[2025] UGHCLD 33

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(LAND DIVISION)**

## **CIVIL SUIT NO. 2160 OF 2016**

#### **(FORMERLY NAKAWA CIVIL SUIT NO. 502 OF 2014)**

#### **NAMUBIRU ROBINAH SEWAMALA :::::::::::::::: PLAINTIFF**

#### **VERSUS**

**LAUNDE SAM :::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **JUDGEMENT**

#### **Introduction**

1. The Plaintiff, being the registered proprietor of land comprised in Busiro Block 267, Plot 634, situated at Lweza, Kyadondo County, Wakiso District, has instituted this suit against the Defendant seeking, inter alia, a declaration that she is the lawful owner of the said land; an order for

eviction of the Defendant; a permanent injunction restraining the Defendant, its agents, and/or servants from interfering with the Plaintiff's quiet enjoyment of the suit property; an award of special damages; and costs of the suit.

## **Plaintiff's case**

- 2. The Plaintiff avers that she is the registered proprietor of land comprised in Busiro Block 267, Plot 634, situated at Lweza, having lawfully acquired the same from her late husband in 1984. She further states that the late Grace Launde is the registered proprietor of Busiro Block 269, Plot 192, also situated at Lweza. - 3. The Plaintiff contends that she purchased the suit land under Mailo tenure in Lweza, Kyadondo County, Wakiso District in 1998, and was issued a certificate of title in 2013. Upon purchase, she took possession of the land, utilizing it for agricultural and commercial purposes, including cultivating crops such as matooke, leasing portions of the land to special hire taxi drivers, boda boda riders, food kiosk operators, and flower growers.

- 4. The Plaintiff further asserts that the Defendant, whose building encroaches upon the suit land, has continued to unlawfully interfere with her possession by destroying her fence, cutting down her banana plantation, and wrongfully claiming ownership of the land. The Defendant subsequently took over the suit property, directed the Plaintiff's tenants to cease paying rent to her, and continues to trespass by using the land as a parking space and access road to his buildings. - 5. As a result of the Defendant's unlawful actions, the Plaintiff has suffered loss and damage, necessitating the institution of this suit.

# *Defendant's case*

6. The Defendant's case is that Grace Launde purchased land which title was issued in 1998 and the same was registered under freehold register KYADONDO BLOCK 269 PLOT 192 land at Lweza from MITCHELL COURTS in about 1992. That the proprietor of the said property GRACE LAUNDE died in 2004 wherein the Defendant and his elder brother LAUNDE EDWARD who owns the adjacent land took possession of the same. The proprietor and her sibling

graded the land in 1995. After her death, the family met and appointed the Defendant to be the caretaker of the said land.

- 7. In the year 2008, the Defendant commenced and completed buildings on the said land seated on Block 269 Plot 192 Kyadondo in Wakiso District. - 8. The building is L- shaped with some of the shops facing Kampala Entebbe High Way and other shops facing Kigo Road. Further that his tenants facing the Kampala Entebbe High Way have been accessing their shops through the suit land, until in the year 2013 when the Plaintiff fraudulently acquired a land title on the suit land to defeat the Defendant's interest in the said land. - 9. This is the case that was initially filed at the High Court of Uganda at Nakawa and the same was registered vide Civil Suit No.502 of 2014. - 10. The same was transferred to this court for purposes of jurisdiction.

## *Representation;*

11. The Plaintiff was represented by Counsel Mbogo of M/S MBOGO & CO. ADVOCATES while the Defendant was

represented by M/S OJAMBO & OJAMBO ADVOCATES. Only the plaintiff filed written submissions which I have considered in the determination of this suit.

# *Issues for determination;*

- **i)** *Which of the two titles namely; Kyadondo Block 267 Plot 634 situate at Lweza and Kyadondo Block 269 Plot 192 is valid?* - **ii)** *Whether the Plaintiff fraudulently obtained a certificate of Title to land situate at Kyadondo Block 267 Plot 634 land at Lweza?* - **iii)** *Whether land at Kyadondo Block 267 Plot 634 is a separate and distinct plot from Kyadondo Block 269 Plot 192 occupied by the Defendant.* - **iv)***Whether any of the two suit plots have been trespassed upon and if so by whom?* - **v)** *Whether the Plaintiff acquiesced in the Defendant's construction of the property on the suit land and the Plaintiff is estopped from challenging the Defendant's title or claim thereto.* - **vi)***What remedies are available to the parties?*

# **Burden and Standard of Proof;**

- 12. In civil cases, the burden of proof is on the Plaintiff who must provide enough evidence to support their claim. The standard of proof is 'preponderance of the evidence' which means the Plaintiff must show that their case is more likely than not to be true. - 13. In the instant case, it is the duty of the Plaintiff to prove her case on a balance of probability as well as the defendant's duty to prove his counter claim on a balance of probability. - 14. Section 100 of the Evidence Act is to the effect that he who alleges must prove. It states that; *"*whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof is on that person." - 15. Section 102 of the Evidence Act further states that; "the burden of proof as to any particular fact lies on that person

who wishes court to believe in its existence, unless it's provided by law that the proof of that fact shall lie on any particular person."

#### *Resolution and determination of Issues;*

Issue 1: Which of the two titles namely; Kyadondo Block 267 Plot 634 situate at Lweza and Kyadondo Block 269 Plot 192 is valid?

- 16. Section 59 of the Registration of Titles Act is to the effect that a Certificate of Title is conclusive evidence of ownership. **"(1) every certificate of title issued under this Act shall be received in all courts as conclusive evidence of the particulars set forth in it. (2) The court may however in its discretion, permit any persons to bring a suit to cancel or rectify the Certificate of Title on the grounds of fraud or misrepresentation**" - 17. A certificate of title is only valid if it is issued in accordance with the prescribed procedures and requirements. - 18. **In Turinawe & 4 Ors v. Eng Turinawe & Anor SCCA 10/2018,** the Supreme Court affirmed the proposition of the law by the Court of Appeal that a certificate of title is

not conclusive proof of ownership in land until the circumstances of acquisition have been investigated.

- 19. This case illustrates the importance of ensuring that a Duplicate Certificate of Title is issued in accordance with the prescribed procedures and requirements. - 20. **PW1** Namubiru Robinah Sewamala testified and stated that she purchased the suit land sitaute at Lweza, Kyadondo County, Wakiso District from her deceased husband Sewamala Frank who had big land in the form of Kibanja in the year 1998. upon purchase, a sale agreement was executed between the parties in Luganda which later translated to English and the same was Exhibited in court as Exhibit P1. she then took possession by planting matooke, renting out to special taxi drivers, boda boda riders, food operators, flower growers. - 21. She further stated that she bought her interest on the land from Mr. Mpadwa Moses who was the landlord with the mother title. - 22. She then approached Mr. Sekandi George PW2 who was the cartographer to help her process a duplicate certificate of Title. That together with PW2, they went to the land lord

who filled in and signed the mutation forms and gave them his passport size photographs to help in the process.

- 23. **PW2** the retired civil servant with the Ministry of Lands, Housing and Urban Development in his witness statement testified and stated that together with Mr. Seruwunge, they surveyed the land and later forwarded the report to Wakiso District Survey office to complete the sub division of the Plaintiff's title from the mother title. - 24. He further stated that the suit land boarders the Kampala- Entebbe express High way and is not on a road reserve. Prints were obtained from Wakiso District Surveys office and they got a sub division plotted and the resultant plots were Kyadondo Block 269 Plot 634 for the Plaintiff and Plot 635 as a residue for the landlord. That eventually forwarded transfer forms and his passport photographs and finally a title was obtained in the Plaintiff's name. - 25. He further stated that Block 267 Plot 634 and Block 269 Plot 192 share a common boundary of Freehold land and private Mailo plots facing each other.

- 26. From the above set of facts, I am inclined to believe that Certificate of Title of land comprised in Kyadondo Block 267 Plot 634 is valid. - 27. As for the validity of land comprised in volume 353 Folio 8 Plot 192 Block 269, the Defendant himself testified in his witness statement and stated that the land belonged to his late sister Grace Launde the registered proprietor of the said property who acquired the same through purchase in the year 1992 and completed payment in 1995 from Mitchell Courts. - 28. That the said Grace died sometime in the year 2004 and that the family sat and agreed that he should be the caretaker of Grace Launde's property. His evidence corroborates that of Launde Edward, his elder brother as well as brother of the late Grace. - 29. The Plaintiff in her cross examination testified and stated that the late Grace Launde is the proprietor of land comprised in Plot 192 Block 267 land facing/ accessed through Kigo Road. From the aforementioned, there is no doubt that the Defendant's land is valid and there is no one challenging the validity of the said title. 30. In conclusion therefore, I find that both certificates of Title on land comprised in Kyadondo Block 267 Plot 634 situate at Lweza and Kyadondo Block 269 Plot 192 are valid.

# **Issue 2: Whether the Plaintiff fraudulently obtained a certificate of title of Kyadondo Block 267 Plot 634 situate at Lweza?**

31. Fraud must be proved strictly. The burden of pleading and proving the same lies on the person alleging it and the standard of proof is beyond mere balance of probabilities required in ordinary civil cases though not beyond reasonable doubt as in criminal cases. *(See: Kampala*

#### *Bottlers v Damanico (U) Ltd SCCA No.2 of 1992)*.

- 32. Fraud is an amorphous concept which is impossible to defined within strict parameters but within the context of land transaction, it has been defined to include dishonest dealings in land or sharp practice to get advantage over another by false suggestion or suppression of truth. - 33. **PW1** testified and stated that she purchased the suit land situate at Lweza, Kyadondo County, Waksio District from her deceased husband Sewamala Frank who had big

land in the form of Kibanja on the 1st day of April, 1998 measuring 13ft by 42 ft and 24ft. Upon purchase a sale agreement was executed and then took possession of the same

- 34. She further stated that she bought her interest on the land from Mr. Mppadwa Moses who was the Landlord with the mother title. - 35. She then approached Mr. Sekandi George PW2 who was the cartographer to help her process a duplicate certificate of title. That together with PW2, they went to the landlord who filled in, signed the mutation forms and gave them his passport size photos. - 36. **PW2** testified and stated that together with Mr. Seruwunge, they surveyed the land and later forwarded the report to Wakiso District Survey office to complete the sub division of the Plaintiff's title from the mother title. He further stated that the suit land boarders the Kampala-Entebbe express High way and is not on a road reserve. - 37. The Defendant in his counter claim pleaded fraud against the plaintiff that;

i) Procuring title for the land in front of the counter claimant's property (as Block 267 Plot 634) well knowing it is an easement and in particular well knowing that since 1992, the deceased Grace Launde and her family have been using the Suit land for access to and from their property comprised on Block 269 Plot 192 Lweza, Entebbe Road.

ii) Procuring a title of the said land well knowing that a substantial portion of it is in the road reserve and is serviced by National Water and Sewerage Corporation.

- 38. Easement on registered land refers to a legal right granted to an individual or entity to use someone else's land for a specific, limited purpose which may be express, implied or by prescription. For registered land, easements are typically recorded in the land registry to provide public knowledge. - 39. Easement is defined in principals of Land Law in Uganda by John T Mugambwa, at page 129 mean a right attached to a particular piece of land that entitles the owner of the land either to use land of another person in a particular manner.

- 40. That an easement constitutes an incorporated hereditament on land. That the following requirements are necessary for an easement to be said to exist. Four requirements must be satisfied before there can be an easement. First, there must be a dominant tenement and a serviette tenement. Secondly, the easement must confer a benefit on (or accommodate) the dominant tenement. Thirdly, the dominant and serviette tenements must not be owned and occupied by the same person. Fourthly, the easement must be capable of forming the subject-matter of a grant." - 41. At common law, an easement on another's land could be acquired through various ways. An easement can be by grant, express or implied. It could also be conferred by statute, out of necessity or by prescription or long user. - 42. Section 60 of the Registration of titles Act, provides thereof that any statement to the effect that a person named in the Certificate of title is entitled to any easement, the statement shall be received in courts as conclusive evidence of that statement.

- 43. The Defendant in his testimony stated that in the year 2008 he constructed buildings being used as shops which are accessed through Kampala- Entebbe High way as others are accessed through the Kigo Road. Looking at the Title of the Plaintiff comprised in Kyadondo Block 267 Plot 634 land at Lweza, there is no access/ easement registered on the said title for the benefit of the Defendant land comprised in Plot 192 Block 269 and the same applies to the defendant's title as there is no statement that he is entitled to any easement. - 44. The defendant did not furnish any evidence for his right to an easement on the plaintiff's land through other means. An easement does not arise merely because the alternative access to the land is inconvenient. If the defendant so desires to get an access road, he should liaise with the plaintiff for one or proceed to utilize the remedy available under the Roads Act. - 45. The Defendant however did not prove to the standards required that the Plaintiff fraudulently obtained a certificate of Title to land situate at Block 267 Plot 634

Lweza. He also failed to prove that the Plaintiff's land is an easement. I therefore find this issue in the negative.

# **Issue 3: Whether land at Kyadondo Block 267 Plot 634 is a separate and distinct plot from Kyadondo Block 269 Plot 192 occupied by the Defendant**.

46. In line with the resolution of issue1, I find that Kyadondo Block 267 Plot 634 is a separate and distinct Plot from Kyadondo Block 269 Plot 192 occupied by the Defendant.

#### **Issue 4: Whether any of the two Plots have been trespassed upon and if by whom?**

- 47. Trespass to land occurs when someone enters or remains on another person's land without permission. - 48. Justine **E. M. N Lutaaya Versus Stirling Civil Engineering Company Limited SCCA No.11 of 2002 at pages 6 to 7** of the judgement held that; "Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not

against the land but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass."

- *49.* In **Aluma Micheal Bayo & 2 others v Saidi Nasur Okuti HCCA No.23 of 2013 at pages 10 to 11** of the judgement the court held that; *"Whereas actions for recovery of land are premised on proof of a better title than that of the person from whom the land is sought to be recovered (see Ocean Estates Ltd v. Pinder [1969] 2 AC 19), actions for the tort of trespass to land only require proof of possession of the land in dispute at the time of the intrusion complained of. A person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world but the rightful owner.* - **50.** 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 *(See; Salmond and Heuston on the Law*

### *of Torts, 19th edition (London: Sweet & Maxwell, (1987) 46).*

- 51. The entry by the defendant onto the plaintiff's land must be unauthorized. The defendant should not have had any right to enter into the plaintiff's land. In order to succeed, the plaintiff must prove that; he or she was in possession at the time of trespass; there was an unlawful or unauthorized entry by the defendant; and the entry occasioned damage to the plaintiff. - 52. The fact of possession for purposes of an action in trespass to land is proved by evidence establishing physical control over the land by way of sufficient steps taken to deny others from accessing the land. That possession constitutes nearly all of the legal claim to ownership is expressed in the adage **"possession is nine points of the law,"** explained in The Dictionary of English Law (1959) as follows; "**The adage means that the person in possession can only be ousted by one whose title is better than his; every claimant must succeed by the strength of his own title and not by the weakness of his antagonists"**

53. The conditions establishing possession were discussed in **Powell v. McFarlane (1977) 38 P&CR 452** as including; **....both factual possession and the requisite intention to possess (***animus possidendi***) Factual possession signifies an appropriate degree of physical control. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so, Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalize with any precision as to what acts will or will not suffice to evidence factual possession.**

**54.** Actual possession therefore is established by evidence showing sufficient control demonstrating both an

intention to control and an intention to exclude others. A possessor of land may not have actual physical possession, but where he or she has knowledge of its boundaries and has the ability to exercise control over them, he or she will be taken to have constructive possession of it.

- **55.** Where part of the land claimed is not under actual physical possession, there must be unequivocal evidence before court that the claimant deals with the cleared and un-cleared portions of the land, co-extensive with the boundaries, in the same way that a rightful owner would deal with it. - 56. PW1 testified and stated that after the purchase of her land now Kyadondo Block 267 Plot 634, in the form of Kibanja from her late husband Sewamala Frank, she took possession of the same by planting matooke, renting part of it to special taxi drivers, boda boda riders, food operators, flower growers. - 57. The defendant allowed the owners of ATOM Advertising to erect their billboard on the Suit land without her consent. NABILA deposited to her money to operate a business in the kiosk on her land. The Defendant reported a case against her and she was arrested only to be released when her relatives took to police her Duplicate Certificate of Title. She further stated that she fenced off her land but the Defendant destroyed her fence claiming that her land is on the road reserve.

- 58. The Plaintiff stated that she made several attempts to use her land but was deprived by the Defendant. She went and complained to the office of ATOM OUTDOOR LTD that the land on which their billboard is seated belongs to her which prompted ATOM OUTDOOR LTD to ask the surveyors to come and do boundary opening confirming that the land is for the Plaintiff. That as a result of these findings, the ATOM OUT DOOR LTD entered into an agreement with the Plaintiff through her lawyers at a consideration of Shs. 1,000,000/= per year. - 59. The Plaintiff states that boundary openings were done more than once. - 60. PW2 Mr. Sekindi George testified that he is a cartographer and a holder of a diploma in the same having knowledge in survey work. He stated that he knows the

Suit land and that it shares a common boundary with Plot 192 Block 269 belonging to the Defendant.

- 61. He continued to state that they went onto the land in 2011 and took measurements of the suit land to correspond with what was in the sale agreement. He further states that the veranda of the Defendant's building slightly encroaches on the Plaintiff's land. - 62. PW3 Aisha Nagawa a land surveyor working with Meridian Surveyors (Land Survey Consultant) in her testimony stated that the Plaintiff in December, 2019 instructed their firm to revisit the site and position her site which I assigned, did and came out with the findings that Plot 634 is located at Lweza along Kampala Entebbe Highway, approximately 0.047 hectares which was being used as a parking for motorvehicles by tenants in the adjacent building. Further, that there is an access road passing through the Plot 634 Block 267, hence tendering of the report which was exhibited in court. - 63. In contrast, the Defendant states that Plot 634 Block 267 was being used by the deceased family, defendant, his agents, tenants as access road to his property comprised

in Block 269 Plot 192. However, in cross examination, he stated that he got permission from UNRA to create an access road on the same. When further cross examined the defendant could not exhibit in court any proof that the said access was granted by the said UNRA.

64. It is upon this basis that I find that Block 267 Plot 192 has been trespassed upon by the Defendant.

# **Issue 5: Whether the Plaintiff acquiesced in the Defendant's construction of the property on the suit land and the Plaintiff is estopped from challenging the Defendant's title or claim thereto**.

- 65. PW1 in her testimony stated that after purchasing her land, she immediately took possession of the same, the Defendant whose building encroaches on her land further with no claim of right destroyed her fence when she fenced off her property, slashed her matooke plantation, chased away all her tenants from the land in the year 2009 as he uses the same as parking yard. - 66. These happenings prompted her to report the case to LC of Lweza who summoned the defendant and the Defendant

turned a deaf ear. She complained to ATOM OUT DOOR LTD who later did boundary opening of the suit land.

- 67. She also stated that she rented a space of NABILA in 2013, the Defendant removed it and took it to Kajjansi Police Station. She further states that she reported the matter to her advocates of M/S Community Justice and Anti-Corruption Forum, hence the matter formally filed in court by her seeking for remedies against the Defendant. - 68. In contrast, the Defendant avers that the deceased's family, Defendant, his agents and tenants have been accessing Plot 192 Block 269 through the suit land. His evidence is further to the effect that the Defendant's plot has been vacant until 2008 when he started and completed building his shops on the same which he rented out to tenants and some of the shops facing Kampala Entebbe Highway. - 69. The fact that the Plaintiff did not sit quiet to watch the Defendant trespass on her land, I am convinced that she has not accepted such trespass on her land by the Defendant.

- 70. Estoppel is provided for in section 114 of the Evidence Act; **"When a person has by his or her declarations, act or omissions intentionally caused or permitted another person to believe a thing to be true and at upon that belief, neither he or she nor his or her representative shall be allowed, in any suit or proceedings between himself or herself and that person or his or representatives, to deny the truth of the thing**". - 71. From the above evidence, I find that the Plaintiff has not acquiesced in the Defendant's construction of the property on the suit land and the Plaintiff is not estopped from challenging the Defendant's title or claim thereto. It is therefore found in the negative.

#### **Issue 6: What remedies are available to the parties?**

### *Special damages*

- 72. It is trite law that special damages are to be specifically pleaded for and proved by the claimant/ Plaintiff. - 73. The Plaintiff sought special damages of shs 49,500,000/= which she pleaded in her paragraph 6 of the pleadings as follows;

- **i)** Rent from special hire taxis at shs 250,000/= 300,000/= for 16 months amounting to shs 4,000,000/= - **ii)** Rent from boda boda cyclists of 20 members each paying 500/= per day amounting to 10,000/= per day by 30 days a month equals to 300,000/= times 12 months in a year amounting to shs 3,600,000/= for 6 years amounting to 21,600,000/= - **iii)** fence poles and barbed wire by 2 equals to shs 3,600,000/=.

**iv)**Labor at shs 400,000/=

- **v)** Nails 20kgs at 5,000/= by 20 equals to shs 100,000/= - **vi)**Rent from 3 food kiosks at 300,000/= per month by 12 months amounts to 3,600,000/= per year by 5 years amounting to shs 18,000,000/=. - **vii)** Survey report times 2 equals to shs 1,000,000/= - **viii)** Other miscellaneous costs shs 800,000/=

All totaling to shs 49,500,000/=.

- 74. She further testified and stated that prior to the Defendant's illegal action, the Plaintiff was earning shs 850,000/= per month from her land she also claimed to have refunded Nabila shs 270,000/= out of her monthly rent of shs 300,000/=. - 75. All these have been pleaded but not specifically proved to court except, special damages on Bill board by ATOM OUT DOOR LTD, where the Plaintiff tendered an agreement between her and the said ATOM OUT DOOR LTD at a consideration of shs 1,000,000/= per year as well as a letter by ATOM OUT DOOR LTD to the Defendant informing him of their finding upon boundary opening and subsequently the decision to pay rent to the Plaintiff. - 76. The defendant testified that he collects shs 6,000,000 from the billboard from 2009-2012. I find this aspect of special damages substantiated.

### *General Damages*

77. In the instant case, the evidence on court record, the actions of the Defendant and the testimony of the Plaintiff, the Plaintiff suffered losses, emotional anguish and inconveniences. I am persuaded to award to the Plaintiff

``` ```

general damages to a tune of shs 6,000,000/= (Six Million Shillings Only)

## *Costs*

- 78. Section 27(2) of the Civil Procedure Act provides that costs as discretionary and normally follow the event. The Plaintiff being a successful party in the suit having suffered damages due to the Defendant's actions, I am inclined to award costs of the suit to the Plaintiff. - 79. Judgment is hereby entered for the Plaintiff as follows; - **i)** The Plaintiff is declared as the lawful owner of land comprised in Busiro Block 267, Plot 634, situated at Lweza, Kyadondo County, Wakiso District. - **ii)** An eviction order for vacant possession of Block 267 Plot 634 by the Defendant. - **iii)** Special damages of shs 6,000,000/= are awarded to the Plaintiff. - **iv)**General Damages of (10,000,000/=) ten Million Uganda Shillings are hereby awarded to the Plaintiffs. - **v)** Costs of the suit are awarded to the Plaintiffs.

**I SO ORDER.**


# **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

#### **24 th /02/2025**

#### **Delivered Electronically via ECCMIS on the 24 th day of**

# **February 2025.**