[2023] UGHCLD 353

# THE REPUBLICIOF UGANDA

# IN THE HIGH COURT OF UGANDA

### LAND DIVISION

## CIVIL SUIT NO. 635 OF 2O2O

5 LAMECKNKANGANSERIBETYA PLAINTIF'FS.

#### VERSUS

NABIMANYA NATHAN DEFENDANT

Before: Ladu Jrt stlce Alexand.ra Nkona e Ruo adua

#### JUDGMENT

## Introductlon:

The plaintiffs hled this suit as sons/ benellciaries of the late Yonasani Nseribetya. They contended that the defendant's occupation of the suit land comprised in Mltala Kgakamull Bulerneezl Block 598, plot 7 measurlng 374 acres or

15 757.0 hectares (suit land) is unlawful and prayed for a declaration that they are the rightful owners of the suit land; a permanent injunction; vacant possession, mesne profits; general damages and costs of the suit.

The defendant's case is that the 2nd plaintiff is not a beneficiary of the estate of the late Yonasani Nseribetya since he 'nas not listed as one of the children of the late in his will provided in the pleadings.

That he was entitled to the use and occupation of the suit land as adverse possessor, having come onto the land in 1996 as a purchaser; and the plaintiffs have since 1996 had knowledge ofhis occupation of the suit land.

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That he lodged a caveat to protect his interest, has greatly developed the suit land by establishing thereon a permanent house, banana plantation and a livestock farm.

That he purchased the suit land bonofide from the registered proprietor known as Yokana Nsubuga without knowiedge of fraud (if at all any) by him.

That the cause of action arose in 1996 when he took possession of the suit land and not in 2019 as alleged by the plaintiffs who in any case were not in physical possession at the time of the defendant's occupation.

# rese'lt(Itio'l:

The plaintiffs were represented by M/s KaJeke, Maguru & Co. Adtncates while the defendant was represented by M/s Bashasha & Co. Adaocates. 10

#### Issues.'

- 7) Whether the sult discloses d cduse of o;ctlon, - 2) Whether the sult ls barred bg laut ol llnlta'tlon. - 3) Whether the platnttlJs ha oe lnterest ln the sult la;nd, - 4) Whether the defendant's occttpatlon oI the sult land. ls lauful

# Issue . I\Io. 7: Whether the sutt discloses a cduse of actLon.

### And

# 20 Issue .llo. 2: Whether the sult ls barred ba law of llmltatlon:

The defendant's contention was that not only was the suit time barred but also that the plaintiffs had no cause of action against him, claims which the plaintiffs however denied.

In both instances, Order 7 rule 7 7(a) and (d) of the Clull Procedure Rules

would apply as it grants power to court respectively, to reject a plaint which fails to disclose a cause of action or one which appears to be barred by any law. 25

2 0"tr"t

In his evidence at trial, the defendant in turn also refuted the plaintiffs' claim that they got to know about his occupation of the land in 2019 and maintained that the suit was time barred.

That the plaintiffs no longer had any valid interest in the suit land, if at all any did exist. That the current suit was only intended to resurrect a claim that was extinguished.

### The laut:

### mlta'tlon:

Sectlon 5 of Ltnttat'lon Act (supra) which governs the limitation period for recovery of land provides as follows; 10

> sNo actton shall be brought bg ang person to r.ecouer any land, afier the explratlon of tuelve gears from the date on wh;lch the rlght oJ actlon accrued to hlm or her or, lj lt llrst accrued, to some person through whom he or she clalms, to tho't pe"son.'

It is the established law that a suit which is barred by statute where the plaintiff has not pleaded grounds of exemption from limitation in accordance with Order 7 r.6 Ctutl Procedure Rutes S.f 7I-I must be rejected because in such a suit the court is barred from granting a relief or remedy. (See: Vlncent Rule Oplo o.

Attorneg General [1990 - 19921 KALR 68; Oneslforo Bamuwaylra & 2 Others a. Attorneg eenerdl (7973) HCB 87; John Oitannong a. Mohammed Oltnga [79a5] HCB 86). 20

Sectlon 6 ol the Llmltatlon Act (supra) of the same Act further provides;

'The rlght of actlon shall be d.eemed. to haue accttted. on the date oJ the dlspossession. "

(FJ,)d' ³

The direct import of sectlons 5 and 6 is that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued; which is the date of dispossession.

Thus in the case of P. X Mlramago u. Attorneg General [7979] HCB 24, rt was held that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actuallv fi1ed.

Further, sectlon 25 of the Llnltation Act is to the effect that in actions founded on fraud, the period of limitation does not begin to run until the plaintiff has discovered, or could with reasonable diligence have discovered the fraud.

It is also the settled position that in determining the period of limitation, court looks at the pleadings only, and no evidence is needed. See: Polgftbre (U) Ltd u. Matotu Paul 6r, 3 others (supra); Madhlvanl Internatlonal S. A u. Attorneg General (supra). 10

The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time. It is not to extinguish claims. (See Dhanesaor V. Mehta u. Manllal M Shah [7965] DA 327; Rowal v. Rautal [7990] KLR 275, ond lga u. Makerere Untuersitg [7972] EA 65} 15

# 20 Cause of action:

In the present case, the plaintiffs in paragraph J 7 pleaded that the cause of action arose in 2O19 when they discovered the fraud and trespass committed by the defendant on the suit land.

A cause of action is said to be disclosed where three essential elements are pleaded that is: existence of the plaintiffs right; violation of that right, and the defendant's liability for that violation. (Refer also to: Auto Garage us Motokov (No. 3) [1971] E. A. 574, at 519).

The question as to whether a plaint discloses a cause of action must be determined upon perusal of the plaint with its attachments. (Kebintngl as Road Trainers Ltd & 2 others [2OO8] HCB).

### Trespass:

The plaintiffs claimed that the cause of action against the defendants was trespass to land which they discovered in 2019.

The operative word in the tort of trespass to land is "unlawful"; which simply denotes that which is contrary to the law and for which the trespasser is ultimately liable. (See: Kallash Mlne Llmlted uers.ts B4S Htghstone Ltd Clvll Salt JYo. I39 of 2012).

ln George Kased.de Mukasa a. Etnm.anuel Wabende & Others, Cluil Sait.t\Io. 459/7998 trespass to land was held to be committed where a person wrongfully and unlawfully sets foot upon or takes possession or takes material from the land belonging to another.

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. (Ababtrt Muhamood & Four Ors uersus Mukomba Ananstansla & ?alta Wlfred IrCCS No. 22 oJ2015). 15

It is thus a general rule applicable to all suits in which the claim is for possession of land, based on the title of ownership, ie proprietary title, as distinct from possessory rights that no person shall bring any action to recover after the expiration of twelve years from the date on which the right of action accrued to him or her, or if it first accrued to some person through whom he or she claims, to that person. Section 5(7) of the Llmltatlon Act. 20

As noted earlier in accordance with sectlon 6 of the same Act, the right of action in trespass would be deemed to have accrued on the date of dispossession or when the act of adverse possession occurs. 25

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The question ofwhether or not the alleged acts in trespass first accrued in 1996 and questions surrounding its discovery in 2019 can be determined from the chronology of events as pleaded.

5 It is important to note at this point that what is not in contention is the fact that the defendant purportedly bought the suit land in 1996 from one Yonasani Nsubuga; and that soon thereafter as per DExh 2 in 1997 went on to lodge ^a caveat thereon on a certilicate of title which did not bear the names of the purported vendor.

## Chrono of eaents:

In the chronologr of events which followed, it is also not in dispute that the original grant was issued to Yonasani Nsubuga. Subsequently, one Sebanakita a grandson to Nseribetya had obtained letters of administration as per AC No. OOSO oJ 2OO3. His names were entered on the title on 3.d January,2006. 10

A certificate of title for the suit land was tendered in by the plaintiffs as PExh 7, bearing the names of Yonasani Nseribetya who was the original registered proprietor, entered onto the title on 7th October, 1935. His successor in title was the late James Ssebanakitta. 15

The plaintiffs also presented to court letters of administration granted to Nsangi Rhoda, Solomon Sebanakitta and Jonathan Kagenda all children of the late Sebanakitta, issued by court on 24th September,2OlO, vide AC No. 939 of20O9. (PExh s).

PDxh 6 is the search certificate for the suit land indicating the name of Ssebanakita James as the administrator of the estate of Yokana Nseribetya. It also indicates that three caveats had been successively lodged on the same title. The first caveat was iodged by the defendant himself on 24th April, 1997.

The second one was lodged some ten years later by Ssebanakita James himself. It was lodged on 25th September, 2007, while the third caveat was in the names of Nkanga Lamech (l"t plaintiff), Namulindwa Robinah and Namukoka Musa (3.d

plaintiff), lodged on 23.d August, 2012, claiming as sons/daughter, arrd beneficiaies of the estate of Yonasani Nseribetva.

In support of the plaintiffs' claims, the 3.d plaintiff, Musa Namukoka, the 3rd plaintiff aged 83 years, testified as PurI. He claimed that the suit land belonged to them as family and that he was one of the sons of the deceased as the original owner; and that most of his siblings had since passed on.

kr PutT's evidence, he named other beneficiaries of the estate, amongst whom were Robinah Namulindwa, Israel Ssekubwa (both deceased) Lameck Nkanga Nseribetya and Christine Nakamatte.

10 James Sebanakitta the son and heir to the late Mulindwa Nseribetya who had been son and also heir to Yonasani Nseribetya in 2005 had filed a suit in the Chief Magistrate's Court at Lutdtero: Cluil Sult No. OOO9/2OO5: James Ssebanakltta as Yonasani Nsubuoa.

In that case the late James Ssebanakita testifying as PutT informed court that Yonasani Nsubuga had fraudulently secured letters of administration and that when Ssebanakita went to Bukalasa land office to ascertain the estate, he found that Nsubuga had transferred the land ofthe deceased, which however could not be verified by this court. 15

In that suit he accordingly sought among others, an order for the cancellation of the grant to Nsubuga. 20

Court in granting the prayer for revocation relied on a will admitted in that court as P. I and letters of administration which had been issued to in AC No. 32/96 on 11th July, 1996 to Nsubuga.

The decree (PExh 4) as endorsed by court on 19th December, 2005 which was clear and unambiguous reads: 25

uJ\*8 - 7. The letters of administration granted to Yokana Nsubuga in Administration Couse No. 32 of 1996 on 1ltn Jufu, 1996 are herebg reuoked. (emphasis mine). - 2. The olaintiff be oiuen uctcant Dossession of the land at Kuakamuli ⁵ measunn 374 acres co rised in Bulemeezi ⁷ transferred into his names 1O and - 3 A namano nt in nction doth issue ,o restrain Yokana or his a nfs seruants, successors or uhateuer from interferina with ouite lsic!) ou.tnership and possession of the same land or anu other land of late ¹⁰ Yonasani Nseibetua tuhich Yokana Nsubuqa could haue dealt u-tith. e hasis mine - 4. Tl. Le defendant paAS to the plaintiff the costs of this suit.

Notably, among the witnesses in that suit were: Robinah Namulindwa (Pu:2), a daughter to the deceased, Pw?, Isreal Sekubwa, Put4, Lameka Nkanga the 1"t plaintiff in this suit. A11 the witnesses, listed as children of the deceased including one Nathan Namukoka denied knowledge of Nsubuga.

The defendant relying on his evidence and that of two other witnesses in paragraph l8 of his witness statement however claimed that the decree was not enforceable against him.

20 He referred to a sale agreement between him and the said Yonasani Nsubuga, which was the basis of his claim. The agreement dated 23.d May, 1996, was tendered in court as DExh 7(a).

As per the haldwritten sale agreement dated 23,d May, 1996, Nsubuga had sold to the defendant the land located in Mltala Kgakamull Bulerneezl Block 598,

25 plot 7 tneasuring 374 acres or 757.0 hectares, at a price of Ugx 4,OOO,OOO/=. Ugx 2OO,OOO/= had been paid in cash leaving a ba,lance of Ugx 3'80O,OOO/=.

None of the witnesses however presented by the defendant had been signatory to the agreement.

It is now settled law that a grant of letters of administration remains valid until revoked even where it is later established that the grant had been obtained through fraud, for as long as it remains in operation, it is taken to represent the estate of the deceased. (Anecho Haruna Musa as Tuallbu Noah & 2 others IfCCS JVo. OOO9 of 2OO8, clted bg thls court ln Nurdln Katende us Yunus Kabugo & 4 others. IfCCS .l\Io. 36a of 2012).

In this instant case, and based on the facts as highlighted, the defendant purchased the land on 23.d May, 1996 from Nsubuga who obtained the grant on llth July, 1996. At the time he sold the land to him, Nsubuga had not even obtained the purported grant. 10

As a signatory to the sale transaction and a key witness in this suit Nsubuga was not produced in this court as a witness to support the defendant's claim of a valid acquisition and ownership of the suit land.

It is not in doubt therefore that the cause of action accrued in 1996; and that between and 20O5 about nine years later, a suit had been filed by the registered owner of the suit land. In the judgment of court, the grant of letters to Nsubuga was revoked and the estate property recovered from the illegal occupants.

After the judgment in 2O05, the defendant no longer therefore had any protectable interest in the suit lald. This is further supported by the fact that within the period of 1996 to 2021 several letters of administration were successively secured and caveats lodged between 1997 and 2Ol2 over the same estate, even before the filing of this instant suit. He never took the trouble to validate his stay on that land. 20 25

I could not agree more with the statement in paragraph 6of the reply to the WSD that the defendant's occupation was always protested by the late James Ssebanakitta who filed a suit in 2005 in Luwero Court and his family.

0 9

In those circumstances as highlighted and in response to lssr.es No. 7 and 2, the assertion by the defendant that the suit was limited by statute and that the plaintiffs had no cause of action against would hold no merit.

## Issue lvo. 3: Whether the plo;lntiffs haue lnterest ln the sult lo,nd.

5 Section 770 ol the Euldence Acd stipulates that when the question is whether any person is owner of anything of which he or she is shown to be in possession, the burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner.

In the submissions it was argued by the defence counsel that in his evidence ProI Musa Namukoka allas Nasani Namukoka, (2nd plaintif| admitted that he did not even know where the suit land was located; failed to present any documents in evidence or as proof that he was a son/beneficiary of the late Nseribetya and that he could not have been prevented from using the land whose location he had no knowledge of. 10

PnrI presented a distribution scheme/list dated 20th August, 1957 for the estate of Eriasafu Mulindwa, heir to Yonasani Nseribetya who died on 28th June, 1957. (ReJ. PExh 7). 15

Yonasani Nseribetya had left 9 children, five of whom were boys. Put7, at 16 years at the time was listed as one of them, together with the 1st plaintiff Lamecka Nkanga, at 1O years, then. Also named therein was the heir, Eriasafu Mulindwa who was at the time only 36 years.

A total of 17 beneficiaries under the estate were listed and indeed amongst them were the plaintiffs in this suit, together with others who had testified during the tria-l in the lower court.

In that scheme, the lst plaintiff obtained 5O acres, the 2nd plaintiff, PurI obtained 10O acres out of the suit land. It is clear that the beneficiaries never took possession of the respective shares at the time. 25

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Nsubuga took advantage of the situation and sold the entire 374 acres to the defendant, even before the finding was made by court that he had fraudulently obtained the Ietters of administration.

5 Pro2, Nakulima Enid Sofia, aged only 49 years a daughter to Lameka Nkanga, the 1st plaintiff and niece therefore to th.e Put7, informed this court that whatever she knew about this land was from her father. Her evidence was therefore treated by this court as hearsay evidence. On account of his advance age and based on the documentary proof which the defendants did not successfully challenge, this court found no reason to doubt the truthfulness ofPurI as a sole witness for the plaintiffs. 10

From the judgment of the lower court he had testified as Nasani Namukoka (Pru5/. James Ssebanakitta who filed the suit testified as PurI. As noted earlier court ruled in his favour upon which the land was duly recovered in his names as the administrator of the estate of his late grandfather.

The tria-l court which made its position clear on the ownership of this suit land ordered the occupants on that land to vacate it. The decision remained unchallenged by the defendant. 15

Yet he made no attempt to vacate the land as ordered by court. A judgment of the court whether null or void regular or irregular, and for as long as it remains undischarged, must be obeyed (Hon. Sltenda Sebo,lu as Secretary General oJ

the Eqst Afrlcan Communltg ReJ JVo. I / 2012.). see also; Hadklnson us Hadkinson [1952] all E. R; Attorneg General us Kiruhura Dlstrlct Local Goaernment & 2 others HCMA No. 35 of 2012). 20

It is also a maxim of law recognized and established that no man shall take advantage of his own wrong. See; Nabro Propertles Ltd us. Sky Strucfurres Ltd & 2 others [2OO2] 2 If,LR at page 299. 25

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Following the valid orders of court, the defendant therefore remained on the suit land only as a tenant in sufferance and could not lawfully claim any valid interest thereon, equitable or otherwise.

In the scheme of things, the case of Israel Kabua usMartln Banoba Muslnga

SCCA lVo. 52 ol 1995 recognizes the beneficiaries' right to protect and preserve the estate from waste.

In response to issue.lVo. 3 therefore, the said judgment was irr rem, binding onto the defendant and every other person who occupied or utilized that land. It was proof that the plaintiffs had interest in the suit land.

## 10 Issue llo. 4 Whether the defendant's occupation of the sult land ls lautful

The particulars of fraud as pleaded by the plaintiffs were:

- 1) Acquiring the suit lond from Yokana Nsubuga utrcm he kneu or ought to haue knoun had no interest in the land; - 2) The defendant kneu or ought to haue known that the letters of administration uere fraudulentlV obtained bg Yokana Nsubuga and uere reuoked bg court. - 3) The defendont has on seueral occasions threatened to cause harm to the plaintiffs if theg did not desist from claiming outnership of the land.

## 20 4) The defendant did not furnish any consideration for the suit land.

The defendant in his reply however denied any fraud on his part in the purchase and entry, claiming that no trespass had been committed by him or any of family members. His was that he was a bona fide purchaser for value without notice of any fraud.

25 A bona fi.de purchaser for valuable consideration of land derives protection under sectlon 141 of the RTA. The term is defined in Blacft's Laut Dlctlonary &h Edltlon dt page 7277 to mean:

'(One who bugs somethlng Jor oalue uithout notlce of another's clalm to the propertg and wlthout actual or const .rtcthte notlce of ang defects ln or lnftnnltles, clalms, or equltles a,ga;lnst the seller's tltle; one who has good lalth patd rnluable conslderatlon wlthout notlce of prlor aduerse clallns.'

Whether or not there was fraud and whether or not a party was a bonaJide purchaser for value without notice the question that a court would poise is whether the defendant honestly intended to purchase the suit property and did not intend to acquire it wrongfully. (Daold SelJaka Nallma us Rebecca Musoke SCCA iVo. 12 of 7985).

A person who purchases an estate which he knows to be in occupation of another person other tharr the vendor is not a bona fide purchaser for value without notice of the fraud if he/ she fails to make inquiries before such purchase is made.

Thus in Ugand.a Posts and Telecomm:unlco:tlons as Abrahann Klhtmha SCCA TVo. 36 oJ 7995), such failure to make reasonable inquiries or ignorance or negligence was held to form particulars of the offence of fraud.

In the present case, the plaintiffs in their reply to the defence, paragraph 4 thereof, argued that the defendant never inquired from them about the land or the late Ssebanakitta for fear of knowing the truth. 20

That he lodged caveat when he knew or ought to have known that he had no caveatable interest and failed to secure the prior consent of the beneficiaries under the estate, claims which the defendant however denied.

According to him, he and Nsubuga went to the lands office at Bukalasa ard was shown the title registered in the names of Nsubuga as administrator of the estate; that he took effective possession of the land in 1996; made payments and lodged 25

caveat and utilized the land. There was no such evidence however to prove that a certificate of title had been issued in Nsubuga's names.

In the case of FJ K Zaabute as. Orient Ba:nk & 5 O'rs SCCA No. 4 oJ 2oo6ion of "fraud" is defined as an intentional peruersion of truth for purposes of inducing

5 onother in reliance upon it to part uith some ualuable thing belonging to him or to surrender a legal right.... A false representation of a matter of fact, uhether bg u.tords or bg conduct. ..

It is trite that where an allegation of such gravity as fraud is made, the person who seeks reliance on it must not only specihcally plead but also strictly prove

it, the burden being heavier than on a balance of probabilities generally applied in civil matters. (Kampala Bottlers Ltd. Vs Dannanlaco (U) Ltd (aryra). 10

It must also be proved to a standard higher than any in ordinary civil suit. That being the case, the plaintiff had the undischarged orders of court as proof that there was fraud committed by Nsubuga in securing the grant into his names, which justified the revocation of the said grant. He had constructive knowledge of that fact.

The title that was presented to court v/as not in the names of Nsubuga as the defendant wanted court to believe, or the defendant as his successor in title. It was in the names of the estate.

20 Needless to add, a registered proprietor is protected from ejection from certilicate save for fraud fsectlon 175 (c) and generally by virtue of section 59 of the R?A the title is conclusive evidence of ownership, save in instances where fraud has been committed.

A11 the defendant had was a sale agreement, with no witnesses to support its authenticity and as admitted by him, even failed to complete the payment of the outstanding ba,lance. 25 During cross examination he failed to present a copy of the certificate of title; letters of administration from Nsubuga, a survey report for the suit land; or any proofofhow Nsubuga had acquired the land in the first place.

No search certificate was presented to court as evidence of his search prior to the purchase. Indeed, it is clear that no survey was ever carried out to establish the proper boundaries of the suit land.

DExh 2 statement of search shows that the search was carried out on 23.d September, 2O2O. The findings were that the land was registered in the names of Nseribetya, the administrator of the estate of Yokana Nseribetya AC No. 0O80 of 2O03, registered on the 3'd January, 2006 under Insf. .lVo. BUK6O1O8.

Clearly the only search on this land was made several decades after the purchase had been made and after a decision of court had already been passed in favour of the registered owner.

The defendant had not been entirely honest in his assertion that prior inquiries and searches were made to verify the authenticity of Nsubuga's interest as administrator and owner of the entire portion of land. 15

Indeed, if proper inquiries had been made by him, he would have discovered that Nsubuga never owned/acquired the property; and had no valid letters of administration over the estate.

- After lodging a caveat in 1997,he sat back. Yet the primary objective ofthe caveat is merely to give the caveator temporary protection. A caveator must not sit back for eternity without taking positive steps to handle the controversy, so as to determine the rights of the parties affected by its existence. (Hunter Inaestments Ltd. as Lwangaga & Anor MC No, O87 of 2015). 20 - In the case of Sentongo Produce as Vs Collee Farmers Ltd & Rose Nakafuma Mugllsa HCMC 690/99, it was held that for a caveat to be valid, the caveator or must have a protectable interest legal or equitable to be protected by the caveat.

tt"t"t 15

The defendant in this case could not have under those circumstances acquired any protectable interest in that land.

Prior consent ofthe registered proprietor ofthe suit land and the beneficiaries of both estates and consultations of the neighbours and the local area leaders ought to have been secured.

Court in the recent decision of Jenlter Natbuga vs Mlchdel Mukundane and Anor CACA NO, 2Oa of 2018 made it clear that though not in statute law consultations with the leadership of the area where the land is located is very key in establishing that due diligence was carried out.

None of the LCs in fact appeared in court came to testify. Instead the defendant presented two witnesses, Dut2 and DwS, to prove that he was an adverse possessor of the suit land. 10

## Could the defendant clairn orllnershlo as an ddaerse possessor a nder those clrcltmstances?

15 The defendant relying on the evidence of Christopher Kagonyera, Dro2 a resident of Kaguyo LC 1, Katugo Parish, Ngoma sub county aged 76 years claimed that he was an adverse possessor.

Dut2 cla:'med to share boundaries with the defendant had no knowledge of the block or plot number of the land in dispute. He claimed to have heard about, but knew nothing about the Nsubuga whom the defendant claimed to have sold the suit land to him.

Although he claimed that the title was in the defendant's names, no such title was presented to court. In reexamination he admitted that he relied on the defendant's claim that the land had been registered in his names, whereas it was not.

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It struck this court as odd therefore that given the time he had spent on the land as the defendant's neighbour, he hardly knew an5rthing about this land which covered a huge area of more than half a square mile.

Similar observations were made by this court in respect of the evidence supplied by Mugerwa Fred who testified as Dan3, a resident since 1972 of the neighbouring Kilangazi village within same parish. The two witnesses did not add much value to the defendant's defence.

In the Supreme court decision earlier cited ( Lutalo Moses (Admlnlstrator oJ the estate oJ the late Lutalo Phoebe as OJede Abdallo Bln Cona

(Admlnlstrator of the estate oJ the late Cona Bln oJ Grtlu: SCCA I5 of 20191, the concept of adverse possession was carefully discussed. 10

The court provided preconditions that must be satisfied before court can consider one to be an adverse possessor in Uganda. These were:

- 7) Foctual possesslon oI the la;nd. There tnust be phgslcal control of the ldnd ln issue. The person ln occupatlon rnust be deallng wlth the land. as outner mlght be expected to, and no one rotust be dolng the same; - 2) The possession m:ust be a contlnuous pedod of at least 12 gedrs unlnterupted. - 3) Anlrnus possldendl; an lntention to possess the land. to the excluslon ol all others, lncluding the legal outner. - 4) The possession must be adaerse, le ulthout legal entitlement or ulthout the owner's consent;

5) The possession must De peaceful" excluslue, open and notorlous so cs to put the ouner of the lc,nd on notlce oJ the possessor,s lntentlon;

### 6) The possession must start with a wrongful disposition of the rightful owner.

The title of adverse possessor rests on the infirmity/failure of the right of others to eject him. The owner is therefore under duty to protect his interest in the land; not just look on when his rights are either infringed or threatened by third parties

$\mathsf{S}$ such as squatters and trespassers occupying his or her land.

Failure to do so would mean that the owner of the land has abandoned the property to the adverse possessor or has acquiesced to the hostile acts and claims of the person in possession.

$10$ **Section 78 of the RTA** recognizes adverse possession in the terms below:

# A person who claims that he/she has acquired title by possession to land registered under this Act may apply to the registrar for an order vesting the land in him /her for an estate in fee simple or other estate claimed.

The said provision and principles did not in the view of court apply to the defendant, in light of the fact that there was an existing judgment which had 15 already determined the rights of the estate over this land. The owners had made all efforts to eject him. That is why he could not bother to proceed under **section 78 of the RTA** as cited.

As noted earlier, a cause of action is said to be disclosed if three essential elements are pleaded: existence of the plaintiff's right; violation of that right, and 20 the defendant's liability for that violation. (Refer also to: **Auto Garage vs** Motokov (No. 3) [1971] E. A. 514, at 519 D.

The plaintiffs' had a right under the estate of the deceased; that right was violated and that violation was attributable to the defendant's illegal entry, continued stay on the land despite the undischarged court order.

In response to **issue No.** 4 therefore, the defendant was a mere trespasser on the suit land. He could not also claim the disputed land as an adverse possessor.

$\left(\right)$ harg $18$

#### Issue No 5: Remedies:.

The plaintiffs sought for prayers that the defendant's occupation of the suit land comprised in Mltala Kgakamull Bulemeezl Block 598, plot 7 measurlng 374 acres or 757.0 hectares /sudt land) is unlawful and prayed for a declaration that they were the rightful owners of the suit land; a permanent injunction; vacant possession, mesne profits; general damages and costs of the suit.

### Mesne profits:

In sectton 2(m) of the CPA these are delined as profits payable by a person in wrongful possession of the property, actually received or might with ordinary diligence have received from the property, together with interest on those profits.

The key criteria for calculation of mesne profits is not what the owner loses by the deprivation ofpossession, but profits calculated on the basis ofwhat person in wrongful possession had actually received or might with ordinary diligence have received therefrom.

15 Courts in that respect often adopt the open market value approach. ( See: Vhn Energg U L?D us Shire Petroleurn Co. Ltd & 2 others. (Ctvll Suit No. ooos/2o16).

The powers and amount to be paid would lie in the discretion of court and I am mindful of the fact the discretion should be exercised judiciously. I accordingly

20 grant a sum of Ugx TSOTOOOTOOO/= as mesne damages is payable to the estate of Nseribetya as a fair award.

#### General damaqes:

General damages consist of items of normal loss which a party is not required to specify in his pleading to permit proof. These damages are presumed by 1aw to arise naturally in the normal course of things.

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Court may award them where it cannot measure the way in which they are assessed, except the opinion and judgment of a reasonable person. (See Ronald Kaslbrrnte as SHELL (q LfD [2OO8] HCB, at 763).

5 These may accrue as a consequence due to loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been in, had she not suffered the wrong.

Thus as stated in Robert Ccussens a Attorfleg General SCCA AIo.8 oJ 1999 it was pointed out clearly that the object of the award of damages is to give the plaintiff compensation for the damage, loss or injury he or she has suffered.

In the assessment of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and extent of the breach. (Uganda Comrnercial Bonk V Klgozt [2OO2]) I EA 3O5.

The plaintiff may not prove that he/she suffered general damages, it is enough if he/she shows that the defendant owed him duty of care which he/she breached. (See: Kalemera & Others as UMLMR (U) LTD & Anor [2OO8] HCB 134 at 736). 15

In applying its discretion which has been left to court, I would accordingly grant

Ugx 5O,OOO,OOO/= as general damages, to atone for the inconvenience and suffering occasioned by the unlawful occupation of the suit land by the defendant. 20

Accordingly, the orders /declarations are made in the terms below:

7. The sult propertg belongs to the estate of Nserlbetua oJ uthlch the plalnt{fs are some of the beneficlarles;

- 2. The defendant's occupation of the suit land comprised in Mitala Kyakamuli Bulemeezi Block 598, plot 1 measuring 374 acres or 151.0 hectares (suit land) is unlawful; - 3. A permanent injunction issues against the defendant, his agents and successors restraining them from occupying and utilizing the land; - 4. The defendant is directed to vacate the land within a period of three months after delivery of this judgment; - 5. A sum of Ugx $150,000,000/$ = is awarded to the mesne profits to the estate of the late Nseribetya. - 6. General damages of Ugx 50,000,000/ awarded to the plaintiffs. - 15

$\mathsf{S}$

7. Interest of $12\%$ awarded in respect to orders 5 and 6 above;

8. Costs of the suit to the plaintiffs.

Alexandra Nkonge Rugadya 20

Judge

20^th October, 2023.

Delivered on 23/10/2023<br>Olubare

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