[2024] UGHCLD 126

### THE REPUBLIC OF UGANDA

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

#### (LAND DIVISION)

#### **CIVIL SUIT NO. 960 OF 2019**

**\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** NAMUDDU FATUMA::::::::::::::::::::::::::::

#### **VERSUS**

- 1. SSEVIRI CRANMER - 2. KIMERA GEORGE WILLIAM - 3. KIMKAM PROPERTY MASTERS LIMITED - 4. SEBAMBULIDDE WHCLIFF:::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

#### **JUDGMENT**

1]. The Plaintiff's claim against the defendants is for a permanent injunction, vacant possession, mesne profits, a declaration that the plaintiff is the lawful/rightful owner of the suit land, general damages for trespass to the suit land and costs of the suit.

**2].** The Plaintiff's cause of action as stated in the plaint is as follows:

- The Plaintiff in 2017 purchased the suit property from the 1^st, 2^nd, and 3^rd $\mathbf{i}$ defendants. The sale agreement was tendered in court and marked as exhibit P.1. - ii. That the Plaintiff paid the full purchase price and took possession thereof. - That the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants later purported to resell the suit iii. property to the 4^th defendant.

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- That the 4th defendant has since trespassed on the suit land and commenced construction of illegal structures. - v. That the defendants' acts are unlawful and they are done without the permission and consent of the Plaintiff.

31. The Plaintiff contends that the defendants are threatening to alienate and or dispose of and or waste the suit land for which the Plaintiff prays for a permanent inju nction.

The Plaintifffurther contends that the defendants'acts are tainted with fraud.

41. The Plaintiff listed the particulars of fraud on part of the defendants as follows:

- a. The 1't, 2nd and 3'd defendants purported to resell the suit property when they knew that they had no interest to resell the suit property to the 4th defendant. - b. The 2"d defendant purported to act as a witness to the sale agreement yet he was one of the directors of the 3'd defendant and a seller for that purpose. - c. The 4th defendant was notified about the plalntiff's interest in the suit land but he ignored the same. - d. That the 4th defendant refused and or failed to inquire from the area LC's and the neighbors to the suit land for fear of knowing the truth.

51. The plaintiff contends that if she had occupied her land, she would have earned money for which she prays for mesne profits. That she has since requested the 4th defendant to vacate the suit land but the 4th defendant has refu sed.

61, The plaintiff contends that she has since suffered great loss and inconvenience as a result of the defendants' illegal acts for which she prays for general damages.

The plaintiff is therefore seeking for the following remedies:

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- A permanent inju n ctio n. - il. Vaca nt possession. - ilt. Demolition of the illegal structure constructed on the suit land by the 4th defe nda nt. - tv. A declaration that the plaintiff is the rightful owner of the suit land. - Mesne profits. - vt. Costs of the su it.

7]. ln their joint written statement of defence, the 1't, 2nd and 3'd defendants state inte r a lia:

- That it was true that the suit kibanja was sold to the plaintiff by the 3'd defendant and the plaintiff was given possession of it since 2017 and has been utilizing it. - il. That they have never resold the suit kibanja to the 4th defendant as alleged by the plaintiff. - ilt. The said defendants deny any fraudulent acts on their part as alleged by the pla intiff . - lV. That the plaintiff has not suffered any loss or inconvenience and if she has suffered any, then it was self-inflicted.

The 1't 2nd and 3'd defendants prayed that the suit should be dismissed with costs.

The 4th defendant never filed a defence though he was duly served and there is an affidavit of service on record.

81. The parties filed a joint scheduling memorandum and framed the following issues for determ inatio n:

- l. Whether the 4th defendant's occupation of the suit land is lawful. - ll. Whether the defendants have committed acts of fraud.

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# lll. Remedies available to the parties.

The Plaintiff proceeded ex-parte the defendants having failed to appear in court to defend the suit.

91. The Plaintiff in her evidence reiterated what she stated in her plaint. She called a witness, Kiggundu Sulaiman, hereinafter referred to as PW2 who testified that he inspected the suit property with the plaintiff and found that it was vacant. He also stated that the plaintiff paid for the full price of the suit land and took possession of it.

The plaintiff's witness further stated that the 4th defendant trespassed on the suit land and constructed thereon an illegal structure.

The Plaintiff filed written submissions the details of which are on record and which I have considered in determining this matter.

## ISSUE ONE: Whether the 4th defendant's occupation of the suit land is lawful.

101. The Plaintiff's evidence was unchallenged by the 4th defendant. The Plaintiff was able to prove that she purchased the suit land. She tendered in court a sale agreement which was dated 26th May 2017. The sale agreement was tendered in court and marked as exhibit P.1.

The sale agreement indicated that she bought the suit land from the 3'd defendant at a consideration of five million, two hundred thousand shillings (5,200,000/=). The sale agreement was witnessed among other people the 2nd defenda nt.

11]. The Plaintiff also tendered in court a letter from the LC l-, Katadde Ward where the suit land is situate confirming that the Plaintiff was the owner of the suit la nd. The Plaintiff's evidence was further corroborated by the evidence of Kiggundu Sulaiman (PW2) who witnessed the sale.

121. The Plaintiff therefore proved on the balance of probabilities that she was the owner of the suit land. Her evidence was not controverted by the defendants. It was held in the case of Behangana Domoro ond another versus The Attorney General-Constitutional Petition No. 53 of 2070 that where evidence is unchallenged, it should be accepted.

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131. The Plaintiff has also been able to prove that the 4th defendant has since trespassed on the suit land and constructed thereon illegal structures. This evidence was never challenged by the 4th defendant. Failure to defend a case imputes admission of the claim, see Fredrick l. K Zabwe versus Orient Bank Limited ond 5 others -S. C. C. A No. 04 of 2006.

The 1't, 2nd and 3'd defendants in their written statement of defence acknowledge that the suit land was sold to the plaintiff by the 3'd defendant and deny having sold it to the 4th defendant.

Therefore, the 4th defendant's occupation of the suit land was unlawful and his continued stay on the suit land without the consent of the plaintiff amounts to trespa ss.

## ISSUE 2: Whether the defendants have committed acts of fraud.

141. Much as the plaintiff pleaded fraud on part of the defendants, she did not adduce evidence to that effect.

The Plaintiff did not prove how the 1't, 2nd and 3'd defendants resold the suit land to the 4th defendant. She never produced any agreement between the 1't, 2nd 3'd defendants and the 4th defendant to that effect. lt was held in the case of Kompolo Bottlers Limited versus Domonico-S. C. C. A No. 22 of 7992 that where fraud is pleaded, the particulars of fraud must be given. lt was further held that it is generally accepted that fraud must be proved strictly, the burden being heavier than on the balance of probabilities generally applied in civil matters.

15]. The Plaintiff having alleged that the 1't, 2nd and 3'd defendants had sold the suit land to the 4th defendant, the burden was on her to prove that fact.

Section 103 ofthe Evidence Act Cap 5 provides that"The burden of proofasto any particulor fact lies on that person who wishes the court to believe in its existence, unless it is provided by ony law that the prool oI thdt fact sholl lie on ony particular person."

161. ln her own pleadings, the plaintiff claims that when she purchased the suit land, she took possession of it. This implies that the vendors of the suit land gave vacant possession of the land they had sold to the plaintiff. I do not see how the plaintiff can now claim that the 1't, 2nd and 3'd defendants sold the land to the 4th

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defendant without evidence to that effect. The 4th defendant does not claim that he bought the suit land from the 1't, 2nd and 3'd defendants. The allegations of fraud were therefore not proved to the required standard.

## ISSUE 3: Remedies available to the parties.

171. Judgment will be entered for the Plaintiff against the 4rH defendant. The case againstthel't,2ndand3'ddefendantsisdismissed. ThePlaintiff will begranted the following remedies against the fourth defendant:

- 1. A declaration that the plaintiff is the owner of the suit land. - 2, The 4th defendant is a trespasser on the suit land. - 3. A permanent injunction is to issue against the 4th defendant from further trespassing on the suit land, - 4. The Plaintiff is to be given vacant possession of the suit land. - 5. The Plaintiff is awarded general damages of twenty million shillings (20,000,000/=) against the 4th defendant. - 6. The Plaintiff will be awarded interest ol 8% per annum on general damages from the date of judgment until payment in full. - 7. The plaintiff will be awarded the costs of the suit against the 4th defendant.

r/.\a

Hon. Justice John Eud es Keitirima

o2l02l2024.