asuman Chemweyi - 6. Chemak Chemonges and many others.

That the plaintiff showed the meeting the sale agreement between him and Asuman Chemweyi and the meeting found that the plaintiffwas the right person who bought the land. The agreement was printed and drawn by Kampala advocates. None of those in the meeting doubted that the land had been sold to the plaintiff. That the meeting asked the plaintiff to assist the bereaved

family ofthe late Asuman Chemweyi with some money. The late Asuman Chemweyi had died in June, 1992.

That though the plaintiff did not like the idea of giving the money, the plaintiffs father and his team accepted to give to the family of late Asuman Chemweyi's shs. 800,000/= a month later. That on 18.04.1993 he came with his team with the shs. 800,000/= which, on behalf of the family of the late Asuman Chemweyi, the witness received and Chelangat Peter made a hand written agreement acknowledging payment. That present on that occasion were about 17 clan members including:-

- Chebet John - Satya Augustine - Sukorya Francis (step brother of 1st defendant).

That the plaintiff came with his father and his brother, Haji Kabawo Hussein. That on that day the ¹st defendant was also present but the 2nd defendant was absent. That in the presence of the plaintiff and his team the witness distributed the shs. 800,000/= between the family members of the late Asuman Chemweyi as follows:-

- Shs. 350,000/= to the widow, Jane Chemweyi and her son, the 1st defendant - Shs. 300,000/= to the 2nd widow, Annet Chemweyi - Shs. 50,000/= to George Mwanga, son ofthe late - Shs. 50,000/= to George Chemak, son ofthe late - Shs. 50,000/= was shared by clan members

## TOTAL SHS. 800,000/=

That the witness and the persons present witnessed the agreement. That among those who signed are the 1st defendant, Sukorya Francis, the two sons of the late Asuman Chemweyi and clan members such as

- Satya Augustine - Salimo Stephen - ^B Sayekwo Tetye, brother of the deceased - Chelangat Peter, who wrote the agreement and others.

The hand written agreement dated 18.04.1993 relating to payment of shs. 800,000/= was, by consent of defence Counsel, tendered and admitted in evidence as **exhibit P.2.**

The witness further stated that another copy of the same agreement was written for retention by the clan office as the other copy was for the plaintiffs records. That the contents of both copies are substantially the same except that in one copy the plaintiff stated that he had paid and in the other copy the witness stated that he acknowledged receipt ofthe shs. 800,000/=.

The second copy ofthe agreement was, by consent of defence counsel, tendered and admitted in evidence as **exhibit** P.3.

Further, the witness stated that about nine years later, early February, 2002 the 1st defendant called clan members including the witness to his (1st defendant) home. The other clan members included:- Stephen Laleyo, Stephen Salimo, John **Chebet,** Sayekwo Tetyei and others. The 1st defendant asked those clan members to support him that the land was not sold but the clan members rejected his idea. That in the same month the 1st defendant went back to the same land. That the plaintiff went again to the witness who told the plaintiff that the 1st defendant was too stubborn to the clan members for them to handle the issue again. The witness advised the plaintiffto seek a solution elsewhere and that is why and how the issue came to court.

The witness stated that he knew the land in dispute very well. That before 1993 the plaintiff and his brothers Ali Cheboi and Hussein Kabawo were the ones using the land for growing maize and beans. That when the 2nd defendant was mishandled by her husband, the 1st defendant, the plaintiff took her to live on the land between 1993 and 2000. That she occupied the plaintiffs house built of mud and wattle but roofed with iron sheets. That she occupied one part of that house and the other part was used by the plaintiff. Some of the neighbours to that land are:- Yesu, Kityo and others. Currently the land is being utilized by both defendants (husband and wife). They have joined hands to take the land and they are cultivating there maize, beans, ground nuts, etc.

Finally, this witness clarified that the late Asuman Chemweyi was his cousin and that he (Asuman Chemweyi) was educated up to primary six at Gamatui Primary School. That the witness attended the same school but was two classes behind him. That the late Asuman

Chemweyi was literate in English and Luganda languages and could only speak but not write his mother tongue, Kupsabiny, like all Sabiny people.

Under cross examination the witness (PW.2) reiterated that the plaintiff came to him in 1993 claiming that he had purchased land from the late Asuman Chemweyi. That he first saw exhibit P-1 in 1993 when the plaintiff complained that the 1st defendant had encroached on the land which the plaintiffhad bought from the father ofthe ¹st defendant. That the ¹st defendant's father had died one year earlier of a long illness at his home at Kapkwembe village, Kongowo parish, Kaserem Sub-County, Kapchorwa district, after he had earlier been hospitalized at Mbale Hospital. That he had been called and he went and visited the late Asuman Chemweyi at Mbale Hospital. That he discussed with the late Asuman Chemweyi, among other things, the land in dispute at Chemwaramu village, Kongowo Parish. That the late Asuman Chemweyi said he wanted to refund the money which the plaintiff had paid him for that land and recover the land. That the witness made some written notes ofthat discussion in English language but later handed those notes to the second wife ofAsuman Chemweyi called Anna Chemweyi.

The witness was shown a copy of a document which he identified as the one he wrote in May 1992 at Mbale Hospital when he visited the late Asuman Chemweyi there. On page ¹ point no. 3 he had written that the land at Anyango was to be divided between all his sons. That the land in dispute is one ofthe pieces ofland at Anyango and that Anyango is a person neighbouring those pieces of land. The witness stated that the late Asuman Chemweyi had two pieces of land there including the piece that was divided between the sons and another that was not so divided which is the one in dispute. The issue of refunding the plaintiffs money was not recorded in the document because, according to the witness, considering the condition the late Asuman Chemweyi was in at the time, that issue was not important. That after recording those notes in May 1992 the late Asuman Chemweyi died in early June 1992. The witness attended his burial and the ceremony ofinstalling his heir, Salim Stephen, also later deceased in July 2007.

That during the function of the last funeral rites of the late Chemweyi the clan discussed the issue ofthe disputed land but as there was no way ofraising the money the issue ofrefunding the plaintiffs money was never discussed.

That the witness was not familiar with the signature of the late Asuman Chemweyi. That he saw exhibit P.l flrst time in 1993 when the plaintiff came to him complaining about enchroanchement on the disputed land. The witness was convinced about the sale ofthe land by:-

- The sale agreement - The time the plaintiff had stayed on the land - ¹ The family did not dispute either the sale agreement or the sale itself - Family members, including the 1st defendant agreed that the land had been sold.

That is why the meeting ofthe clan asked for more money and that money was shared among the family members, including the first defendant, who received the largest share ofshs. 350,000/=

Further, the witness said that before the usual dry season ofJanuary/February 1993 the plaintiff had been cultivating maize and beans on the disputed land but that by the time he came to the witness in January/February 1993 the two defendants were utilizing the disputed land. He said it was a lie to say that the plaintiff never had possession of the land during the life time of the late Asuman Chemweyi because the plaintiff did have possession ofthat land at one timef

The witness said exhibit P.2 was about last payment of late Chemweyi's debt. That he acknowledged receipt ofshs. 800,000/= as the last payment ofChemweyi's debt. That it does not say that it was a token. That the ¹st defendant signed at the bottom of exhibit P.2 as No. 16 and other family members also signed thereon. That on exhibit P.3 the 1st defendant signed there as No. 12.

That the late Chemweyi used to sign his name on documents. That he was employed as a driver of Sebei Elgon Co-operative Union for many years and used to sign on documents. That the witness was personally a member who used to sell coffee there.

He stated that the defendants do not have a house on the disputed land. He reiterated that in 2002 the lsl defendant came to him and asked him to support him to recover the disputed land. That during that time the 1st defendant appeared normal and came to the witness with that suggestion.

That in addition to the witness the lsl defendant called to his home such other clan members as *<c3*

Stephen Laleyo

**/**

- Chelangat Peter - Satya Augustine - Martin Sumwen - Sayekwo Tetyei, deceased - Sukorya Francis

Finally, the witness said he was not hired to testify falsely and that he must respect his age, clan and the court.

Kabavvo Hussein (PW.3), a Muslim, affirmed and stated that he was 50years old. That he was a resident of Naguru, Kampala and sells building materials. That he knew the plaintiff, the 1st and 2nd defendants. That the 2nd defendant was his sister. That he knew the land in dispute, situate at Chamwaramu village, Kongowo Parish, Kaserem sub-county, Kaptanya County, Kapchorwa district, belonged to the plaintiff. That the plaintiff bought it in 1986 from the late Asuman Chemweyi. That when the plaintiff bought that land he entrusted it to the witness and his brother Cheboyi Ali who used the land for growing maize and ground nuts from .1986 up to 1993 when the 1st defendant challenged the plaintiffs ownership of the land. That the ¹st defendant then found the witness with a tractor on the land and told the witness that the land did not belong to the plaintiff which led the witness to stop the tractor and report the matter to the plaintiff who in turn reported the matter to the Clem Chairman,Chemongich Salim.

Further, that the witness went back to the disputed land in 1993 and continued growing same crops after the plaintiff and the defendants agreed. That the witness. cpntinuedj^tilizing4he\_\_land till 2002 when the 1st defendant again went and encroached on the disputed land after knowing that the plaintiffhad sold the land to one Cheborion.

Further that in 1994 the 2nd defendant had some misunderstandings with her husband (the ¹st defendant) and that both defendants separated. That the 2nd defendant went to the plaintiff and asked him where to stay. That the plaintiff allowed the 2nd defendant to occupy a two roomed semi permanent farm house on the disputed land. That the 2nd defendant occupied that house and was still occupying it to date. That the witness and his brother Cheboyi had built that house using the plaintiffs money.

Under house in cross examination the witness reiterated that he and his brother Cheboyi had built that 1992 when the late Salim Chemweyi was still alive though he died a short while after that. That it is a lie to say that the house was built by the 1st defendant for his wife, the 2nd defendant. That up till then the 2nd defendant lives in that house and that she separated from the ¹ defendant. That the 2nd defendant is half sister of the witness (same father but different mothers). That the plaintiff, Ali Cheboyi and the witness are full brothers (same mother and father). That their late father, Haji Yunusu Musiwa died in 2003.

Finally, the witness reiterated that he and his brother Ali Cheboyi had been utilizing the disputed land even before the death ofthe late Salim Chemweyi.

The fourth and last plaintiff's witness Satya Augustine (PW.4) stated on oath that he was 55 years old, a resident of Boson village, Mariny Parish, Kaserem Sub-County, Kapchorwa district and a peasant cultivator. That he knew Eddy Musiwa (the plaintiff) for about ten years. That he knew both the ¹st and 2nd defendants. That the ¹st defendant is a clansman ofthe witness and that the 2nd defendant is a wife ofthe ¹st defendant. That he knows the disputed land in Chemwaramu Village, Kawo Sub-county, Kapchorwa district.

That on 21.02.1993 the clan Chairman ofthe witness, Cyprian Chemongich, invited the witness to the home of the late Chemweyi, the 1st defendant's late father, who died in 1992. That on reaching the late Chemweyi's home the witness met the plaintiff, the plaintiff's father (Haji Musiwa), the plaintiffs brother Kabawo, Cyprian Chemongich, the clan Chairman and clan members such as Peter Chelangat, Stephen Laleyo, John Chebet and many others. That the witness was the Clan Treasurer.

That when the witness arrived the plaintiff presented the issue that he had bought the disputed land from Chemweyi, the father of the 1st defendant, but that the 1st defendant had grabbed that land. That the plaintiff presented an agreement drawn by Kampala advocates called Nkurunziza Advocates. That the agreement was read in English and interpreted into Kupsabiny. The witness was shown exhibit P.l and he confirmed that it was the one which was signed by the parties and witnessed by the advocates. That after long discussion the meeting confirmed that the plaintiff had bought the land at 10,500,000/= and that the land was 10 \*/² acres. That the meeting advised

**11**

the ¹ defendant to pull out of the land which the 1st defendant accepted and the plaintiffshook hands with the 1st defendant in front ofthe clan members who were very happy. That after that, clan members asked the plaintiffto give some assistance to the family ofthe late Chemweyi and the plaintiff accepted to pay a token of shs. 800,000/= to that family. That the plaintiff had not gone with cash then and asked for some time to pay and signed a document to that effect.

That the same Chemongich Cyprian called another clan meeting at the home of the late Chemweyi on 18.04.1993 which the witness attended with:-

- Satya Augustine - Cyprian Chemongich - Stephen Laleyo - Peter Chelangat - John Chebet - And others

That the plaintiff attended that meeting with his brother, Kabawo while the ¹st defendant, his mother and step mother (the widows of the late Chemweyi) were present. That the Chairman, Cyprian Chemongich received the shs. 800,000/= and distributed it amongst the family of the late Chemweyi as follows:-

- 350,000/= to the elder widow - 250,000 to the younger widow - 150,000/= to the son ofthe younger widow - 50,000/= to the clansmen for their lunch.

That a document of that distribution and acknowledgement of receipt and another one of payment of the money were written by John Chebet, the Secretary.

That the Chairman signed the acknowledgement of the money from Eddy Musiwa. That the witness the plaintiff, Peter Chelangat, John Chebet, Stephen Lalengo and the 1st defendant and others also signed. When the witness was shown exhibits P.2 and P.3 he positively identified them and his signature as No.6 on each ofthe exhibits.

Further, the witness stated that he owns and cultivates land neighbouring the disputed land. That he saw the plaintiff using the disputed land up to 2002 when the plaintiff reported to the clansmen that the 1st defendant had again interfered with the disputed land. That the clan members told the plaintiff that the clan dealt with that matter conclusively after which the plaintiff brought the matter to court.

The witness stated finally that he knew the late Chemweyi very well as a person who could speak and write English and who could read Kiswahili.

Under cross examination PW.4 reiterated that he is only known by the names of Satya Augustine. That the 1st defendant is commonly known as Chemonges but another name he calls himself is Chemak. That the 1st defendant is a catholic and prays from a church at Kapsukunyo near his home at Kona trading centre in Kawo sub-county. That the 2nd defendant is a sister to the plaintiff and the witness first knew her in 1986 though he knew the 1st defendant from his childhood. That the 1st defendant's father was Asuman Chemweyi who was a peasant cultivator, cattle trader and bar operator. That he was originally catholic but later converted to Islam. That the witness used to talk and eat with him and he used to assist the witness plough land. That he never wrote to the witness since both lived very close to each other. The witness never saw any document written by Asuman Chemweyi but he used to see him read letters and papers. The witness saw him write names of debtors when he operated a bar. Asuman Chemweyi also used to be a driver in Sebei Elgon Co-operative Union.

Further, that the suit land is near the land ofthe witness. That the suit land was the only piece of Asuman Chemweyi's land near that of the witness though Asuman Chemweyi owned various other pieces ofland elsewhere. That the suit land was also neighbouring land ofAnyango.

The witness was shown exhibit P.l and he identified it as the document shown to them by the plaintiff. That they read it and translated it into Kupsabiny. When shown exhibit P.2 the witness also identified it as one written by John Chebet. The witness also identified exhibit P.3 as one written by Peter Chelangat. That the witness was present when exhibits P.2 and P.3 were written and that he signed witnessing them. That he had been invited by their Clan Chairman, Cyprian Chemongich. On being shown exhibit P.2 again the witness stated that it was an acknowledgement of receipt of shs. 800,000/= by Salim Chemongich and that Salim Chemongich is the same person as Cyprian Chemongich. On being shown exhibit P.3 again the witness said that according to that document the Chairman present then was Salim Chemongich and witness No.6 was Augustine Mamadi Satya.

That in 1986 the plaintiff is the one who bought the suit land on 22.05.1986 and started using it after that. That in 1993 he was in occupation of that land but came and reported that the 1st defendant grabbed the land. That the plaintiff and his brother Kabawo were ploughing and cultivating the land. That on 21.02.1993 the witness saw both defendants on the suit land. That the 2 defendant was occupying a house built by the plaintiff and his brother Kabawo to accommodate workers originally. That afterwards he saw the 2nd defendant occupying that house.

That from 1993 the 2nd defendant occupied the house up to date. That it was the only house on that land. That the witness had never seen the 1st defendant in that house. That the 1st defendant was living in Mbale. That the witness was present and organized the burial of Chemweyi when he died. That he had never seen a document written to their Chairman by the late Chemweyi regarding his property and children. That he did not attend the last funeral rites of the late Chemweyi. In re-examination PW.4 clarified that the names Augustine Mamadi Satya against witness No.3 on exhibit P.3 were written by the Secretary who wrote all the names on that document and the witness only signed against those names. That he is not Mamadi but only Augustine Satya.

At the end of PW.4's evidence the plaintiff closed his case and the defendant sought and obtained an adjournment to prepare the defence case.

The defence subsequently called four witnesses. The first one (the 1st defendant) was Chemonges Salim (DW.l) who said he was a Christian, 45 years old, resident of Chemwaramu village, Kawowo sub-county, Tingey county, Kapchorwa district and a produce dealer by occupation. He testified on oath that he met the plaintiffin 1984 in Mbale town while the witness was a student at Mbale Seniour Secondary School and the plaintiff had an office in that town. That he, in 1989, married the 2nd defendant, a halfsister ofthe plaintiff. That he knew his fatherin-law as Yunis. That his father was called Asuman Chemweyi Augustine who died in May 1992 That his mother is the late Jane Yap Chesang who died in 2005. That his nick name is

**14**

Chemak. That ever since 1986 when his father was still alive he was on the suit land. That neither his father nor his mother ever told him that the suit land had ever been sold. On being shown exhibit P.l the witness said he first saw a photocopy of that document when he was served with summons and plaint in this case. That in 1993 when the plaintiff went to his (1st defendant's) home with elders and produced that agreement the witness was not there. That he was not aware of that meeting where the plaintiff claims that he came with this agreement and showed it to the elders. That he knew Taboloti Chemongich who testified in court as chairman of their clan in 1993. That their clan is called Kasam Sama. That he is not aware ofthe meeting the chairman called or held in 1993. That he (the witness) is a mobile man between Mbale and Kampala and Kapchorwa. The witness was shown exhibits P.2 and P.3 and he said P.2 was an agreement under which the plaintiff paid a balance of shs. 800,000/= to Salim Chemongich who is the same person as Toboloti Chemongich. That P.3 is also an agreement under which the plaintiff paid a balance of shs. 800,000/= to Salim Chemongich. That he was not present when the plaintiff paid the money on exhibits P.2 and P.3. That he did not know whether his family members ever agreed to receive or ever received the money stated in either exhibits P.2 or P.3. The witness denied ever signing or the signature on the two exhibits, though his names and a signature appear on the two exhibits among those present and who signed both exhibits. He denied him and his mother ever getting a share ofthe money or ever agreeing to leave the land or ever supporting the plaintiffs case. He stated the neighbours to the suit land to be:-

- Satya s/o Torei - Lazaro Chebet - Cheptai s/o Anyango - Cheptai s/o Kapsherisi - Arapmugamba - Chesanga Arapcherising - Another old woman who passed away

That the Satya who testified for the plaintiff was a different Satya from the one the witness mentioned as a neighbor to the disputed land. That Satya Augustine (PW.4) has no land neighbouring the disputed land.

**15**

That since 1986 he has constructed three houses on the disputed land, one iron sheet roofed and two grass thatched ones and a latrine. That he constructed the iron sheet roofed house in 1994, one of the grass thatched ones in 1993 and another one in 1994. That he also planted there a banana plantation. That his wife, children and himself occupy those houses and use one of them as a kitchen. That he also planted coffee trees there. That he would work on the land during weekends and also hire labour to help him. That Satya, son of Kurukuri built for him the iron sheet roofed house.

That he knows Ali Cheboy and Hussein Kabawo the brothers of the plaintiff. That it is a lie to say that both ofthem are the ones who constructed the iron sheet roofed house for the plaintiff on the disputed land. That it is not true that the plaintiff used that house to accommodate their workers on that land.

Further, that 40 days after the burial of his father funeral rites were held. That on that occasion Taboloti Chemongich (PW.2) was present and that on that occasion it was agreed that the disputed land be divided between the sons of my late father. That on the same occasion PW.2 produced a book in which PW.2 had recorded the disputed land among the property ofthe father of the witness at the request of and in the life time of the father of the witness. That PW.2 showed that book and left it with the witness who lost it but had made a photocopy of it before. That it is not true that the plaintiff allowed his sister, the 2nd defendant, to occupy the house on the disputed land after his sister and the witness developed misunderstandings. That the father of the witness could sign against his name but did not know how to read or write. That the witness was familiar with his signature. When shown exhibit P.l he denied that the signature on it was his father's.

todate. Further, that apart from one acre of the disputed land which his father had hired to one Asad Rabera in 1991 the witness is the only one who utilized the rest of the disputed land from 1986

Finally he said it was then up to court to decide between his brother-in-law (the plaintiff) and himselfwhom to give the suit land.

Under cross examination DW.l stated that between 1986 and 1993 he was using one acre of the disputed land after the death of his father. That his brothers Bashi Michael and George Mwanga were also using that land after the death of their father. They only used the land to cultivate maize and beans. That the land belonged to his late father and after his death the witness as the eldest son and his younger brothers had the right to use their late father's land. He denied ever seeing either the plaintiff or PW.3 on the disputed land from 1986 to date. He denied any grudge with PW.3. When shown P.2 again he said when he saw his purported signature on it he told his lawyer that it was not his signature. He again denied Satya Augustine's land bordering with the disputed land and said only his (Satya Augustine's) brother's land borders with the disputed land. He again denied presence at or awareness of the meeting held in 1993 as well as payment ofshs. 800,000/= to his family.

Further, he said that before constructing houses on the disputed land he was staying in his house at the same homestead as his father. He stated that the plaintiffs claim first came to his knowledge when summons in this suit was served upon him in 2002. That he planted the banana plantation in 1993. That during the last funeral rites of his father the disputed land was distributed among Mwanga George, Bashi Michael and himself (the witness) in equal shares. That he took one piece on one side ofthe road while George and Michael took two pieces on the other side ofthe road that passes in the middle ofthe land.

The 2nd defendant, Cheptoyek Rebecca Chemak (DW.2) took oath and stated that she was formerly Zulaika Rebecca Cheptoyek and later got married to Salim Chemak (the 1st defendant). That the plaintiffis her half brother, their late father being the late Haji Yunus Musiwa. That she got married to the 1st defendant in 1989. That all that her brother told court are total lies. That he did not allow her to live on the disputed land. That the 1st defendant together with her were cultivating the disputed land even before the death of her father-in-law. That when her father-inlaw died they constructed an iron sheet roofed house on that land and also put up two grass thatched houses there. That her father-in-law was Asuman Chemweyi. That before putting up those houses they were living in a nearby village called Cheptabobor. That she did not see the plaintiff at her father-in-law's home in 1993 claiming to have purchased the land. She therefore prayed court to do justice between the parties.

Under cross examination DW.2 stated that she started using the disputed land when she got married in April, 1989, cultivating there maize, beans and groundnuts. That in 1993 they planted banana suckers there. That the land is about 10 acres. That when they started using the land her father-in-law hired out to Rabere one acre of that land while the defendants cultivated the remaining part ofthe land. That in 1989 the defendants were cultivating ¹ acre while the rest of the land was cultivated by her father-in-law. That the plaintiff does not have land anywhere near the disputed land and has never used the disputed land. That Kabawo has never used it either. That she has never seen them on or near the disputed land and they have never cultivated it. That they could have gone to that land in her absence.

Asked about her relationship with PW.2 the witness said that she only calls PW.2 her father-inlaw by clan and does not know any other position PW.2 may have been elected to in the clan. She denied ever separating with her husband, the 1st defendant and insisted they stay together on the disputed land. That the 1st defendant constructed another homestead with an iron sheet roofed house for her co-wife at Kona Centre in Kabo village along the Kapchorwa /Mbale road. That she knows PW.4 as another of her father-in-laws by clan. That he is called Augustine Satya and does not own any land near the disputed land. That she did not know if PW.4 owns any land and thathe comes from a place called Kanolongo in a different village from that where the disputed land is situated. She named the immediate neighbours ofthe disputed land as:-

- 1. Cheptai Michael Anyango - 2. Satya Trai - 3. Cheptai Kapsheri - 4. Chebet Lazalo - 5. Chesang Kapsherisi - 6. Aramugamba

That those are their neighbours. That the banana plantation is about '/z acre and the rest of the land they use for cultivating beans, maize and groundnuts.

When asked by court to clarify the location of the house constructed by the ¹st defendant for her co-wife she stated that it is along the road and 3 miles from the disputed land. The third defence witness, Tabbera Asad (DW.3) said he was a Muslim. So he affirmed and testified that he was 60 years old, resident of Kawowo village, Kaserem Parish, Kaserem subcounty, Kapchorwa district and a cultivator by occupation.

He stated that the 1st defendant is a son of Asuman Chemweyi and the 2nd defendant is a wife to the ¹ defendant. That he came to know the 1st defendant when he rented their land at Chemwaramu village near Cheptabobor village, Konkowa parish, Kawowo sub-county, Kapchorwa district in 1991 from Chemweyi Asuman. That he rented one acre of that land. That at that time Asuman Chemweyi and the 1st defendant were cultivating that land and there were no buildings there. That now there is an iron sheet roofed house and two grass thatched houses. That he rented the land only in 1991 for one season and did not rent it again. That the distance from that land to where he lives is the same as from the court to the Clock Tower in Mbale town (which is about ¹ \*/² kilometers).

Under cross examination DW.3 said he resides in Kawowo village in Kawowo sub-county. That at one time there was a village called Kapsukunyu a long distance from Kawowo village where he resides. That the land in dispute is in Chamwaramu village which is a long distance from where the witness stays though he does not know how to estimate distances in terms ofmiles.

That in 1991 he used the disputed land to cultivate maize for one season from March to December only. That at that time Asuman Chemweyi was cultivating the rest of the land for maize using oxen ploughs and workers. That in that same year the witness also saw.both defendants cultivating a separate part of the land from Asuman Chemweyi. That they were also growing maize there. That during that time the witness knew only one neighbor called Trai who was on the Eastern side of the disputed land. The witness paid shs. 11,000/= for renting the ¹ acre ofthe disputed land. The witness stated that he did not know either PW.2 or PW.4 and that he had just seen them for the first time that day.

Finally he stated that he was telling court the truth. That he rented that land.

The fourth and last defence witness, Satya Stephen Trai **(DW.4)** said he was Christian and took oath He said he was 48 years old, resident of Chemwaramu village, Kongowo parish, Kawowo sub-county Kapchorwa district and a cultivator on his own land, at Chemwaramu village.

He stated that he knew the 1st defendant as his neighbor at Chemwaramu village and the 2nd defendant as a wife to the 1st defendant and that both defendants became his neighbours in 1992. That he did not know a person called Eddy Musiwa (the plaintiff) or Cheboy Ali or Kabawo Hussein. That he knew the late Asuman Chemweyi who was his neighbor. That his land is on the estem side of the land of the late Chemweyi while on the western side is the land of Cheptai Michael and Siron Michael and Chebet Lazaro and Cheptai Emmanuel. That Mwanga Arap Mugamba is on the eastern side also ofthe late Chemweyi's land. That on the disputed land there are banana and coffee plants, houses, latrines, granaries, cows, goats, groundnuts, maize. That 2 of the houses are grass thatched and one is iron sheet roofed. That those houses belong to the ¹st defendant in which he resides with his wife and children. That all the crops the witness mentioned are cultivated by the 1st defendant and his brothers. That the late Asuman Chemweyi and the 1st defendant had been cultivating the land and that the houses were built there around 1994 or 1993 but he was not sure ofthe date. That he did not know Augustine Satya. Pointing at PW.4 the witness stated that PW.4 comes from Kanolongo in Marim Parish and did not know his name. He denied PW.4 being his neighbor or having any land neighbouring that of the late Chemweyi next to the one ofthe witness.

The witness pointed at Tabbera Asad (DW.3) and said DW.3 was not a relative of either ¹st or 2nd defendant and that DW.3 once rented land from the late Chemweyi being part ofthe disputed land in a year he could not remember.

Under cross examination DW.4 stated that he first owned land adjacent to the disputed land when he inherited land from his late father Soyekwo Trai about 40 years earlier. That the two defendants became his neighbours in 1992 and they had been cultivating the disputed land before 1992 with the late Chemweyi. That in 1992 is when they started residing on that land. That the late Chemweyi died in a year he could not remember. That apart from the late Chemweyi the defendants and DW.3 the witness had never seen any other person cultivating the disputed land. He could not remember the one year DW.3 used the land for cultivating maize for one season. That the witness is not from the clan ofthe ¹st defendant. That he did not know PW.2 but knew PW4 as a clan relative of the ¹st defendant having land in Chemwaramu village about 300

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metres from the land of the witness, though he did not know for how long PW.4 had been using that land.

Further, that the banana plantation ofthe defendants on the disputed land is about !4 acre but he could not remember when it was planted. He could not also recall when the iron sheet roofed house was built or when the grass thatched houses were built.

That the ¹ defendant's brothers who also used the land in dispute are Bashi Michael and Mwanga George. That they started using the land after about one year from the death of their father to date, cultivating maize and beans only on that land. That their part is separated from that ofthe defendants by a road. He could not recall the name ofthe village where DW.3 comes from but it is about *^Y²* kilometer away from the home ofthe witness adjacent to the disputed land at Chemwaramu village. That the disputed land is about 10 acres. That on the western side ofthe disputed land are:

- 1. Cheptai Michael - 2. Siron Michael - 3. Chebet Lazaro and only those 3 people

On the eastern side are:-

1. Myself(the witness)

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2. Mwanga Arap Mugamba, only those two.

On other sides are:- Cheptai Emmanuel only.

In re-examination the witness clarified that the land owned by PW.4 in Chemwaramu village is a long distance away from that ofthe witness and is separated from the disputed land by two other pieces of land in between owned by Cheptai Emmanuel and Kapkwimba whose other names the witness forgot.

At the end of the testimony of DW.4 the defence case was closed also. Court then directed the parties to file and serve upon each other written submissions and reserved judgment on notice. The parties duly filed their written submissions but judgment could not be ready for unusually

long time because the trial judge was first pre occupied in a criminal session and then immediately after that in chairing a Judicial Commission ofInquiry that is still ongoing.

### LAW, PRACTICE AND PROCEDURE

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However, I have now taken apart some time to prepare this judgment. I have carefully scrutinized the evidence adduced by both parties. I have also considered the respective submissions for the parties. In doing so I have directed my mind to the law, practice and procedure. Generally the burden of proof of any allegation lies upon the party that makes the allegation (Ss. 101 and 102 of Evidence Act). In civil cases the standard of proof is on the balance of probabilities.

The system of pleading is necessary in litigation. It operates to define and deliver with precision and clarity the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. A party is expected and bound to prove the case as alleged by him/her and as covered in the issues framed. He/she will not be allowed at the trial to change his/her case or set up a case inconsistent with what he/she alleged in his/her pleadings except by way of amendment (Interfreight Forwarders (IT) Ltd. Vs. East African Development Bank, [1994-95] HCB 54.

Issue No. 1: whether there was a sale of the suit land between the late Asuman Chemweyi and the plaintiff. For the plaintiff the claim ofthe plaintiff (PW.l) is largely based on a written sale agreement dated 22.05.1986 between him and Asuman Chemweyi. That agreement was annexed to his plaint as *"A"* and exhibited in court at the hearing as exhibit P.l. By the provisions of that agreement the suit land was sold to the plaintiff by Asuman Chemweyi at an agreed purchase price ofshs. 10,500,000/=. Asuman Chemweyi (the seller) under that agreement acknowledged receipt of shs. 6,477,856/= and shs. 1,822,144/= by executing that agreement and the balance ofshs. 2,200,000/= was payable within 30 days from execution ofthat agreement (by 22 06 1986). In his testimony the plaintiffstated that he paid that balance ofshs. 2,200,000/= and occupied the land that same year. The plaintiff was cross examined at length but remained consistent and unshaken. His evidence was supported by that of Cyprian Salim Chemongich (PW 2) a cousin and Clan Chairman of Asuman Chemweyi (the father ofthe ¹st defendant). That

further corroborated by that of Hussein Kabawo (PW.3) and Satya Augustine evidence was (PW.4).

The evidence for the defence on the other hand as given by the first defendant, Salim Chemonges Chemak (DW.l), Cheptoyek Rebecca Chemak, the second defendant (DW.2), Rabbera Asad **(DW.3)** and Satya Stephen Trai (DW.4) largely dealt with occupation and neighbours ofthe suit land as opposed to any sale of the suit land or not. The first defendant who appeared to be the main challenger of the sale of the suit land stated that neither his late father nor his mother ever told him that the suit land was ever sold. He claimed that he, was a mobile trader between Kapchorwa, Mbale and Kampala and was not even aware of any clan meeting that was said to have taken place at his father's home on 18.04.1993 concerning the sale of the suit land. This defendant at the same time testified largely on occupation of the suit land by him, his wife (the 2nd defendant) and his children. All defence witnesses stated that the suit land belonged to Asuman Chemweyi, deceased father of the ¹st defendant. They did not show that the 1st defendant ever owned that land, apart from occupying and cultivating it at certain times.

The denials by DW.l of both his signatures on P.2 and P.3 as well as his late father's signature on P.l are not enough to show that those documents were forged because it was incumbent upon the defendants to plead and prove that those documents were so forged. That was not done. Had the defendants wished court to find forgery in those documents they ought to have called some of the people who witnessed those documents, most of whom were said to be their Clan and family members. The 1st defendant admitted having been served those documents when served with summons to enter defence which was a long time before the trial which gave him enough time and opportunity to challenge those documents but he did not utilize that time and opportunity for reasons best known to him. To make matters worse for the defendants their other relatives such as PW.2, PW.3 and PW.4 supported the plaintiffs case.

Upon careful consideration of evidence on both sides I find as credible and uncontroverted and consequently accept the evidence of PW.l that the late Asuman Chemweyi found him at Kampala offered to him the suit land for sale which both parties went and inspected at Kapchorwa after which the parties returned to Kampala and concluded a sale agreement (Exhibit P 1) I find further that the evidence of PW.l that he paid all the purchase price in full before the death of Asuman Chemweyi credible and uncontroverted and consequently accept that evidence

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that Asuman Chemweyi was an illiterate of any sort, attempted to show that Asuman Chemweyi was not literate in the English language in which the agreement was written.

Nevertheless, it was shown by PW.l a long time acquaintance ofAsuman Chemweyi and PW.2, a cousin and schoolmate of the late Asuman Chemweyi that the late Chemweyi was able to speak and write English language, he having gone up to primary six at Gamatui Primary School with PW.2. Further that the late Asuman Chemweyi was a businessman, a driver at one time of Sebei Elgon Co-operative Union who used to sign his name on many documents.

For the defence, all that DW.l stated on this issue was that his father (Asuman Chemweyi) could sign against his name but did not know how to read or write without more. The 2nd defendant (DW.2) said nothing about the literacy or otherwise of the late Asuman Chemweyi, neither did Rabbera Asad (DW.3) nor did Satya Stephen Trai (DW.4).

The issue of literacy of Asuman Chemweyi was not directly (if at all) raised by the pleadings. It was only remotely implied in the alternative plea in paragraph 7 of the written statement of defence in these words:-

"7. *In the alternative and withoutprejudice*

*to theforegoing the defendant aver that the*

*purported sale agreement between the*

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*plaintiffand the late Asuman Chemweyi is*

*nul and void as it contravenes the provisions*

*ofthe ILLITERATES (PROTECTION) ACT. "*

Nevertheless, on the balance of probability I find and hold that the defence evidence was too week and unsupported to discharge the burden of proof that lay on the defendants who impliedly alleged illiteracy on late Asuman Chemweyi's part. On the contrary the plaintiffs witnesses (PW.l and PW.2) disproved that allegation.

Therefore I find and hold that no sufficient evidence was adduced by the defendants to show that the agreement ofsale contravened the provisions ofthe illiterates (protection) Act.

## Issue No.3: Remedies available to the plaintiff

Having held on issue No.l that there was a valid sale of the suit land between the plaintiff and the late Asuman Chemweyi I have no hesitation in awarding the plaintiff all the remedies he sought, namely:- a declaration, a permanent injunction, possession, eviction, general damages, interest and costs against the defendants.

I need only say something more about the *quantum* of damages to be awarded and the interest thereon. I have taken into consideration the cost ofthe land which was shs. 10,500,000/= in 1986 and the period the defendants have denied the plaintiff use ofthat land which is from 2002 to date, a period of about 9 years. The plaintiff asked for shs. 45,000,000/= but in my view that is a bit on the high side. I will award him shs. 35,000,000/= general damages which I consider adequate to atone the wrong committed against him by the defendants.

The plaintiff also asked for interest at the rate of 25% per year from the date offiling the suit till payment in full. No justification was shown for that rate of interest or why it should relate back to the date of filing the suit instead ofthe bench mark date ofjudgment for general damages awards. Therefore I reject that rate and the effective date sought. Instead I will award the plaintiff interest at the rate of 15% per annum on the general damages from the date of delivery of this judgment till payment in full. I also award the plaintiff costs ofthis suit.

In conclusion I hereby pass judgment against the defendants in favour of the plaintiff and make the following orders:-

- (a) A declaration that the suit land belongs to the plaintiff. - (b) A permanent injunction restraining the defendants, their children, agents, workers and assignees from entering on or dealing with the suit land. - (c) Possession ofthe suit land by the plaintiff - (d) An eviction order against the defendants. - (e) General damages of Sh. 35,000,000/= - (f) Interest at 15% per annum on (e) from the date of delivery ofthisjudgment till payment in full. - (g) Costs ofthe suit.

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**XKMuhanguzi**

JUDGE **"AR** *,*

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## **^I 0 ^I**

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE HCCS No. 60 of 2002**

eddy musiwa **PLAINTIFF**

### **VERSUS**

- **1. SALIM CHEMONGES CHEMAK** - **DEFENDANTS 2. ZULIAKA REBECCA CHEPTOEKk**

### **DECREE IN ORIGINAL SUIT**

**THIS SUIT** coming this day for final disposal before **JUSTICE E. K MUHANGUZI** in the presence of Ms. Kaibei Cherotich on brief for Dagira Suza ESQ counsel for the defendants and in the absence of all the parties and plaintiffs counsel

**IT IS HEREBY** decreed and ordered as follows;

- (i) Declaration that the suit land belongs to the plaintiff. - (ii) Permanent injunction restraining the defendants, their children, agents, workers and assignees from entering or from dealing with the suit land. - (iii) The defendants give vacant possession of the suit land to the plaintiff. - (iv) Eviction order against the defendants in respect of agricultural land in Kongowo, Kaserem, Kapchorwa District. - Defendants to pay general damages of Shs. 35,000,000/= to the Plaintiff. (v) - (vi) till payment in full. Defendant to pay interest on (ii) alcove at 15% p.a from date of judgment

Defendant to pay full costs of this ^s (vii) Dated this 30th day of March 2011. DEPUT:

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*Extracted by: DAGIRA & COMPANY, ADVOCATES, --r—T PLOT 44/46 REPUBLIC STREET, P. O Box 1984, MBALE, (Word Count 1701*