[2024] UGHC 193

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MUBENDE

## **CIVIL SUIT NO 028 OF 2020**

### NAMAYANJA DIANA KYAYUNE

**PLAINTIFF**

(suing through her Attorney James Kyeyune)

## **VERSUS**

- 1. NAMUYIGA ROVINSA - 2. LUWALIRA JIMMY MPALANYI - 3. BASASIRA REHEMA

#### DEFENDANTS

# BEFORE HON JUSTICE MOSES KAZIBWE KAWUMI **JUDGMENT**

The Plaintiff through her Attorney Kyeyune James filed this suit for a declaration that the defendants are trespassers on her land comprised in Singo Block 161 Plot 2898 at Mityana, a declaration that she is the lawful owner of the suit property, an eviction order, a Permanent injunction, general and punitive damages, mesne profits and costs.

The defendants contend that the Plaintiff was illegally and fraudulently registered as the proprietor of the suit property. The 1^st defendant lays claim to the suit property as the daughter of its previous owner. The 2^nd defendant claims to occupy the property on behalf of the 1^st defendant while the 3^rd defendant claims the suit property was donated to her and the Plaintiff by the late Josephine Nambavita.

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## Representation.

Xander Advocates appeared for the Plaintiff while the defendants were represented by Manzi, Mutamba Advocates & Solicitors.

Counsel filed witness statements on which the witnesses were cross examined and also filed submissions which have been taken into account by the court in rendering the decision.

## Background.

The Plaintiff is a grandchild of the late Josephine Nambayita the mother of the $1^{st}$ defendant. The $2^{nd}$ defendant is a son of the $1^{st}$ defendant while the 3^rd defendant was a niece of the late Nambayita. The late Nambayita owned the property as an unregistered interest "kibanja" and she died intestate.

The Plaintiff's claim is that the late Nambayita donated the suit land to her and she took possession in 2001. She started developing it by building rental units on a portion of it and later acquired a title to it. The 3^rd defendant kept the property as a caretaker but later left. In 2020 the defendants ejected her caretaker from an old house that was the home of the deceased and started occupying it which prompted her to file the suit.

The defendants contend that the late Nambayita donated the suit property to the Plaintiff and the 3^rd defendant. The two split the property with the Plaintiff taking the lower part on which she constructed rental units while the 3^rd defendant took the part with the late Nambayita's house.

It is further contended that the Plaintiff and the 3^rd defendant contributed towards acquisition of the title. The Plaintiff however got herself registered as the sole proprietor leaving out the 3^rd defendant.

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The 3^rd defendant later vacated the house on her share of the suit property upon being threatened by the Plaintiff. She gave it out to the $1^st$ defendant who installed her son the $2^nd$ defendant into the same after the intervention of the Police and Local leaders who evicted the caretaker who had occupied it on behalf of the Plaintiff. The defendants contend that the title was fraudulently acquired by the Plaintiff.

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In a joint scheduling memorandum filed on 5^th March 2022, Counsel agreed on two issues to be resolved by the court:-

- 1. Whether the defendants are trespassers on the suit property. - 2. Remedies available to the parties.

## Plaintiff's evidence.

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Byekwaso Antonio(PW1) is the father of the Plaintiff and a son of the late Nambayita. It was his evidence that his mother gave the suit property to the Plaintiff vide a gift deed dated 16^th September 1999 which was confirmed in the presence of the 1st defendant during the last funeral rites of the late Nambayita and no one objected to it.

PW1 stated that the Plaintiff renovated the house on the suit property and left the 3^rd defendant in it as caretaker but she abandoned it. PW1 stated that he was later arrested by Policemen who forcefully distributed part of the suit property to the 1^st defendant whose son the 2^nd defendant currently occupies the house on it left by Nambayita.

During cross examination PW1 stated that his late mother left a WILL dated 16^th August 1999 but it was not witnessed and he found it in one of the bags owned by the late one year after her demise. PW1 changed and stated that the WILL was found by his uncle KEZILONI KUSASIRA KAYAGA and a copy was kept by the Plaintiff's husband.

PW1 stated that the clan members confirmed the donation to the Plaintiff after reading the WILL but he later stated that the suit property was left to both the Plaintiff and the 3^rd defendant although the latter

left it to the Plaintiff. PW1 told court that the suit property was occupied by the 3^rd defendant as a caretaker from 2001 to 2021 when she left to settle on her own piece of land.

**MAKUBUYA DANIEL(PW2)** is a nephew to the late Nambayita and was told by the late that the suit property was for the Plaintiff because she raised her as her own child. According to PW2 the fact of the donation was confirmed during the last funeral rites. PW2 further stated that the Plaintiff constructed rentals on the property and the 3^rd defendant was appointed as the care taker though she later left.

PW2 told court that the 1^st Defendant was given her own property as a gift intervivos by her mother and he learnt of the forceful occupation of the suit property by the $2^{nd}$ defendant in 2022.

BAFIRAWALA MATAYO(PW3) corroborated the evidence of PW2 confirming that he was present when the late Nambayita donated the suit property in the presence of a one Ezekiel Wasswa but no document was executed. PW3 however stated in cross examination that he was not present when the suit property was donated to the Plaintiff and could not recall when it was done!!

PW3 told court as a clan leader he was pivotal in the celebration of the last funeral rites but no WILL was produced during the function. PW3 confirmed that he wrote a document dated 27^th October 2001 restating the contents of the WILL but maintained that the suit property was given to the Plaintiff. The document was admitted in evidence as PEX2.

It was his confirmation in re-examination that the suit property was given to the Plaintiff in his absence and did not know who the Plaintiff is. PW3 could also not remember the contents of the WILL.

Namayanja (PW4) being the Plaintiff that she was given the suit property in 1999 vide a deed of gift dated 16^th September 1999 and it was confirmed during the last funeral rites. PW4 later bought reversionary

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interest in the suit property with the knowledge of the 3^rd defendant and she constructed rentals on the same in 2013 but the 3^rd defendant started claiming a share of the same in 2015.

PW4 later learnt that the 3^rd defendant had started cultivating the land and late Nambayita's house is now occupied by the 2^nd defendant. In cross examination PW4 stated that a document confirming her ownership of the suit property was written during the last funeral rites.

PW4 further stated that the defendants took over part of the suit land in 2013 and that she would have had no problem with the 3^rd defendant constructing on the land provided it was done in writing that the land was for the Plaintiff. PW4 told court that the Power of Attorney to her husband was signed by her in 2019 when she was outside the country and further confirmed that she was given the suit land in the WILL.

KYAKUWA ELIZABETH (PW5) stated that the land was donated to the Plaintiff by her late grandmother and it was confirmed in the last funeral rites in the presence of the 1st defendant. PW5 stated in cross examination that she was present when the donation was made and a document to the effect was executed but she did not witness it.

KYEYUNE JAMES(PW6) testified that the suit property was donated to his wife the Plaintiff vide a deed of gift dated 16^th September 1999 and she later acquired registrable interest in it from the Landlord. PW6 and the Plaintiff constructed on the land but the 2^nd defendant with the help of the area local leaders forcefully evicted the caretaker.

PW6 confirmed to court that the Plaintiff did not appear before a Commissioner for Oaths when the Power of Attorney was prepared and that late Nambayita had also told him that the property belonged to the Plaintiff in 2001. PW6 told court that a document written during the last funeral rites confirmed that the suit property belonged to the Plaintiff.


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The witness denied **exhibit PEX2** claiming he has the original document that mentions only the Plaintiff as the owner of the suit property which she received as a gift from her grandmother.

## Defendants' evidence.

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Namuyiga Rovinsa(DW1) a daughter of the late Nambayita told court that her mother did not donate the suit land to anybody but the family appointed the Plaintiff and the 3^rd defendant as caretakers. Later the Plaintiff chased the 3^rd defendant off the land and the Police advised that the land be distributed between the siblings of the late Nambayita being PW1 and DW1.

According to DW1 the Plaintiff built on the share her father PW1 acquired and the 2^nd defendant occupies her share of the land. DW1 told court that none of the beneficiaries had acquired Letters of Administration to the estate.

Luwalira Jimmy (DW2) corroborated the evidence of DW1 emphasizing that the suit property was left to the Plaintiff and the 3^rd defendant by his late grandmother but the latter was ejected by the Plaintiff because she was not a biological grandchild of the deceased.

A subsequent meeting later held in 2018 resolved to have the children of the deceased being PW1 and DW1 share the property and the Police confirmed it on 30^th October 2018 after the Plaintiff had registered herself as the proprietor in July 2012.

DW2 stated that the 3^rd defendant was using the suit land from 2001 to 2018 when she left after the Police directive and he now occupies the house as the son of the $1^{st}$ defendant.

Basasira Rehema (DW3) gave evidence to the effect that the late Nambyaita orally donated the suit land to the Plaintiff and herself and she used to tell the same to different people. The Plaintiff built on her share of the land but stopped DW3 from developing her share much as

they had planted boundary marks "empanyi" demarcating the land into two portions.

A surveyor was paid by both the Plaintiff and DW3 in 2016 but the Plaintiff chased her off the land until the family distributed the land to the 1^st defendant and PW1 the children of late Nambayita and the Police enforced the decision. DW3 stated that the Plaintiff has never trespassed on the portion DW3 had acquired in the initial sharing agreement with her.

## The burden and standard of proof.

In civil cases the burden of proof lies on that person who would fail if no evidence at all were given on either side. The burden of proving a particular fact therefore lies on that person who wishes the court to believe in its existence unless the law provides that the proof of that fact shall lie on any particular person.

The standard of proof required to be met by either party seeking to discharge the legal burden is on a balance of probabilities. The evidence must carry a reasonable degree of probability but not so high as is required in a criminal case.

The facts must prove the matters beyond a mere conjecture or surmise and where the case is left in equilibrium, the court cannot incline the balance either way, the Plaintiff will have failed to discharge the burden of proof.

Sections 101 and 103 Evidence Act; Senkungu & 4 Others V Mukasa. SCCA No. 17 of 2014; Sebuliba V Cooperative Bank Ltd {1982} HCB 130.

Resolution of the 1^st issue.

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Whether the defendants are trespassers on the suit property?

The Plaintiff claims that the property was donated to her vide the 16^th September 1999 document later confirmed during the last funeral rites subsequent to which she started developing it and acquired a title to it.

It is the claim of the 1^st defendant that she is the daughter of the late Nambavita who did not donate the suit land to the Plaintiff. It is her evidence that the land was originally donated to the Plaintiff and the 3^rd defendant but later given to her and PW1 being the children of the late Nambayita.

The $2^{nd}$ defendant claims to be a licensee of the $1^{st}$ defendant on whose authority he is in possession of the land while the $3^rd$ defendant claims to have been gifted the land jointly with the Defendant.

Evidence of witnesses from both sides was fraught with contradictions and inconsistencies in regard to who was present at the time the late donated the land and to who? Whether a proper deed of gift was executed or not? What was confirmed during the last funeral rites and what the family resolution was in the meeting subsequent to the fall out between the Plaintiff and the 3^rd defendant.

While PW1 the Plaintiff's father claims to have come across a deed of gift of the property to the Plaintiff dated 16^th September 1999, the same witness told court that it was found by a one Keziloni Kayaga. PW3 claims to have been present when the late Nambayita donated the suit land to the Plaintiff but he in the same breath told court that he was not present.

PW3 who claimed to be the clan head and instrumental in the last funeral rites of the deceased told court that no WILL was read during the celebrations but the same witness stated that he wrote a document on 27^th October 2021 restating the contents of the WILL. The Plaintiff herself premises her claim on contradicting contents of documents dated 16^th September 1999 and 27^th October 2021.

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The earlier dated unwitnessed document attributed to the late Nambavita and which was variously referred to as her WILL does not amount to one under the Law. It also does not qualify to be called a Deed of Gift for want of witnesses. Even then, the document was not admitted as an exhibit by the court. The controversy surrounding its discovery by either PW1 or Keziloni Kayaga who was not called as a witness also denies it of any evidential value.

The contradictions relating to the suit land are further traceable in the evidence of the defense witnesses who did not seemingly agree as to whether the suit property belongs to both the Plaintiff and the 3^rd defendant or it forms part of the estate of the late Nambayita.

The subsequent minutes of a family meeting convened on 21^st April 2021 exhibited as PEX2 on 27^th September 2023 were denied by PW6 who filed the suit as a donee of Powers of Attorney from the Plaintiff. The document refers to a resolution to the effect that the suit land was left to both the Plaintiff and DW3. Whereas PW6 claimed to have an original set of minutes showing the Plaintiff as the sole person to whom the land was donated, he did not produce that evidence in court.

I however find it pertinent to observe that the family/clan had no legal standing from which to distribute the property which the late Nambayita did not donate to any one in her life time based on the analysis of the evidence. a tenda Sentura

In view of the highlighted contradictions in the evidence of the Plaintiff's witnesses as highlighted above, the court finds no basis for the conclusion that the suit property was donated to either the Plaintiff alone or to her and the 3^rd defendant.

A gift intervivos is the legal term that refers to a transfer or gift made during the grantor's life as opposed to that bequeathed in a WILL and which takes effect on the death of the testator.

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At common law the essential requirements of a valid gift are well settled. (i) the donor must have the capacity to donate (ii) the donor must have had the intention to make the gift or what is called the donative intent (iii) there must be absence of consideration (iv) there must be complete delivery of the gift and (v) the done must accept the gift.

Nakuya Edith V Aida Musoke & Others. Mbarara HCCS No.64/2012: Wotali Erina &A nother V Namulondo Monica HCCA No.002/2015: Kampala Archdiocese V Nabiteko Nnume Mixed Farm HCCS No.1559/2000.

Whereas Nambayita had the donative capacity and intent to pass on her land to whoever she wished, there was no evidence led to prove that there was complete delivery of the gift to any one in her life time. She died in 2001 before either the Plaintiff or the 3^rd defendant had accepted the gift and occupied/developed any portion of it to prove the alleged fact of the donation and her donative intent.

It therefore follows that the suit property belonged to the un administered estate of the late Nambayita. The subsequent intervention by the clan to order for PW1 and the $1^{\rm st}$ defendant as the direct beneficiaries to take over the land which indeed happened with Police intervention was also void in as much the beneficiaries failed to acquire Letters of Administration to effectively take over the estate.

A visit to the locus however revealed that the Plaintiff developed the lower part of the suit land with two properties separated by dividing boundary marks from the upper part on which sits the house left by the late Nambavita.

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In the observation of the court, the boundary marks have existed for about seven years. This resonates with the evidence of DW3 to the effect that the Plaintiff and herself had shared out and demarcated the land much earlier even though the gift had not been perfected as observed herein above.

The subsequent acquisition of a certificate of title for all the suit land by the Plaintiff was illegal since there had been no donation of the same to her by the late Nambavita. It was also illegal since she was not a holder of Letters of Administration to her estate to acquire registrable interest for Nambayita's unregistered interest in the land at the time she died.

Trespass to land occurs when a person directly enters upon land in possession of another without permission and remains upon the land, places or projects any object upon the land. The acquisition of the certificate of title by the Plaintiff was therefore purely intended to suffocate the other family members interest in the property which was illegal and liable to cancellation under sections 176 and 176 of the Registration of Titles Act.

The Plaintiff who was unlawfully and fraudulently registered on the suit land which belonged to the estate without acquiring Letters of Administration cannot accuse other beneficiaries in the estate to be trespassers on it. I thus find in the resolution of the 1st issue that the defendants are not trespassers on the suit land.

## Remedies available to the parties.

The defendants did not counterclaim for the cancellation of the certificate of title to the suit land. Section 33 of the Judicature Act empowers the court to make orders necessary to meet the ends of

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justice and to avoid a multiplicity of suits. The illegally acquired certificate of title cannot be left in the name of the Plaintiff as it would defeat justice and potentially lead to a multiplicity of suits. The registration of the Plaintiff shall be cancelled.

The Plaintiff's suit thus fails and I make the following declarations and orders:-

- 1. The defendants are not trespassers on the land comprised in Singo Block 161 Plot 2898 at Bamunanika Kinvunikidde, Mityana Municipality, Mityana District. - 2. The Registrar of titles is directed to cancel the fraudulently acquired registration of the title in the name of NAMAYANJA DIANA KYFYUNF and substitute the same for BYEKWASO ANTONIO and NAMUYIGA ROVINSA the direct beneficiaries in the estate of late NAMBAYITA JOSEPHINE after their acquisition of Letters of Administration to her estate. - 3. The Plaintiff shall pay $\frac{1}{2}$ of the taxed costs of the suit to the defendants. $\overline{S}$

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