[2023] UGHC 449

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI CIVIL SUIT NO.003 OF 2022 (FORMERLY CIVIL SUIT NO.003/2021

### 2. MWONGERA SYLIVIA::::::::::::::::::::::::::::::::::: 1. MWONGERA ANDREW :::::::::::::::::::::::::::::::::::::: MUGISHA COLLINS::::::::::

# BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE. JUDGMENT

#### **Brief facts**

The Plaintiffs, Mwongera Andrew and Mwongera Sylivia filed this suit against the defendant, Mugisha Collin for a declaration that the Defendant is a trespasser on the suit land at Nyamambo Cell, Kebisioni Town Council, Rukungiri District, a permanent injunction, general damages and costs of the suit.

It is the Plaintiffs' case that they purchased the suit land from Canon James Kamugisha and his wife, Jolly Kamugisha (both deceased now) at Ug.shs $60,000,000/$ = and the same was reduced into writing and executed by the parties on the $2^{nd}$ February, 2013 into two equal instalments of 30,000,000/= Uganda shillings. It is the plaintiffs' case that it was agreed that upon completion of the last instalment, the Plaintiffs would engage a surveyor to cut off four acres which they had purchased. It is their case that the said sellers are the parents of the defendant. That the Defendant stopped the Plaintiffs from utilizing the suit land hence this suit.

The Defendant on the other hand, refuted the Plaintiffs' claims and contended that he was not a party to the alleged land sale transaction between the Plaintiffs $\frac{1}{2}$ and his late parents, Canon James Kamugisha and Jolly Kamugisha and refuted any land sale transaction. He prayed that the suit be dismissed with costs.


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#### Representation

During hearing of this matter, the plaintiffs were represented by Mr. Mark Mwesigye of M/S Mark Mwesigye and Co. Advocates and the defendant was represented by M/S KBW Advocates. Time lines were given for parties to file written submissions but only the Plaintiffs filed and court shall take into consideration the said submissions.

At scheduling, the parties agreed upon the following issues which Court finds convenient in disposing of this matter.

- 1. Whether the Plaintiffs' suit discloses a cause of action against the Defendant? - 2. Whether the Plaintiffs' and late Canon Kamugisha and his wife Jolly Kamugisha entered into a lawful land sale transaction for the suit land? - 3. Whether the defendant is a trespasser on the suit land? - 4. What remedies are available to the parties?

#### Issue No.1: whether the plaintiffs' suit discloses a cause of action against the defendant?

The case of Auto Garage and others Vs Motokov (1971) EA 514 is a guiding authority and it is to the effect that for one to have a cause of action, the person must enjoy a right (s), the said right (s) must have been infringed and the defendant is liable.

Upon perusal of the pleadings it is clear that the point of contention is whether or not there was a land transaction between the Plaintiffs and the Defendant's late parents Canon James Kamugisha and Jolly Kamugisha. The plaintiffs produced a land sales agreement dated $2^{nd}$ February 2013, which was exhibited. It is not disputed that the Plaintiffs sought to utilize the suit land and the Defendant objected to the same, challenging the Plaintiffs' interest on the suit land on the basis of the said land transaction, hence this suit.

Court is mindful that to determine the existence of a cause of action, only a perusal of the pleadings would suffice. Therefore, in view of the pleadings of both parties and decision cited, Court finds that the Plaintiffs' suit discloses a cause of action against the Defendant. This issue is therefore answered in the affirmative.


### Issue No.2: Whether the Plaintiffs' and late Canon Kamugisha and his wife Jolly Kamugisha entered into a lawful land\_sale transaction for the suit land?

Section 101 and 102 of the Evidence Act is to the effect that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts he or she asserts must prove that those facts exist and the burden of proof lies on that person.

It is not disputed that the suit land belonged to late Kamugisha James. Location of the suit land is also not in dispute. It is also not disputed that the suit land formed part of registered land in the name of Kamugisha James (now deceased) as the proprietor.

### What is disputed is the legality of the said land transaction.

PW1 (1st plaintiff), PW2 (Emmanuel Turyamuhika Kikoni) and PW3 (Rose Mwongyera Tibayungwa) all testified and confirmed that the Plaintiffs indeed purchased the suit land.

It is interesting to note that PW3 who is the mother of the 1st Plaintiff (PW1) and the mother in-law of 2^nd Plaintiff wrote the agreement. The witnesses all confirm that the venders were elderly and sickly at the time. PW2 (Emmanuel Turyamuhika Kikoni) happens to be an uncle to the 1st Plaintiff. In effect, PW2 & PW3 are the uncle and mother to the 1st Plaintiff and father and mother in-law to the $2^{nd}$ Plaintiff

The Defendant (DW1) denied knowledge of the said transaction and alleged to have been executed by his late parents and the plaintiffs. He testified that the suit land formed part of registered land in the names of his father James Kamugisha. This was reflected in the contents of DEX1 and DEX 2 which are freehold and leasehold certificates of title respectively in the name of James Kamugisha, all in respect of land situated at Kebisoni Town Council. DW2 (Rafael Bagire), referred to in the land purchase agreement PE1 told court that as an immediate neighbor to the suit land he was not aware of such a transaction during the life time of late James and Jolly Kamugisha. The said documents were not contested by the Plaintiffs.


The Court visited the *locus in quo* on the 3^rd March, 2023. The Plaintiffs showed the Court a small portion of one big farm land of about 50 acres, as the part sold to them. There were cattle on the farm.

A perusal of the land purchase agreement dated 2^nd February, 2013 reveals that Canon James and Jolly Kamugisha sold their land measuring four acres to Andrew Mwongera and Sylivia Mwongera at consideration of Ug. Shs 15,000,000/= per acre, totaling to Ug. Shs 60,0000,000/=. It reveals that on the said date, the buyers paid Ug. Shs 30,000,000/ $=$ and were to pay the balance within one month or pay a fine of Ug. Shs 500.000/ $=$ per acre in default. It further reveals that the purchaser would upon full payment, engage a surveyor to demarcate their four acres starting from the border with Bagire, Canon James and Jolly Kamugisha back to the road leading to their family house. Both parties signed and the same was witnessed by Emmanuel Turyamuhika Kikoni and the Secretary was Mwongera Sylivia.

An addendum (acknowledgment) dated 27^th May 2013 reveals that Andrew and Slylivia Mwongera paid James Kamugisha and Jolly Kamugisha the remaining balance of Ug. Shs 30,000,000/= for the 4 acres and additionally paid Ug. Shs 2,000,000/= being a fine for the delay in paying the balance. The same was signed by the venders, James Kamugisha and Jolly Kamugisha.

Court identifies the following pitfalls with the transaction being a transaction in respect of registered land;

- 1. Possession was not taken by the Plaintiffs whether immediately or within reasonable time. According to the agreement, the last deposits were made on 27^th May, 2013. They did not do so and as such commencing this suit in 2021, about 06 years after, is not within reasonable time and no logical explanation was given. - 2. As a prudent buyer of land who parted with Ug. Shs 60,000,000/= the Plaintiffs ought to have curved out the portion they bought and commenced immediate transfer process by, for instance signing the transfer forms and mutation forms. It would be an extension of the agreement, which did not clearly identify the land being purchased. This was not done nor were transfer or mutation forms signed by the said venders tendered in court to show that they intended to sell that particular portion of the land.


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This explained why the plaintiffs failed to identify the land they bought (suit land) when court visited locus in quo. Equity would have come to the plaintiffs' aid as equity regards as done, that which ought to have been done but the Plaintiffs were not vigilant.

3. As a matter of prudence, though not a legal requirement, the Plaintiffs ought to have involved Local Council Authorities and neighbors in the transaction as witnesses for instance DW2 (Rafael Bagire) who was referred to as a neighbor in the impugned land agreement. This would have, in my opinion removed doubts about the validity of the transaction.

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- 4. The enforcement of the agreement happened about the year 2020, going by the Police Report dated 22^nd February, 2023 on Court record. It is not disputed that the late Jolly Kamugisha died on 12^th November, 2014 and Canon James Kamugisha died around 13^th February, 2015. The claim therefore came out about 5 years from the death of the venders and about 7 years from the date of the impugned land transaction. The Vendors had mature sons and daughters (potential beneficiaries to the estate)- including the Defendant, who should have been signatories or made aware of the said sale of the land. - 5. The addendum dated 12^th May, 2013 which reveals the completion of the purchase price was not witnessed. - 6. The document was witnessed by witnesses (PW2) who is an uncle to the 1st plaintiff (PW1) and father in-law of the $2^{nd}$ plaintiff. It was also witnessed by PW3 who is the mother to the 1^st plaintiff (PW1) and mother in-law to the $2^nd$ plaintiff. No other independent and impartial person witnessed the transaction yet it is not disputed by both parties that the said venders were elderly and sickly. Therefore, the transaction was not properly witnessed.

In view of the evidence on record and the submission of counsel for the plaintiff, Court finds that the land sale agreement dated 2^nd February, 2013 is devoid of a valid contract due to the following reasons:

Firstly, it failed to clearly identify the subject matter being land which the plaintiffs claimed to have bought. This is because the portion of land claimed by the Plaintiffs forms part of the Registered land yet the agreement does not specify so.


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Secondly, due diligences expected in land transactions stated above were not carried out by the plaintiffs.

Thirdly, the land transaction claims came out about 5 years after the death of Canon James Kamugisha who died on 13^th February, 2015 and the Police Report of the pass was made by the Defendant on 17^th December, 2020 when the plaintiffs sought to take possession. This is clearly reflected in the investigation report dated 22^nd February, 2023 which was not disputed by both parties. Due to passage of time it is unbelievable if there was any land transaction in respect of the

Fourthly, the document relied upon by the Plaintiffs were not duly witnessed, witnesses were all related to the Plaintiffs and there was no single independent witness.

In view of the foregoing reasons, I find issue No.2 in the negative.

# Issue No.3: Whether the Defendant is a trespasser on the suit land?

Trespass to land occurs when a person directly enters upon another person's land without permission and remains thereon, places or projects any object upon the land. (Salmond and Heuston on Law of Torts, 9^th edition (London: Sweet & Maxwell, (1987) 46).

To establish a claim in trespass one needs to prove the following;

- He or she has been in possession at the time of the defendant's entry; - There was an unauthorized/unlawful entry by the defendant; and - The entry occasioned damage to the plaintiff.

It should be noted that trespass is concerned with possessory rights and not proprietary rights. A claim, however, may be based on recovery of land or trespass to land or both.

It is not disputed by the plaintiff whether by pleadings or evidence that it is the defendant in possession of the suit land. On 3^rd March, 2023 when Court visited the "locus in quo", it found that the suit land formed part of the land belonging to the estate of late Canon James Kamugisha and the same had not been portioned off. Court also found that the Defendant was in possession of the suit land as a beneficiary to the estate of late Canon James Kamugisha.


It is therefore the Court's finding that the Plaintiffs' claim is based on a proprietary right (recovery of land) as opposed to an action on trespass to land because the Plaintiffs failed to prove possession, which is the bedrock of a claim based on trespass to land.

In effect, issue No.3 is answered in the negative.

## Issue No.4: what remedies are available to the parties?

Having answered issue No.2 and 3, which are the basis of the suit, in the negative, lifind no merit in this suit and it is dismissed.

Each party shall bear their own costs.

Delivered at Rukungiri this. .... day of $\overbrace{\text{SPP}}$ 2023. **TOM CHEMUTAI JUDGE** DEPUTY REGISTRAR HIGH COURT $\bullet$ $\star$ E COPY IKI **RUKUNGIRI** $\tilde{\mathcal{L}}$ $\overline{7}$