[2023] UGHCLD 123

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

### CIVIL SUIT NO. 1049 OF 2019

IOYCE NADDAMBA GALABUZI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. HON. PERSIS NAMUGANZA

2. BETTY NAKAGGWA

3. HASSAN SENGENDO alias BALAMU ::::::::::::::::::::::::::::::::::::

4. NAMUGERA KASEKENDE

5. JONATHAN SEBADDAWO

# Before: Hon. Justice Byaruhanga Jesse Rugyema

#### JUDGMENT

- In this suit, the Plaintiff Joyce **Naddamba Galabuzi** brought this action $[1]$ against the defendants jointly and severally for special and general damages for trespass and destruction of the pole materials on land comprised in **Busiro Block 489, Plot 2708** formerly part of land comprised in **Busiro Block 489, Plot 166,** a declaration that the defendants do not hold any interest in the suit land, punitive damages, interest and costs of the suit. - The Defendants were duly served with summons to file a defence and $[2]$ hearing notices several times as per the affidavits of service on record dated $2/12/2019$ and $16/12/22$ , including substituted service but none of the defendants filed a defence save for the $2^{nd}$ defendant who appeared in court on different occasions with various advocates for interlocutory


applications, M. A No.1854/2019 and M. A No.1855/2019 seeking for injunctions arising from the suit but failed and or refused to file a defence. As a result, this court directed that the suit proceeds exparte under $0.9$ r.10 & 11 CPR.

- $[3]$ It is the Plaintiff's case that at all material times, since on or about the $3/5/1978$ , she has been the registered owner of the suit land comprised in Busiro Block 489, Plot 2708 formerly comprised in Busiro Block 489, Plot 166 at Nakawuka, measuring about 25 acres before the same was subdivided into other plots leaving the residue thereof as **plot 2708**, and has held the same free of any other interest. - It is the Plaintiff's contention and averment that sometime on or about $[4]$ June 2019, the defendants teamed up together and disrupted the plaintiff's activities on the suit land. On or about the $21/11/2019$ , without any notice to her or without any lawful authority, the defendants with the help of armed personnel stormed the plaintiff's land, destroyed her materials by cutting down her poles and fence, and crops on the suit land and subsequently, on the 26/11/2019, the $2^{nd}$ - $5^{th}$ defendants entered the suit land and beat up her workers, critically injuring some of them. - $[5]$ Lastly, the Plaintiff contended that as one of the executors of the estate of her deceased husband, Gabriel Birigwa Senkandwa Galabuzi who died testate in 1981, she knows that the suit land never formed part of her late husband's estate as erroneously stated by the $2^{nd}$ defendant in the caveat. She has distributed her husband's estate and her son, the late Isaac **Ssesanga**, husband to the $2^{nd}$ defendant, got his share now comprised in **plot** 204 where the $2^{nd}$ defendant as a registered proprietor and her children stay and utilize. - It is therefore the Plaintiff's contention that none of the defendants holds $[6]$ any interest, be it a Kibanja, on the plaintiff's suit land. That the defendants' illegal and unauthorised activities on her land have denied her a conducive environment and timely income from her land and that their actions of trespass disrupting her activities in a high handed manner is irrational and unjustifiable for which she would in all, seek mesne profits.

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# **Issues for determination**

- 1. 1. Whether the defendants or any of them have any interest in the suit land. - 2. Whether the defendants trespassed on the suit land. - 3. Whether the plaintiff is entitled to the remedies sought.

# **Burden and Standard of proof**

- This being a civil matter, the Plaintiff is required to lead evidence to prove $[7]$ her case on the balance of probabilities; Ss.100-103 of the Evidence Act. See also Komo Enterprises Ltd Vs Krystalline Salt Ltd, SCCA No.08/2018 where it was held that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. In Nsubuga Vs Kavuma [1978] HCB 307, it was held that "In civil cases the burden lies on the plaintiff to prove his or her case on the balance of probabilities." - In the instant case, it follows that the plaintiff bears the burden to prove [8] that the defendants or any of them have no interest whatsoever in the suit land and therefore, she is entitled to the reliefs sought in her pleadings.

# **Determination of issues**

# Issue No.1 & 2: 1. Whether the defendant or any of them have any interest in the suit land.

- 2. Whether the defendants trespassed on the suit land. - The plaintiff adduced evidence of 2 witnesses; the Plaintiff, Joyce $[9]$ Naddamba Galabuzi herself as PW1 and Ntambi Mark Daniel (PW2), who in their bid to prove the Plaintiff's case, gave their respective evidence vide their respective Witness statements on court record both dated 9^th January 2023. - [10] The Plaintiff (**PW1**) testified that on or about the $3/5/1978$ , she became the registered proprietor of the suit land, situate at Nakawuka measuring about


- [10] The Plaintiff (**PW1**) testified that on or about the $3/5/1978$ , she became the registered proprietor of the suit land, situate at Nakawuka measuring about 25 acres which sometime in 2018, she subdivided into different plots leaving the residue thereof as **plot 2708** (see the Certificates of title, **P. Exh.1** for **plot 166** before it was subdivided and **P. Exh.2** for **plot 2708** after the subdivision). She acquired the suit property on 3/5/78 (P. Exh.1), during the lifetime of her husband, the late Gabriel Birigwa Senkandwa **Galabuzi** who died testate in 1981. It was her further evidence that at all material times since 1978, she has been using the suit land for agricultural activities for both subsistence and commercial farming but surprisingly, sometime in January 2019, out of jealousy, her daughter in law/ $2^{nd}$ defendant without any valid or legitimate claim on the land, lodged a caveat on the residue title of the suit land comprised in **Busiro Block 489**, plot 2708 and all the subdivisions emanating from the original Plot **No.166** claiming and alleging that she, the Plaintiff had fraudulently and illegally obtained the same from the estate of her deceased husband, Gabriel Birigwa Senkandwa Galabuzi, (the caveat is P. Exh.3). - [11] The Plaintiff explained that as one of the executors of the estate of her late husband, to the best of her knowledge, the suit land never formed part of the estate of her late husband, the father in law of the $2^{nd}$ defendant. - [12] Lastly, the plaintiff clarified that as one of the executors of the estate of her late husband, Gabriel Birigwa Senkandwa Galabuzi, she distributed the estate and her son, Isaac Ssesanga, the husband of the 2^nd defendant got several properties as his beneficial share which include his present home where the 2^nd defendant and her children stay. The distribution of the late Gabriel Birigwa Senkandwa Galabuzi property by executors indicating the various shares/properties of the late Isaac Ssesanga, son to the plaintiff and husband to the $2^{nd}$ defendant is **P. Exh.12**. The suit plot of land comprised in **Block 489**, **Plot 2708** formerly **plot 166** is not among the properties either owned by the deceased or distributed to Isaac Ssesanga. - [13] The evidence of the Plaintiff (PW1) was corroborated by the evidence of her son Ntambi Mark Daniel (PW2), brother to the late Ssesanga Isaac, husband to the $2^{nd}$ defendant.

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- [14] **Counsel Ambrose Tebyasa**, who represented the plaintiff on his part submitted that the plaintiff is the registered owner of the suit land as proved by the certificate of title for **Block 489, plot 166** before its subdivision (P. Exh.1) and the certificate of title for **Block 489, Plot 2708** after the subdivision and that the Plaintiff's title does not trace from her late husband, Gabriel Birigwa Senkandwa Galabuzi to suggest any possibility that it formed part of his estate for which the $2^{nd}$ defendant claim to derive her interest from. - [15] Counsel concluded that in view of the Plaintiff's uncontested evidence of ownership of the suit land, supported by proof thereof in form of the certificate of title which under **S.59 RTA** is conclusive proof of ownership, in the absence of any evidence from any of the defendants in support of any claim of interest, right or ownership, in the whole or part of the suit land, the plaintiff has proved that she is the owner of the suit land to which the defendants or any of them do not hold any interest. - [16] Indeed, though I have not had an opportunity to look at the WILL of the late Gabriel Birigwa Senkandwa Galabuzi and satisfy myself that the suit land is not among the properties left, I have had an opportunity to look at the $2^{nd}$ defendant's pleadings vide HCCS No.147/2017 against the Administrators of the estate of the late Gabriel Galabuzi Birigwa **Senkandwa** (Family Division) attached to the Affidavit in reply of the $2^{nd}$ Defendant/Respondent in Misc. Applications No.1855 & 1854 of 2019 arising from the present suit, wherein the WILL is pleaded though not attached and from those pleadings, I find that it is clear, there is no evidence that the suit property is among the properties claimed by the $2^{nd}$ defendant as forming part of the deceased's estate named in the WILL. The properties claimed in HCCS No.147/2017 as per paragraph $4(b)$ are Busiro 489, plot 1238 land at Kasuku, Mpumude, land at Dyango Bukasa and other properties that comprise the estate of the late Ssesanga Isaac in accordance with the last WILL and testament of the late Gabriel Galabuzi Birigwa Senkandwa. As I have already stated, the WILL was not attached to either these pleadings or the other pleadings referred to. $\cdot$

- [17] Again, the $2^{nd}$ defendant's caveat and the supporting affidavit (P. Exh.3), correspondences from the 1^st defendant, the then Minister of State for Lands in support of the 2^nd defendant's claim addressed to the RDC and the DPC are in regard to **plot 166** out of which **plot 2708** the suit land is derived from. This court has in the premises to focus on only the suit land (i.e, plot 2708), whether it forms part of the estate of the late Gabriel Birigwa Senkandwa Galabuzi. - [18] On examination of the Plaintiff's certificate of title of the suit land, **(P. Exh.1)** was acquired on $3/5/78$ during the lifetime of the Plaintiff's late husband Gabriel Birigwa Senkandwa Galabuzi who died testate in 1981. I find it clear that the certificate of title (P. Exh.1) does not trace from the Plaintiff's deceased husband and therefore, I am satisfied that it does not form part of her deceased husband's estate. As per John Katarikawe Vs Katwiremu & Anor [1977] HCB 187, the Plaintiff as the registered proprietor, her title is indefeasible except for fraud. In the absence of any evidence that the Plaintiff acquired the suit land through fraud, the $1^{\mbox{\tiny st}}$ issue is found in the negative. None of the defendants are found to have had any interest in the suit land. - [19] In the premises, where it has been found that none of the defendants has any interest in the suit land, the defendants' acts of forceful entry onto the suit land and disrupting the plaintiff's activities on the suit land by use of military personnel destroying her materials, crops, cutting down her poles and fence as reflected in the photographs, P. Exh.6 amount to trespass within the meaning of the authority of Lutaaya Vs Sterling Engineering Co. Ltd, SCCA No. 11/2002 where trespass to land was held to mean the unlawful entry into another person's land thereby interfering with his/her quiet possession, See also Draza Moses Vs Aderubo, HCCS No.03/2016. - [20] In the premises, the $2^{nd}$ issue is found in the affirmative. The defendants are found trespassers on the suit land.

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Issue No.3: Whether the plaintiff is entitled to the remedies sought.

### (a) A declaration of ownership of the suit land.

[21] This court having found that the defendants have no interest in the suit land as comprised in **Busiro Block 489, Plot 2708** and are trespassers on the suit land, it follows that the plaintiff being the registered proprietor of the suit land, is declared as the lawful and rightful owner of the suit land comprised in **Busiro Block 489, Plot 2708** formerly part of land comprised in Busiro Block 489, Plot 166.

#### (b)Caveat lodged on the suit land

[22] The $2^{nd}$ defendant lodged an undated caveat, (but presumably of $30/1/2019$ by virtue of certain endorsements thereon) on the suit land comprised in Busiro Block 489, Plot 2708 and all subdivisions made out of **Busiro Block 489, Plot 166.** For a caveat to be valid, a caveator must have either legal or equitable interest to be protected. In the present case, this court having found that none of the defendants have any interest in the suit land, it follows that in the absence of any other evidence as to why this caveat should not be removed. I find that it was lodged erroneously without any basis. I accordingly order for removal of the caveat lodged on the suit land comprised in **Busiro Block 489, plot 2708** and all subdivisions made out of **Busiro Block 489, plot 166.**

#### (c)General damages

[23] The award of general damages is in the discretion of court in respect of what the law presumes to be the natural and probable consequence of the defendant's act or omission, James Fredrick Nsubuga Vs A. G, HCCS **No.13/1993.** In an action for trespass if proved by the plaintiff, it is damage actionable per se, implying that there is no need for the plaintiff to prove that he or she has sustained actual damage. In this case however, the plaintiff has proved damage in form of her disrupted activities on land measuring **approximately 9.295 ha (22.968 acres)** for agriculture both subsistence and commercial, destroyed crops, materials of poles and fence, thereby inflicting upon her mental torture at her age of 90 years (she was brought in court in a wheel chair). In the premises, I accordingly award her general damages of $Ugx$ 50,000,000/= (Fifty Million Shillings Only).

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### (d)Mesne profits

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[24] Besides the Plaintiff claiming and leading evidence that the defendant disrupted her activities on the suit land, it was her further evidence that on $4/12/2019$ , the defendants' agents came and uprooted her banana plants and on $7/12/19$ planted sweet potatoes thereon (P. Exh.5.9 &10). She was accordingly deprived use of her land where she was deriving both subsistence and commercial agriculture. I accordingly award her mesne profits of $Ugx$ 6,000,000/= (Six Million Shillings Only) per year from the date of cause of action i.e. June 2009.

## (e)Punitive damages

- [25] Punitive damages are defined as those that focus on the defendant's misconduct rather than the injury suffered. They are in the nature of a fine to appease the victim and discourage revenge and warn society and court's sense of decency; Besimira Moses Vs A. G, HCCS No.143 of 2015. - [26] In the instant case, the plaintiff adduced evidence regarding the defendant's obstinate conduct, they employed armed personnel who participated in the destruction of the plaintiff's properties on the suit land on the orders of the $1^{st}$ defendant who was abusing her political office. This is reflected in the tone of letters she wrote to the RDC directing him to ensure that the $2^{nd}$ defendant accesses the suit land (P. Exh.5). Lastly, the defendants acted in contempt of interlocutory injunctive order of court issued on $28/11/2019$ (P. Exh.11) when on $4/12/2019$ , the defendants' agents uprooted banana plants (**photos P. Exh.9**) and on $7/12/2019$ , planted sweet potatoes thereon (photos P. Exh.10). I find this as a case deserving punitive damages and in the premises, I award the Plaintiff **Ugx 5,000,000/= (Five Million Shillings)** as punitive damages against each of the defendants totalling to **Ugx 25,000,000/= (Twenty-five Million** Shillings Only).

# (f)Permanent injunction

[27] In the premises that the defendants have been found trespassers on the suit land, a permanent injunction issues against each of the defendants and any person who may be claiming under any of them, from further trespass on the suit land.

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### (g) Interest and costs of the suit

- [28] The above awarded sums shall carry interest of **24% per annum** from the date of this judgment until payment in full save for mesne profits which shall carry the same interest from the date of cause of action. Since the plaintiff is the successful party, she is entitled to the cost of the suit (S.27) $PCA$ ). - [29] In sum, Judgment is given in favour of the plaintiff with costs and the following orders; - a) A declaration that the Plaintiff is the lawful and rightful owner of the suit land comprised in **Busiro Block 489, plot 2708** formerly part of land comprised in **Busiro Block 489**, plot 166. - b) Removal of caveat lodged on the suit land comprised in **Busiro Block** 489, plot 2708 and all subdivisions made out of **Busiro Block 489**, plot 166. - c) A permanent injunction against the defendants and any person who may be claiming under any of them from any other further trespass on the suit land. - d) General damages of $Ugx$ 50, 000,000/=. - e) Mesne profits of $Ugx 6,000,000/$ = per year from June 2019, the date of cause of action. - f) Punitive damages of $Ugx$ 5,000,000/= against each of the of the defendants, totalling to **Ugx 25,000,000/=.** - g) The above sum to carry interest of $24\%$ p.a from the date of judgment until payment in full save for mesne profits which shall carry interest at the same rate but from June 2019.

Dated at Kampala this ....................................

Byaruhanga Jesse Rugyema JUDGE.

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