[2024] UGHC 597

## The Republic of Uganda

# In the High Court of Uganda Holden at Soroti

### Civil Suit No. 24 of 2018

**### ## # # # # # # #**

- 1. Oyuru Francis (Administrator of the Estate of the late Oyuru Augustine) - 2. Elweu Charles - 3. Odongo Richard - 4. Engwedu Kokas - 5. Okello Edward (Administrator of the estate of the late Enguna Ewinya Simon) - 6. 22 others

### Versus

Soroti Municipal Council ::::::::::::::::::::::::::::::::::::

Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

### 20

### **Judgement**

### 1. Introduction:

Oyuru Francis (Administrator of the Estate of the late Oyuru Augustine), Elweu Charles, Odongo Richard, Engwedu Kokas, Okello Edward (Administrator of the estate of the late Enguna Ewinya Simon) and 22 others (hereinafter referred to as the plaintiffs)jointly sued Soroti Municipal Council ( hereinafter referred to as the

$\mathsf{S}$

defendant), claiming that the defendant was a trespasser on the suit land, which $\mathsf{S}$ measures about Forty-Five (45) plots and is located at Pamba, Soroti Municipality, Soroti District.

The plaintiffs seek the following remedies against the defendant;

- A declaration that the defendant is a trespasser on the suit land, which is located at Pamba, Soroti Municipality, Soroti District, and measures about forty-five $(45)$ plots; - A declaration that the plaintiffs are the rightful owners of the suit land; an order of vacant possession against the defendant, - An eviction order;

- A permanent injunction restraining the defendant, her agents, assignees and 15 any deriving authority from future trespass, - An order that the plaintiffs are entitled to general damages for the unlawful occupation/ use of the suit land, anguish, and mental torture, - A declaration that the plaintiffs are entitled to compensation at the current market value of UGX 40,000,000 for a plot. - A declaration that the plaintiff is entitled to interest at a commercial rate of 30% of the value of the land from 2001 to date, and - Costs of the suit. - 2. The Plaintiffs' case: - The plaintiffs pleaded customary ownership of the suit land and averred that they 25 were the lawful and rightful owners of the suit land measuring about 45 plots before the urbanisation of Soroti Town.

The plaintiffs averred that in 2000, they were approached by the then LC IV $\mathsf{S}$ Councilor representing Pamba Ward, on behalf of the defendant, for a piece of land for the construction of a secondary school, which request was granted at the meeting of the Executives of the Clan of Ipiayatok Inomu on condition that the defendant, through the said school would educate two (2) children from the clan on yearly basis (being a boy and a girl), give employment to some of the clan members 10

when vacancies are available when dormitories are built, some of the dormitories be named after the clan members and that the defendant should pay some money to the clan for the land for the school project in form of compensation.

The plaintiffs averred that a discussion on a possible agreement which was to be

- reduced in writing on the amount to be paid and before the commencement of the 15 construction of the school was made. But that instead of the defendant complying with the conditions, the defendant went ahead and constructed the school without executing the agreement or paying any money to the clan members (the plaintiffs) for the land for the project and neither has the defendant complied with any of the - conditions, yet the school is operational under the name of Soroti Municipal 20 Secondary School since 2001 being operated by Pilgrim Africa 2006 to date.

The plaintiffs further aver that they were aggrieved by the defendant's acts of trespassing and illegally depriving them of the suit land without the defendant's compliance with the terms and conditions of giving them the suit land.

- Accordingly, the plaintiffs seek remedies indicated in their plaint against the 25 defendant. - 3. The Defendant's case:

The defendant denied the plaintiffs' claim and contended that it was neither a $\mathsf{S}$ trespasser nor that it had deprived any person of the said suit land. It contended that it legally acquired the suit land which it has occupied since 2000 without any complaints. That the plaintiffs freely gave the suit land to it for the construction of a secondary school for the benefit of the community and school did construct.

#### 10 4. Agreed facts:

The parties agree that the suit land is located at Pamba Ward, Soroti West, Soroti City, it measures approximately forty-five (45) plots and that the defendant has constructed on it a Secondary School known as Soroti Municipal Secondary School.

## 5. <u>Disagreed facts:</u>

The parties do not agree that the plaintiffs are the rightful owners of the suit land. 15

### 6. Locus visit:

The court visited the locus on 05/04/2024 but unfortunately, the defendant did not participate in those proceedings despite the fact of having been served. The locus report and its findings, which are on record, have been considered together with other materials available on record, in resolving the dispute.

## 7. <u>Representation:</u>

Counsel Ewatu Alfred represented the plaintiffs, whereas Counsel Mudoola Diana represented the defendant.

#### 8. The Evidence: $\overline{5}$

Three witnesses were led in proof of the plaintiffs' case:

- a. Oyuru Francis (PW1), - b. Elweu Charles (PW2), and - c. Ooje Justine (PW3). - d. The defendant led the evidence of Kawesi Daniel Christopher (DW1) as its only witness - e. The plaintiffs adduced documentary exhibits of PEx1 to PEx 11 while the defendant adduced DEx1 to DEx4. - 9. Issues: - The Joint Scheduling of the matter took place on 23/02/2022 and Three (3) issues 15 were formulated to resolve the dispute; and these are; - a) Whether the plaintiffs are the rightful owners of the suit land. - b) Whether the defendant is a trespasser on the suit land. - c) What remedies are available to the parties? - 10. The Legal principles applicable: 20

The law applicable to this suit are indicated in the pleadings of parties. I will consider here the legal principles applicable to this suit as follows.

a. <u>Burden of Proof:</u>

In all Civil matters, the onus rests on a plaintiff who must adduce evidence to prove

his or her case on the balance of probabilities if she is to obtain the relief sought as 25 is provided for by Section 101 (1) of the Evidence Act Cap. 6 which states that;

Whoever desires any court to give judgment as to any legal right or liability dependent $5$ on the existence of facts which he or she asserts must prove that those facts exist.

This legal position was restated Nsubuga vs Kavuma [1978] HCB 307.

b. Standard of Proof:

The standard of proof in civil cases is on the balance of probabilities unlike in criminal cases where the burden of proof is one which is beyond reasonable doubt as 10 discussed in the case of Miller versus Minister of Pensions [1947] 2 All ER 372 at 373 wherein Lord Denning stated as follows;

> "That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice".

#### c. The Contracts Act, 2010: 20

Under Section 2 of the Contracts Act, 2010 a contract is defined as;

An agreement enforceable by law made with free consent of the parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound.

Section 2 of the Contracts Act, 2010 must be read together with Section 10 (1) and 25 (2) of the Contract Act 2010 which defines a contract as follows:

(1) A contract is an agreement made with the free consent of parties with capacity $\mathsf{S}$ to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound.

(2) A contract may be oral or written or partly oral and partly written or may be implied from the conduct of the parties.

In the case of Greenboat Entertainment Ltd Vs City Council of Kampala H-C-C-S No. 10 0580 of 2003 in relations to what a contract was had this to say;

> "In law, when we talk of a contract, we mean an agreement enforceable at law. For a contract to be valid and legally enforceable, there must be: capacity to contract; intention to contract; consensus ad idem; valuable consideration; legality of purpose; and sufficient certainty of terms. If in a given transaction any of them is missing, it could as well be called something other than a contract".

From the above it can be safely concluded that a contract is an agreement which is a legally binding between two parties and it defines and governs the rights and duties of the parties to such an agreement. 20

A contract would thus be legally enforceable when it meets the above legal requirements and approval of the law. Each party to such an agreement must be bound by the contract.

d. Customary law:

The plaintiffs also aver customary land ownership of the suit land. Indeed, most land 25 in Uganda is owned under customary tenure and the law recognizes customary ownership as being equal to ownership with freehold title, and landowners are

entitled to the same compensation, regardless of the system of ownership they hold $\overline{5}$ for their land.

The main features of customary land tenure in Uganda are;

- Collective Ownership: Customary land is typically owned by a community or clan rather than individual titleholders. The community manages and allocates land use rights. - Inheritance Rules: Customary land is passed down through generations based on customary inheritance rules. These rules vary across different ethnic groups and regions. - Informal Documentation: Customary land rights are often documented informally, such as through oral history, community elders, or local leaders. Formal land titles are less common. - Land Use Practices: Communities use customary land for agriculture, grazing, and other livelihood activities. Land is often allocated based on need and family ties. - Some of the notable decisions on customary land ownership in Uganda are *Magbwi* 20 v MTN (U) Limited & Anor (Civil Appeal No. 0027 of 2012. In this case, the appellant claimed ownership of land under customary tenure. The first respondent (MTN) had erected a telecommunications mast on the disputed land without the appellant's permission. The second respondent (Obukpwo Ray) contended that the land belonged to them and had been inherited from their late father. The court had to 25 determine the rightful owner and whether the mast was constructed legally.

The other case is Wayi & Anor v Ojali Civil Appeal No. 0023 of 2009. In this appeal, the first appellant sought a declaration as the customary owner of disputed land.

The second appellant claimed to be a bona fide purchaser for value of the same land. $\mathsf{S}$ The case revolved around establishing customary ownership rights and the validity of the second appellant's claim.

These cases highlight the importance of legal proceedings in clarifying customary land ownership disputes.

If someone claims customary land ownership but fails to provide sufficient evidence 10 to prove it, their claim may not be legally recognized. In Uganda, customary land rights are often established through oral history, community practices, and local leaders.

However, without tangible proof, such as documentation or witnesses, the claimant may face challenges in asserting their ownership.

Legal proceedings require evidence to validate customary ownership claims, and lack of proof could result in the claim being dismissed or disputed by other parties. In customary land cases in Uganda, the following types of evidence are typically accepted:

- a. Oral Testimony: Witnesses who can provide firsthand accounts of community practices, land use, and inheritance customs play a crucial role. Their oral testimony helps establish customary ownership. - b. Community Leaders: Statements from local leaders, clan heads, or elders who have knowledge of land transactions and customary practices are considered valuable evidence.

- c. Local Customary Documents: These may include land registers, village council records, or other community documents that record land transactions and ownership. - d. Boundary Markers: Physical markers (such as trees, rocks, or fences) that define land boundaries can support customary claims. - e. Family History: Evidence of land use by the claimant's family over generations can strengthen their case.

All the above have to be considered in the totality of evidence presented.

The dispute before this court is based on the assertions by the plaintiffs that they are customary, lawful and rightful owners of the suit land measuring about 45 plots before the urbanisation of Soroti Town and that the defendant breached an unsigned gentleman agreement by constructing the community school on their land without complying with certain prior agreed positions.

The plaintiffs case is that in 2000 they were approached by the then LC IV Councilor representing Pamba Ward, on behalf of the defendant, for a piece of land for the

construction of a secondary school, which request was granted at the meeting of 20 the Executives of their Clan of Ipiayatok Inomu on condition that the defendant after constructing the said school, would educate two (2) children from the clan on yearly basis (being a boy and a girl), give employment to some of the clan members when vacancies are available, name some of the dormitories after the clan members and pay some money to the clan for the land for the school project in form of 25 compensation.

In respect of the above discussions, the plaintiffs state that a possibility of an agreement on the terms above was considered and it was agreed that the said

$\mathsf{S}$ consensus ad idem be reduced into writing before the commencement of the $5$ construction of the school.

But that instead of the defendant failed to comply with the discussions but instead went ahead and constructed the school without executing the agreement or paying any money to the clan members (the plaintiffs) for the land for the public school project which was operational under the name of Soroti Municipal Secondary School since 2001 being operated by Pilgrim Africa 2006 to date.

The plaintiffs are aggrieved by the defendant's actions and is now suing the defendant for breach of contract, trespass and illegally depriving them of the suit land without complying with the terms and conditions of giving it the suit land.

## 11. Submissions: 15

On 20/03/2024, the court directed the parties to file written submissions. The plaintiff complied and filed their submissions; however, the defendant did not comply despite having been represented in court on that day.

I am thankful the plaintiffs for their submissions to which I will refer to together with the law and the evidence on record, as and when necessary. 20

## 12. Resolution of issues:

The plaintiffs' counsel submitted the issues in the order agreed during scheduling and I will do so, too accordingly.

a) Whether the plaintiffs are the rightful owners of the suit land.

In my decision in the case of Imodot Paphras Edimu vs Soroti Municipal Council and $\mathsf{S}$ 35 Others HCCS No. 13 of 2012, I explained what land ownership means and stated that;

> "... In ordinary parlance, ownership refers to the state or fact of possessing something or having control over it. It can refer to various contexts, such as owning property, shares in a company, intellectual property, or even personal belongings. Ownership grants rights and responsibilities, and it often carries legal implications. Merriam-Webster Dictionary defines ownership as the state, relation, or fact of being an owner. The Cambridge Dictionary defines it as the fact or the state of owning something.

The term ownership denotes a wide array of rights over property. Lexis Nexis 15 (https://www.lexisnexis.co.uk/legal/glossary,ownership), goes on to state that ownership appears to mean to have the widest set of rights over property and sometimes it is called "absolute ownership" including rights of exclusive enjoyment, of destruction, alteration and alienation, of maintaining and recovering possession of the property from all other persons. .... ownership of 20 land differs from ownership over personal property or over goods in that the common law did not treat land as the subject of absolute ownership but only of tenure.

Also Hon Justice Stephen Mubiru in the case of Odiya v Lukwiya & 3 Others (Civil Appeal No. 53 of 2018) [2019] UGHC 69, while augmenting the above position, 25 observed that "Ownership of land is acquired by either purchase, inheritance, gift, transmission by operation of law, prescription or adverse possession."

From the pleadings and the evidence adduced in this case, the plaintiffs plead $\mathsf{S}$ customary ownership of the suit land through inheritance.

I have already described above as to the features of customary land and these are;

- a) Collective Ownership: Customary land is typically owned by a community or clan rather than individual titleholders. The community manages and allocates land use rights. - b) Inheritance Rules: Customary land is passed down through generations based on customary inheritance rules. These rules vary across different ethnic groups and regions. - c) Informal Documentation: Customary land rights are often documented informally, such as through oral history, community elders, or local leaders. Formal land titles are less common. - d) Land Use Practices: Communities use customary land for agriculture, grazing, and other livelihood activities. Land is often allocated based on need and family ties. - The plaintiffs told the court that they were the sons of the late Oyuru Augustine and 20 his other three siblings (late Ewinya G. W, late Odyeny and late Angic) who owned the suit land and from whom they inherited the same with the late Oyuru Augustine also having inherited the same from his late father called Elubu Yolamu, the grandfather to the plaintiffs. - Through the testimony of Oyuru Francis (PW1) and Elweu Charles (PW2), the 25 plaintiffs told the court that they belonged to the Ipiayatok Inomu clan which owned

the suit land and which suit land was inherited by their late father and uncle Oyuru $\mathsf{S}$ Augustine.

In law, the tracing the interest as far back as can be of the ownership of a suit land is of paramount importance in proving ownership of land as Byamugisha J (RIP) (as she then was) held in the binding case of *Ojwang vs Wilson Bagonza CACA No. 25 of* **2002** that to claim an interest in land the claim must be from someone with an interest.

The plaintiffs' witnesses, that is PW1 and PW2, who corroborated each other, told the court that on or about 20^th July 2000, one Enyenyu Mennaseh Etyeku, a councillor for Pamba Ward of the defendant's council at a meeting of the Ipiavatok Inomu clan requested for a piece of land on behalf of the defendant to establish a community secondary school.

PW1 and PW2 also told the court that Mzee Oyuru Augustine, who was then the clan chairperson offered the suit land for the establishment of the Secondary School but with conditions attached which the defendant was required to fulfill and these include the education of 2 (two) clan (a boy and a girl) yearly in the proposed school, the provision of employment to some of the clan members when vacancies became available in the school, the naming of some dormitories to be built in the school after some of the clan members and lastly that the defendants would pay some money in the form of compensation for the suit land.

These undertakings were not written down and signed by any of the parties and 25 Ovuru Francis (PW1) who tendered in the minutes of the clan – (PEX1) to that effect told court that he never attended the meeting which alluded to those undertakings.

On the other hand, Elweu Charles (PW2) told the court that he attended the meeting $5$ of 20th July 2000 and confirmed that indeed the said meeting agreed to the terms narrated above.

Ooje Justine (PW3) was in 2000 a councilor of the defendant's council and told court that the defendant having acquired some resources resolved to invest the same in some developmental projects like educational institutions, office apartments and student hostels and it tasked Eyenyu Etyeku Manasseh, then its secretary for education to look for land for building a municipal secondary school in the Western division of the defendant.

- Ooje Justine (PW3) told the court that Hon. Eyenyu approached Mzee Oyuru Augustine for the land with Oyuru who had no objection to the intended project 15 offering the suit land to the defendant but with conditions to be fulfilled which were not reduced in writing but before fulfilling the set conditions, the defendant went ahead to fence up the suit land and even started constructing the secondary school in 2001 without fulfilling any of the stated conditions. - The defendant, through Daniel Christopher Kawesi (DW1) informed court that 20 around 2000 the defendant passed a resolution to establish a school in its western division and assigned Eyenyu Etyeku Mannasseh to look for land for the construction of the school. That Eyenyu Etyeku Mannasseh later informed the defendant's council at its subsequent council meeting that the late Mzee Oyuru Augustine had given the defendant land for the establishment of the proposed school but that the 25 council was not informed of any conditions and there was no complaint from the plaintiffs regarding any fulfilment of any agreed conditions including of any compensation from 2001 to 2012.


DW1 further told the court that the late Mzee Oyuru Augustine even in an $5$ undisputed letter dated 5th August 2008 reaffirmed the position that the suit land was given to the Municipal Council free of charge for the establishment of a school. The court conducted locus in quo of the suit land and indeed found that the suit land, which is approximately eight acres, is wholly occupied by the school and on it was also a playground. It is all fenced, and all the dormitories are not named. The 10

court established that David Calvin Echodu is renting the premises from Soroti City Council, which Mr Mboizi Rogiers, the school's head teacher, confirmed.

The plaintiffs insist that the suit land was given to the defendant subject to some conditions. The defendant disputes this fact and insist that the suit land was given freely by the late Mzee Oyuru Augustine to establish the community school.

The plaintiffs' witnesses all admit that there was no written agreement that documented the conditions to be fulfilled by the defendant. PW1 on the other hand contend that a meeting held on 20/07/2000 outlined the conditions to be fulfilled by the defendant in exchange for the suit land. He tendered PEX2 to that effect.

An excerpt from PEX2 is as follows; 20

> "Mzee Oyuru Augustine stood up and said that there is vast virgin land the clan had reserved for future joint development for the clan along old Mbale road, approximately 45 plots near Pamba, which the clan could surrender to the council for the establishment of a secondary school, subject to the condition which the clan should agree and present to the councillor, Hon. Eyenyu Etyeku Manasseh who is the representative of Soroti Municipal Council."

The above excerpt from PEX2 shows that the clan and municipal council were in $\mathsf{S}$ discussions with the parties yet to agree to such condition "which the clan should agree and present to the councillor, Hon. Eyenyu Etyeku Manasseh who is the representative of Soroti Municipal Council. "

The interpretation of PEx2 is that there was the intention to agree on some conditions as illustrated above but nothing concrete was done. 10

While PEx4 was adduced in evidence to support the assertion that the late Oyuru Augustine wrote to the head teacher of Soroti Municipal S. S. S regarding the alleged compensation for the suit land given to the defendant, this letter itself is dated 16/08/2011 which was many years after the defendant had already established the

school yet PEx2 appears to have been a condition precedent which was not 15 followed.

That PEx4 comes several years after makes me conclude that it was an afterthought which makes me wonder why the plaintiffs' uncle/father had to wait for ten years before complaining about the non-receipt of the alleged compensation.

- On the other hand, the examination of DEX1 shows that the late Mzee Oyuru 20 Augustine categorically gave the land to Soroti Municipal free of charge for the establishment of Soroti Municipal Secondary School. This document corroborates the defendant's assertion that it got the land free of charge for community developmental purposes. - None of the exhibits and the evidence adduced by the witnesses corroborates the 25 assertion of the plaintiffs that the suit land was given to the defendant upon certain

conditions being fulfilled though I read in the evidence some intentions of having set $\mathsf{S}$ conditions presented to the defendant but which never materialised.

Also, from the testimony of Ooje Justine (PW3) who seemed to have been involved in the goings in and out in relations to the suit land between the late Oyuru, his clan and the defendant, while I do read some inference to the intended set conditions from his testimony, he was unable to produce any concrete document and or minutes of the Soroti Municipal Council (defendant) where it resolved that the late Mzee Oyuru Augustine be compensated for his land where the community school was subsequently built even though he mentions in his testimony negotiations, albeit unfruitful ones in regard to the compensation.

Given the fact that I have seen no concrete proof that there were set conditions 15 before the defendant took over the suit, then I am of the firm and considered judgement that the plaintiff's case of ownership of the suit land on which the defendant's school is built is untenable.

What I can only deduce from the uncontroverted evidence adduced in court is that the suit land was freely given to the defendant by the late Mzee Oyuru Augustine 20 for it to build a community secondary school.

There is no proof thus either documentary or otherwise that is was not otherwise on a balance of probabilities that he gave the land to the defendant subject to some conditions.

Further from the testimonies of either side, I can state that I have no doubt in my 25 mind that the ownership of the suit land before 2000 was for the Ipiayatok Inomu clan. This fact is not in contention as both the plaintiffs and defendant all agree and

that the said suit land was donated to the defendant for the establishment of a $\mathsf{S}$ community school by the late Mzee Oyuru Augustine who was then clan leader.

That being the case, it is my finding that the plaintiffs are not the rightful owners of the suit land suit land. The evidence clearly proves that suit land was freely donated to the defendant for the construction of a community secondary school.

- My advice to the plaintiffs is that there is still hope that together with the defendant 10 some of their interests may be amicably resolved by the parties herein sitting together and recognizing the generous contribution by which the clan of the plaintiffs did and possibly discussing and agreeing on some of the wishes of the clan such as the education of 2 (two) clan (a boy and a girl) yearly in the school, the provision of employment to some of the clan members whenever vacancies become 15 available in the school, the naming of some dormitories to be built in the school after some of the clan members and maybe even some token money appreciation for the freely offered suit land which formerly belonged to the clan but was freely and unconditionally donated to the defendant by the late Mzee Oyuru. Ground 1 thus fails. 20 - b) Whether the defendant is a trespasser on the suit land.

Since issue one has been resolved in the negative, the defendant is not a trespasser.

## c) What remedies are available to the parties?

The plaintiffs have failed to prove their case on a balance of probabilities and are not entitled to any remedy. 25

## 13. Conclusion and orders: $\mathsf{S}$

From the above analysis, I find that this suit has no merit and it is dismissed accordingly with no order as to costs. I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

3^rd July 2024