[2024] UGHCLD 275

# THE REPUBLIC OF UGANDA

## IN THE HIGHCOURT OF UGANDA AT KAMPALA

### LAND DIVISION

# CIVIL SUIT NO. 0666 OF 2022

# 5 NAMBAJJWE REHEMA :::::::::::::::::::::::::::::::::::::::::1ST PLAINTIFF

# NAKAKANDE HALIMA zND PLAINTIFF

### VERSUS

# SEMANDA GODFREY DEFENDANT BEFORE. HON. LADY JUSTICE ELIZABETH JANE ALIVIDZA ¹⁰ JUDGMENT

### REPESENTATTON

The Plaintiffs were represented by Counsel Ntanda Umar. The Defendant was unrepresented.

### INTRODUCTION

15 The Plaintiffs'brought this suit against the Defendant for declaration that the Defendant is a trespasser on the Plaintiffs'land located at Katuuso village, Kakande Local council 1, Buziga Parish, Makindye Division and an order of eviction against the Defendant, general damages and costs.

# 20 BACKGROUND

The pleadings reveal that the Plaintiffs' are biological children of the late Haji Abdnoor Kakande Gava. On the 23'a December 2005, the

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administrators of the estate of the late Haji Abdnoor Kakande Gava allocated the suit land to the Plaintiffs and other beneficiaries.

25 The Plaintiffs'were allocated plots A and G, one of the beneficranes Ahmed L. S Kakande a brother to the Plaintiffs was allocated plots H and I next to the suit land by the administrators of the late Abdnoor Kakande Gava.

30 35 ln2OO8l2OO9 Ahmed Kakande sold his plot to Kassaga Hassan who in turn sold his interest to the Defendant on 26Lh August 2OO9. ln February 20 1 1, the Defendant started claiming ownership of the land owned by the Plaintiffs', outside what was sold to him by the said Kasagga Hussien. The Defendant also started ferrying construction materials to the suit land with the intention of commencing construction.

The Plaintiffs'contend that they reported the matter to the area local authorities who escalated the same to the office of the President. They also reported to the National Chairman land task force and the Buganda land board but there was no action taken by the respective oflices. That the matter was also forwarded to the Resident City Commissioner when all the negotiations failed.

That the Defendant later filed CS No. 269 of 2Ol2 at Makindye Chief Magistrate's Court against the Plaintiffs for trespass and an order of eviction. He abandoned the suit and it was dismissed for want of prosecution. The Plaintiffs as lawful owners started the process of

45 having their interests registered with Buganda Land board in 2006.

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The Plaintiffs aver that the defendant does not have any right to take the suit land.

This case proceeded exparte. The Defendant did not file a written statement of defence to the suit despite being served. After the case 50 had been heard and the Court visited the locus quo, the Defendant later filed Misc. App No. 3311 of 2023 seeking leave to file his defence which Application was granted. Court ordered the Defendant to pay UGX 5,000,000 by the $30^{th}/04/2024$ as security of costs and file a written statement of defence. By time of starting to write this 55 judgment, the Defendant had not heed to Court's instructions.

#### **ISSUES**

The Plaintiff formulated the following issues for determination by the Court.

1. Whether the Plaintiffs are the rightful owners of the suit land?

2. Whether the defendant trespassed on the suit land?

3. What remedies are available?

During trial, the Plaintiffs adduced the evidence of four witness. PW1 Nambajjwe Rehema, PW2 Nakakande Halim, PW3 Dr. Buwembo Kakande Badru and PW4 Segawa Joseph.

Court visited locus in quo on the $5/10/2023$ , PW1 and PW3 testified. The Court observed that the witnesses were not sure of the exact size and boundaries since the boundaries had been re-marked and the original plots as by PEX1 G and H are neighboring.

70 Court a-lso observed that the witnesses had an idea of where the Kibanja passed however the boundary points kept shifting.

### BURDEN OF'PROOF

The Plaintiff has a burden of proof to adduce evidence on the balance of probabilities, that the Defendant is a trespasser on the suit land. Under Sections 101 ond 102 of the Euidence Acl. The burden of proof rests on whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which or she asserts to prove that those facts exist or who would fail if no evidence is adduced at all.

80 85 Section 103 of the Euidence Act on the other hand places the evidential burden on any party who alleges the existence of a set facts to prove such facts. It provides thus: "The burden of proof as to ang partianlar fact lies on that person u.tho uishes the court to belieue in its existence, unless it is prouided bg ang laut that the proof of that fact shall lie on anA particular person"

It is the general rule is that he or she who asserts must prove and the burden of proof rests on the person who must fail if no evidence at atl is given on either side. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on a balance of probabilities.

ln Miller V Minister of Pensions t194712 ALL ER 372 Lord Dennint> stated: "That the degree is u.tell settled. It must carrA a reasonable degree of probabilitg but not too high as is required in a criminal case.

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95 If the euidence is such that the tribunal can sag, we think it more probable than not, the burden of proof is discharged but if the probabilities are equal, it is not. "

### RESOLUTION

Counsel for the Plaintiff filed written submissions that have been taken into consideration in determining this suit.

lssue l: Whether the Plaintiffs qre the rightful oLuners of the suit land? 100

PW1 in her witness statement testified that the administrators of the estate of the late Hajji Abdnoor Kakande Gava a-llocated plot A and G to herself and the 2"a Plaintiff and they took immediate possession. That they a-lso allocated their brother Ahmed Lule Sekitto Kakande a

plot next to the suit land. 105

> PW3 Dr. Buwembo Kakande Badru one of the administrators of the estate of the late Hajji Abdnoor Kakande Gava testified that plots A and G were allocated to the Plaintiffs jointly. That the Plaintiffs took immediate possession of the two at the same time until when the

Defendant forcefully evicted them and took over plot "G" referred to as the suit land. 110

PW4 Segawa Joseph in his witness statement testified that the Defendant acknowledged that he trespassed in the Plaintiffs' land and agreed to compensate them for the suit land. That there was a

disagreement on the amount of compensation that the Plaintiffs asked for UGX 30,000,000. That the Defendant was willing to offer 115

UGX 10,O00,000. That the Plaintiffs reduced to UGX 25,000,000 but the Defendant refused to attend further meetings.

120 According to PEX 16, it is clear that on the 29th July 20O4, letters of administration to the estate of the late Hajji Abdnoor Kakande were granted to Dr. B. Buwembo Kakande, Ahmed Kakande, Mohammed K. Kakande, Hajjat Nuriat N. Kakande and Moses K. Gava.

125 Furthermore, by a document PEX1 dated 23.d December 20O5, the administrators of the estate of the late Hajji Abdnooor Kakande confirmed that the Bibanjas A and G belong to the Plaintiffs and that they were to identify themselves with the document to the Buganda land board for recognition. The Plaintiffs adduced into evidence PEX9 certificate of occupancy from the Buganda land Board that shows that they were gifted the Kibanja in 2003.

130 135 According to PEX2, Ahmed L. S. Kakande ,the Plaintiffs'brother wrote ^aletter dated L9 l02 l2oll addressed to the chairman and committee of Katussu L. C 1 alleging trespass on the Plaintiffs'plot. According to the letter, he stated that he sold his plot in 2OO8 l2OO9 to Mr. Kassaga Hussien who transferred his interest to Semanda Godfrey (the Defendant) before completing the purchasing price. He asked the

committee to intervene and stop the Defendant from constructing on the plot and that he had liaised with Kassaga Hussien who declined to having sold the plot to the Defendant.

The above letter was corroborated by the evidence of PW5 Kalungi Magezi Sadat, the vice chairperson of Kakande Zone who testified 140

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that Ahmed Lule Sekitto Kakande wrote a letter confirming that the suit land was never formed part of what he sold to Kasaga Hussien.

The Plaintiffs'adduced PEX13 letter dated 03'd January 2OO7 frorn Katuuso Local Council confirming that t}:e 2"d Plaintiff as the rightful owner of the plot that crosses between Katera at the lower side and Nuruati Nabisere at the top.

The Plaintiffs'also adduced into evidence PEX4 sale agreement dated 6lO3 l2ol1 wherein the Defendant states that the plot was sold by Mr. Ahmed Kakande to Kassaga Hussein that he paid UGX 10,000,000 as a debt that he had with Mr. Kassaga Hussein for the plot and had an outstanding balance of UGX 1,20O,0O0.

It is not in dispute that the Defendant bought his plot that had belonged to Ahmed Kakande the Plaintiffs'brother. From PEXI copy of the allocation letter of the estate of the late Hajji Abdnoor Kakande Gava dated 23.d December 2005, Ahmed Kakande was allocated plot H and I, and the Plaintiffs were allocated plots A and G respectively. According to PX3 agreement dated2lS/2O09, the Defendant bought a Kibanja from Kasaga Hussein measuring 56/8O feet.

160 In his letter PEX2 to the LC I Committee, Ahmed Kakande does not dispute the fact that plots A and G belong to the Plaintiffs. It is clear that the Defendant derived his interest in plot "I" from the Plaintiffs' brother who had sold his plot to Kassaga Hussein.

During locus, this Court observed that the witnesses were not sure of the exact size and boundaries since the boundary plants were

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- 165 removed. Court also observed that the original plots as per PEX1 G and H are neighboring. From the sketch map drawn, the Defendant built two houses on the plot that are occupied by tenants. This Court noted that the disputed plot G is in front of the houses and neighbors plot H. - t70 It is my finding that the Plaintiffs have proved that they are the rightful owners of the suit land having been allocated the same by the administrators of the estate of the late Hajji Abdnoor Kakande Gava.

This issue is answered in the affirmative.

⁷⁷⁵ Issue 2; Whether the Defendant trespassed on the suit land?

Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere, with another person's lardul possession of that land. (See the case of Justine E. M. N Lutaaua uersus Stirlinq Ciuil Enq. Ciu. Appeal No.

¹⁸⁰ 11 of 20021

Furthermore in Sheik Muhammed Luboua uersus Kitara Enterprises Ltd C. A No.4 of 198 the East African Court of Appeal noted that;

'in order to proue the alleged trespass, it utas inanmbent on the appellant to proue that the disputed land belonged to him, that the respondent had entered upon that land and that the entry uas unlawful in that it utas made without his permission or that the respondent had no claim or right or interest in the land'. I note that PEX 1 is a copy of an allocation letter from the administrators of the estate of the late Hajji Abdnoor Kakande Gava. It shows that the Plaintiffs'acquired plots A and G as their share from the estate.

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PEX1 also shows that the Plaintiffs' brother Ahmed Kakande acquired plots H and I from the estate. It is the Plaintiffs'contention that the Defendant started layrng claim on the portion of land owned by the Plaintiffs'outside what was sold to him by Kassaga Hussein.

200 The evidence adduced by the Plaintiffs' shows that the Defendant acquired his interest from Kassaga Hussein who had bought land from Ahmed Kakande the Plaintiffs'brother. The Plaintiffs'adduced PEX2 a letter written by Ahmed Kakande addressed to the chairman committee stating that he had sold his plot to Kassaga Hussein in about 2OO8|2OO9.

During locus visit, PW3 Dr Buwembo Kakande Badru one of the administrators of the estate of the late Hajji Abdnoor Kakande Gava testified that they left a plot "I" vacant and it was given to Ahmed. That ptot G was given to the Plaintiffs and that it was undeveloped.

Court observed that the witnesses were not sure of the exact size and boundaries since the boundary plants were removed and that the original plots as by PEX1 G and H are neighboring. I noted that the witnesses had an idea of where the Kibanja passed, and the boundary points kept shifting.

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In the PEX4 sale agreement dated 6/03 l2OIl, the Defendant paid UGX 1,000,O00 as a debt he had with Kassaga Hussein about a plot that was sold to Kassaga Hussein by Kakande Ahmed. The money was received and Kakande Ahmed received the money. A sketch map was drawn showing that it measured 52ft; the road on the left, Seeka 1rusufu and Hajati (mama Aisha) on the lower side, Ekanisa ya ba-lokole on the right and musawo on the upper side.

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From PEX9 the certificate of occupancy, the Plaintiffs' plot was measured 50ft by 1OOft, with development of a house, the neighbors include Mulondo Dan on the left, a road on the right and at the front, then Nakamanya behind.

It is my finding that the Plaintiffs have proved ownership of plots G and A. it is also clear from PEX4, sale agreement, that the Defendant bought land from Kassaga Hussien who originally bought plots from Ahmed Kakande; the Plaintiffs brother. According to PEX1, it is stated that the Plaintiffs were allocated plots A and G and Ahmed Kakande was allocated plots H and I by the administrators.

230 Therefore to prove unlawful entry, the Plaintiffs contend that the Defendant laid claim on land outside what was sold to him by Kassaga Hussein. The Plaintiffs adduced letter PEX 2 written by their brother Ahmed Kakande addressed to the local council chairperson confirming that the suit land belongs to the Plaintiffs, and that Kassaga Hussein declined to having sold the suit land to the Defendant. (+

- 235 The Plaintiffs also adduced PEX4 sale agreements which were signed by the Defendant and Kassaga Hussein, the sa-le agreements do not clearly show the measurements of the plot bought by the Defendant. The sa-le agreement dated 6/03 l2oll states that Ahmed Kakande sold a plot to Kassaga Hussein. - 240 245 PEXS letter dated 18/ 05 I 2Ol1 from the office of the President invited the family of the late Haji Abdur Kakande Gava and the Defendant for a field working and fact finding tour. On the ²⁶lO5 l2ol1, only the Plaintiffs and some of the administrators attended the meeting held on 2610512011. It was found that the Defendant's plot measures 69ft and that he had encroached by 28.6 ft.

250 255 PW4 Ssegawa Joseph the area local council one chairperson of Katusso village testified that there were negotiations that took place between both parties and that the Defendant wanted to pay the Plaintiffs' so that they settle the matter. That however they did not accept what was offered. In his witness statement, he stated that they invited the Defendant and informed him of the Plaintiffs' complaint. That he acknowledged that he trespassed in the Plaintiffs' land and agreed to compensate them. That there was a disagreement on the amount of compensation. That whereas the Plaintiffs' asked for UGX 3O,0OO,O00, the Defendant was only willing to offer UGX 1O,00O,0OO which they rejected.

From the evidence adduced on record, it is my finding that the Defendant bought land from Kassaga Hussein who obtained his ⁷⁷u(

- t6u interest from Ahmed Kakande. It is a proven fact that Ahmed Kakande only had interest in plots H and I that were allocated to him by the administrators of the estate of the late Hajji Abnoor Kakande Gava. Therefore, the Defendant only obtained his interest in plots H and I and not A and G. - 26s It is my conclusion that on a balance of probabilities, the Plaintiffs have proved that the Defendant trespassed on the suit land by unlawfully entering on to their kibanja

lssue 3 What remedies are auailable?

The Plaintiffs are seeking the following remedies:

- 270 1. A declaration that the Plaintiffs are the lau{ul owners of the suit land. - ii. A declaration that Defendant is a trespasser on the suit lald. - iii. An order for permanent injunction restraining the Defendant or any person claiming from him from trespassing on, alienating, transferring and or in any way dea-ling in the suit land. - iv. The Defendant vacates andlor is evicted from the suit land. - v. The structures erected on the suit land be demolished. - vi. The Defendant pays general damages of UGX 55,O0O,00O for the period he has illegally occupied the land. - 280 vii. Interest on general damages at a rate of 35%. - viii. Costs.

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I shall consider each remedy separately

A declaration that the Plaintiffs are the lawful ou)ners of the suit land. This Court has found that the Plaintiffs are rightful owner of the suit property that forms part of plot "G". Therefore, ^a declaration is issued accordingly.

A declaration that Defendant is a trespasser on the suit land. This Court has also found that the Defendant is a trespasser on the suit land. Therefore, a declaration is issued accordingly.

290 295 An order for permanent injunction restraining the Defendant or any person claiming from him from trespassing oft, alienating, transferring qnd or in ang utag dealing in the suit land. Since this Court has found that the suit land belongs to the Plaintiffs and that the Defendant is a trespasser, a permanent injunction to issue accordingly.

> The Defendant uacates and/ or is euicted from the suit land. The Court found that the Defendant had trespassed on the Plaintiffs' plot. That exact extent of the encroachment is not proven to satisfaction of the Court in terms of exact measurement. What is clear is that the Defendant encroached on "Plot G" as per PEX ¹ allocation list.

> The structures erected on the suit land be demolished. I noted when visiting the locus in quo that due to natural changes, it was impossible to exactly pinpoint the extent of the encroachment. What is clear is that it appea-rs that the whole suit land was taken

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over. Therefore, any structures constructed on the suit land be destroyed.

Since the evidence indicates that the Defendant had indicated that he was willing to compensate the Plaintiffs for the encroachment, then parties can pursue negotiations. Failure to resolve this amicably, then illegal structures on the Plaintiffs' plot be demolished.

The Defendant pags general damages of UGX 55,OO0,O00 for the peiod he has illegallg occupied the land and interest on general damages at a rate of 35o/o: The basis for the Plaintiffs' claim for general damages, is premised on the loss of use and enjoyment of its land. Counsel for the Plaintiffs; submitted that the Plaintiffs' testified that they would have earned UGX 800,000 from the renta-ls they had planned to construct on the suit land. That they have been denied from having this investment.

I am aware that general damages are awarded at Court's discretion. They are compensatory in nature and are awarded to a Plaintiff due to the wrongful act(s) of the Defendant with the aim of putting the Plaintiff in the position she/he would have been, if they had not suffered the wrong.

I am also awa-re that general damages are awarded neither to punish the Defendant nor confer a windfall on the Plaintiff. It is not also meant to punish the claimant and allow the Defendant to go without repairing the actual loss caused to the claimant. See

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## 330 the case of Ludia Muqambe u Kauita James & Another HCCS I/o. 339 of 2O2O.

The Plaintiffs'rights were invaded and were deprived of the use and enjol.rnent of their share in the property of the late Hajji Abdnoor Kakande Gava. The Plaintiffs'plans to construct on the suit land is catered for under the inconvenience that was caused by the Defendant.

In this case I award general damages of UGX 20,OOO,OO0 for the inconvenience caused by the Defendant. I also award interest of 25ok per annum for date of delivery of judgment until paS.,rnent in full.

340 Cosf: Costs follow the event, the Plaintiffs' being successful are awarded costs of this suit.

## CONCLUSION

I find in favour of the Plaintiff and issue the following orders;

- I. A declaration that the Plaintiffs are the lawful owners of the suit land. - 2. A declaration that Defendant is a trespasser on the suit 1and..

3. An order for permanent injunction restraining the Defendant or any person claiming from him from trespassing on, alienating, transferring and or in any way dealing in the suit land. The Defendant vacates andlor is evicted from the suit land. The Court found that the Defendant had trespassed on the Plaintiffs'pIot. That exact extent of the encroachment is not proven to satisfaction

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of the Court in terms of exact measurement. However, the Plot "G" that was allocated to the Plaintiffs be restored to them.

3ss 4. The structures erected on the suit land be demolished.

5. Genera-l damages of UGX 20,000,000 for the inconvenience caused by the Defendant with interest of 25oh per annum for date of delivery of judgment until payment in full.

6. Costs awarded to the Plaintiffs.

360 I so order

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Elizabeth Jane Alividza

Judge

36s Date

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Date: ocllttlao?,/

Posted on trCCMIS

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370 Elizabeth Jane Alividza

Judge