[2024] UGHC 298

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA

### **CIVIL SUIT NO 10 OF 2018**

- 1. PETER SEMUGOMA (suing through his lawful Attorneys Kyagaba George William and Katimbo) - SSEKITTO KALINA GERALD ::::::::::::::::::::::::::::::::::::

## -VERSUS-

- 1. ADMINISTRATOR GENERAL - 2. KIVUBUKA ACHILEO - 3. MUGENYI EMMANUEL

4. PERUTH KAGANZI

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#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

### **JUDGMENT.**

#### **Introduction/Background:**

### **Plaintiffs' case:**

- 1. The Plaintiffs' case is that Peter Ssemugooma (the 1^st Plaintiff) is a son to the Late Mikayiri Ganaafa the Late Mikayiri Ganafa was a son to the Late Atanansi Lwayiisa, who died in 1955, leaving behind a vast Estate including but not limited to: - land comprised in Buddu Block 135 Plot 104 situate at Bubemba-Kalagala, Kalungu District ("the suit land"). - 2. That the appointed heir to the Late Atanansi Lwayiisa was Zaveriyo Kanatta who later changed his clan from Butiko (Mushroom) clan to Mamba clan thereby leaving the Late Atanansi Lwayiisa without a customary heir. That sometime in 1990, the family members of the late Atanansi Lwayiisa held a family meeting after the funeral rites ceremony and appointed Peter Ssemugooma as the customary heir of the late Atanansi Lwayiisa. - 3. That the land currently comprised in Buddu Block 135 Plot 104 situate at Bubemba-Kalagala, Kalungu District ("the suit land") was given to Zaveriyo Kanatta as the heir and the same passed onto Peter Ssemugooma when he was appointed to replace Kanatta as the heir to the Late Atanansi Lwayiisa. That having been appointed as heir, Peter Ssemugooma established coffee and banana plantations on the suit land, and he also constructed a residential house where he currently resides with his family members.

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- 4. That sometime in 2009, the $2^{nd}$ and $3^{rd}$ Defendants, without any color of right forcefully cordoned off the Plaintiff's plantations, stopped him from accessing part of the suit land and threatening to evict him from the remaining piece of land. It is also averred in the Plaint that the 3^rd Defendant sold part of the Suitland to the 4^th Defendant without any authority. - 5. By amended Plaint filed in this Honourable Court on the 25^th November, 2021, the 1^st Plaintiff sought for a declaration that he is a son of Mikayiri Ganaafa and therefore a grandson of Atanansi Lwayiisa, the customary heir to both of them and a beneficiary to the Estate of the late Atanansi Lwayiisa; The Plaintiffs also sought for an order for revocation of letters of administration granted to the 1^st Defendant on account of failure to administer and distribute the estate of the late Atanansi Lwayiisa and /or exhibit an inventory or accounts as required by law; A declaration that the $2^{nd}$ and $3^{rd}$ Defendants had no authority to deal with the Suitland in any way and that the purported sale to the 4^th Defendant of part of the suit land was illegal; A declaration that the 4^th Defendant is a trespasser on the Suitland; A permanent injunction restraining the Defendants, their agents, employees and any person whosoever is claiming under them from interfering with the Plaintiffs' quiet possession and use of the Suitland; An Eviction order against the 2^nd, 3^rd and 4^th Defendants off the Suitland; An order for general damages for inconvenience, mental anguish stress and embarrassment occasioned to the Plaintiffs as a result of the Defendants' unlawful actions and Costs of the suit. - 6. The Plaintiffs withdrew the claim against the Administrator General (*First Defendant*) vide notice of withdrawal which is on Court record. They also withdrew against the $4^th$ Defendant as they failed to get her. Court allowed them to proceed against the 2^nd and 3^rd Defendants.

# The Defendants' Defence and Counterclaim.

- 7. In their joint amended written statement of defence, the $2^{nd}$ and $3^{rd}$ Defendants state that the Late Atanansi Lwayiisa died in 1951, and following his death, Simon Musisi was appointed as the heir to the Late Lwayiisa, after Zaveriyo Kanatta changed to Mamba Clan. The Defendants further stated that Peter Ssemugooma illegally built the house on the Suitland, when he had his Twenty (20) Acres at Kitulikizi Lusasa Parish, Bukulula Sub-County, Kalungu District. - 8. The 2^nd and 3^rd Defendants denied the Plaintiff's allegations of trespass to suit land and averred that the same forms part of the estate of their late grandfather Atanansi Lwayiisa and part of it was shared by their late father Simon Musisi. That the Plaintiffs have no

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cause of action against $2^{nd}$ and $3^{rd}$ Defendants because they are not members of the family of the late Atanansi Lwayiisa.

- 9. They also raised a Counter Claim seeking for eviction orders against the Plaintiffs from the suit land and that it was actually the Plaintiffs trespassing on the portion of the late Simon Musisi. - 10. The 4^th Defendant was served, including through substituted service but he did not file a defence. He did not enter appearance in Court when this matter proceeded and then the Plaintiffs withdrew the case against the $4^{th}$ Defendant. - 11. In rejoinder, the Plaintiff retaliated his averments and denied the Counter Claim.

# **Representation and hearing.**

12. The Plaintiffs were represented by M/s Ssemwanga, Muwazi & Co. Advocates. The $2^{nd}$ and $3^{rd}$ Defendants were represented by M/s Mbabali Jude & Co. Advocates. The $4^{th}$ Defendant was not represented neither did she file a defence.

# **Visiting locus.**

- 13. Court visited locus *in quo* on the 10^th day of November 2023 in presence of the parties and their Counsel. While at the locus, it was observed that: - There is an old house constructed around 1986 which was allegedly occupied $\overline{a}$ by Peter Semugooma - the father to the Plaintiff - $b)$ There are coffee and banana plantations planted by the Plaintiff's father (according to the Plaintiff) and planted by Musisi – $2^{nd}$ Defendant's father (according to the $2^{nd}$ Defendant) - There are also two other permanent buildings belonging to Peter Semugooma $c)$ father to PW1 - $d)$ There is also a house of Kyagaba George William (PWI) - $e)$ No evidence to show that the fathers of the Defendants had ever stayed on the suit land later on utilise it - $f)$ There is a burial ground for the relatives of the parties - $g)$ There is a squatter by the names of Kagaza - h) There is a garden/coffee belonging to Kivubuka which he stated that he started using the same in 2020 - i) There was also a small house belonging to Mugenyi which he stated was built in 2016 and some Eucalyptus trees planted in 2001

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### Submissions.

- 14. Counsel for the Plaintiffs was directed to file submissions by 27^th November 2023, the Defendants by 15^th December 2023, and a rejoinder if any by 15^th January 2024. However, none complied with these timelines. Counsel for the Plaintiff filed submissions on 20^th February 2024, and Counsel for the Defendants filed submissions on 29^th February 2024. There is no rejoinder, and I will adopt the submissions out of time. I have read and appreciated all the pleadings and the submissions. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the Pleadings and Witness Statements save for the cited authorities. - 15. At Scheduling, the following five issues were framed for determination of Court; - 1. Who is the lawful owner of the suit land and whether the Defendants are *trespassers;* - 2. Whether the Plaintiffs have a cause of action against the Defendants - 3. Whether the Counter Defendants are trespassers on the land forming part of the *Estate of the late Simon Musisi.* - 4. Whether the Plaintiffs are beneficiaries of the Estate of the late Atanansi Lwayiisa. - 5. What remedies are available to the parties.

### Analysis.

### **Burden and Standard of Proof.**

- 16. In civil proceedings, the burden of proof lies upon he who alleges. Section 103 of the **Evidence Act** provides that; The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. - 17. Accordingly, the burden of proof in civil proceedings normally lies upon the Plaintiff or Claimant. The standard of proof is on a balance of probabilities. The law however goes further to classify between a legal burden and an evidential burden. When a Plaintiff has led evidence establishing his/her claim, he/she is said to have executed the legal burden.

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The evidential burden thus shifts to the Defendant to rebut the Plaintiff's claims (See Asha Ali Suleman and Another Versus Nassanga Aysha Salma and another Civil Suit No. 338 of 2015 (2022.

### **Issues 1:**

# Who is the lawful owner of the suit land and whether the Defendants are trespassers?

- 18. Counsel for the Plaintiffs submitted that the Late Atanansi Lwayiisa left a vast Estate which was distributed as per the Succession records availed to Court by both Parties, and the same were marked as PIDI. That the suit land was originally described as Volume 745 Folio 15 at Buraura, and PIDI shows that the heir Kanatta was given 11 Acres. That it also shows that Simon Musisi (*the Defendants' father*) was given 12 Acres. - 19. That both parties agree that Zaveriyo Kanatta was the first appointed heir to the Late Atanansi Lwayiisa. Both parties further agree that the said Zaverio Kanatta later changed his clan from Butiko (*Mushroom*) clan to Mamba clan thereby leaving the Late Atanansi Lwayiisa without a customary heir. That the gist of the Plaintiff's evidence is that in 1990, the family members of the late Atanansi Lwayiisa held a family meeting after the funeral rites and appointed Peter Ssemugooma as the customary heir of the late Atanansi Lwayiisa. The land currently comprised in Buddu Block 135 Plot 104 situate at Bubemba-Kalagala, Kalungu District ("the suit land") was given to Zaveriyo Kanatta as the heir and the same passed onto Peter Ssemugooma when he was appointed to replace Kanatta as the heir to the Late Atanansi Lwayiisa. - 20. That to the contrary, the Defendants in paragraph 6 of their Defence state that the customary heir of the Late Atanansi Lwayiisa was the late Simon Musisi after Zaveriyo Kanatta changed to Mamba clan. They further stated that Peter Ssemugooma is not the appointed heir to the Estate of the Late Atansansi Lwayiisa. That Kyagaba George William [PW1] explained in *paragraphs* 7,8, 9 10 of his Witness Statement that Peter Ssemugooma was appointed as heir to the Late Atanansi Lwayiisa when Zaveriyo Kanatta changed to the Mamba Clan. That in the minutes of the clan meeting convened on 30^th September 1990 (tendered in evidence as PEX2), it was resolved in item 3 thereof that: - "the Clan Committee has decided that Mr. Peter Ssemugooma be the heir of Atanansi Lwayiisa..." - 21. That in a letter dated 11^th November, 1990, tendered in evidence as PEX4, the last funeral rites of the Late Atanansi Lwayiisa were performed and Peter Ssemugooma was installed as his heir. That it is stated in part as follows: -"Today is the day we have performed the funeral rites ceremony of the late Atanansi Lwayiisa and he is being succeeded by Peter Ssemugooma as his heir his grandchild... The property he has inherited..... Land acres 15 Block 135 Plot 104..."

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That this evidence was corroborated by *Stella Kyamuni Ssemugooma* (PW2) who in *paragraphs 6, 7, 8 and 9 of her Witness Statement confirmed that Peter Ssemugooma was* appointed as heir to Atanansi Lwayiisa, and all the pieces of land that had been given to Zaveriyo Kanatta were given to Peter Ssemugooma. That he was also given a family house that had been built on the burial grounds at Bubemba to enable him take care of the burial grounds.

- 22. That the said Peter Ssemugooma shifted to the suit land, and first occupied the Late Atanansi Lwayiisa's house until when they constructed their own house, which they occupy todate. That Kasimbazi Wasanyi (PW3) told Court that he attended the meeting in 1990 which appointed Peter Ssemugooma as heir to the Late Atanansi Lwayiisa, and in that meeting the properties which were for Zaveriyo Kanatta were given to Peter Semugooma as the new heir. - 23. Counsel for the Plaintiff submitted that each of the Children of the Late Atanansi Lwayiisa got their respective shares. As indicated in PIDI, the heir got 11 Acres (which *were passed on to Peter Ssemugooma as the new heir),* and the Defendant's father got 12 Acres. On the piece of land showed to Court, there was no evidence of occupation of the Suit land by the Defendants and their Late father, implying that they have no claim over the same. - 24. That the Plaintiff's witnesses showed Court the disputed land, and the house which is seated on the 11 Acres, and which constituted the share of the heir, originally taken up by Zaveriyo Kanatta, which passed unto the 1^st Plaintiff, Peter Ssemugooma. That on this piece of land, there is an ancestral home originally occupied by Peter Ssemugooma upon being installed as heir, as well as burial grounds. This piece of land, also has a house built by the $1^st$ Plaintiff, and it is where he is currently staying. - 25. The Defendants stated in their evidence that their claim is for 17 Acres, out of the suit land, which was obtained by their late father Simon Musisi from the Estate of the Late Atanansi Lwayiisa. That this begs the question, the Succession Register (PIDI) show that at Buraura, their father Simon Musisi was given 12 Acres. How then did they get an additional 5 Acres to claim for 17 Acres? That the overall objective of the Defendants is to grab the Plaintiff's land, by taking an additional 5 Acres. That under crossexamination, DW1 confirmed to Court that the 5 Acres were given on a different plot namely Volume 41, Folio 19. This is different from the suit land, which is comprised in Volume 745 Folio 15. Counsel for the Plaintiff submitted that Court finds that the Plaintiff Peter Semugooma is the rightful owner of the suit land, and the Defendants are trespassers thereon.

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- 26. On the otherhand, it was submitted for the Defendants that the 1^st Plaintiff pleaded that he is the lawful owner of the suit land comprised in Buddu Block 135 plot 104 but failed to adduce evidence of ownership of the same. That the evidence adduced by the Plaintiffs and the Defendants shows that the suit land formed part of the Estate of the late Atanansi Lwayiisa and was divided amongst the beneficiaries and that this fact was agreed by the Plaintiffs - 27. That the Succession records PID1 indicate that the suit land was distributed among the 4 children of the late Atanansi Lwayiisa namely Kanatta, 11acres, Loza Nalikka, 12 acres and Simon Musisi, 12 acres. That the 1^st Plaintiff and his alleged father did not receive a share because they are not members of Atanansi Lwayiisa's Family. That the 1^st Plaintiff has no basis to claim ownership of the suit land. That the 1^st Plaintiff claims to be a son of the late Mikayiri Ganafa who was not a child of the late Atanansi Lwayiisa. That the Succession records clearly indicate the children of the late Atanansi Lwayiisa and the said Mikayiri Ganafa is not mentioned anywhere. That the Estate of the late Atanansi Lwayiisa was distributed among the beneficiaries who never included the 1^st Plaintiff's father. That the 1^st Plaintiff claims the share of the late Kanatta who allegedly changed his clan after the distribution. - 28. That the 1^st Plaintiff led no evidence of how he was installed as heir of the late Atanansi Lwayiisa and called no witness to confirm where the meeting appointing him was held. That PW1 told Court that by the time the 1^st Plaintiff was installed as the heir, there were still surviving children of the late Atanansi Lwayiisa. That there is no way the clan could have left the surviving children of the late Atanansi Lwayiisa and appoint the 1^st Plaintiff who was not related to him anyway. - 29. That the $1$ ^st Plaintiff confirmed during cross examination that no one from the family of the late Atanansi Lwayiisa attended the meeting where he was appointed a customary heir. That the 1^st Plaintiff did not present any single document of how he acquired the suit land and how he was appointed to the family of the late Atanansi Lwayiisa. That he used force and unlawfully entered the suit land without the consent of the beneficiaries of the Estate of the late Atanansi Lwayiisa. That the Estate of the late Atanansi Lwayiisa was distributed. There is no way the 1^st Plaintiff could have received a share after the distribution of the entire Estate to the rightful beneficiaries. - 30. That the 2^nd and 3^rd Defendants are beneficiaries of the Estate of the late Simon Musisi who was given 12 acres and 5 acres on the suit land and that is where they claim an interest. That the remaining portion of the suit land belongs to the respective beneficiaries of the Estate as per the Succession records. That the 1^st Plaintiff claims that the properties of Zaveriyo Kanatta were given to him in the family meeting but presented no proof. That

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if the share of the said Zaveriyo Kanatta had reverted to the Estate after changing a clan, the same ought to have been redistributed to the three remaining beneficiaries not to the 1^st Plaintiff. Counsel concluded that the 1^st Plaintiff has no interest whatsoever in the suit land and the same belongs to the beneficiaries of the estate of the late Atanansi Lwayiisa including the $2^{nd}$ and $3^{rd}$ Defendants.

## **Consideration of Court.**

- 31. In the case before me, there are two (2) versions of claims presented to Court; the Plaintiffs' version is that the land in dispute belonged to the Estate of the 1^st Plaintiff's late grandfather. That Peter Ssemugooma (the 1^st Plaintiff) is a son to the Late Mikayiri Ganaafa. That the Late Mikayiri Ganafa was a son to the Late Atanansi Lwayiisa, who died in 1955, leaving behind a vast Estate including but not limited to: - land comprised in Buddu Block 135 Plot 104 situate at Bubemba-Kalagala, Kalungu District ("the suit *land*"). That the appointed heir to the Late Atanansi Lwayiisa was Zaveriyo Kanatta who later changed his clan from Butiko (Mushroom) clan to Mamba clan thereby leaving the Late Atanansi Lwayiisa without a customary heir. That sometime in 1990, the family members of the late Atanansi Lwayiisa held a family meeting after the funeral rites ceremony and appointed Peter Ssemugooma as the customary heir of the late Atanansi Lwayiisa. - 32. That the land currently comprised in Buddu Block 135 Plot 104 situate at Bubemba-Kalagala, Kalungu District ("the suit land") was given to Zaveriyo Kanatta as the heir and the same passed onto Peter Ssemugooma when he was appointed to replace Kanatta as the heir to the Late Atanansi Lwayiisa. That having been appointed as heir, Peter Ssemugooma established coffee and banana plantations on the suit land, and he also constructed a residential house where he currently resides with his family members. - 33. The version of the 2^nd and 3^rd Defendants is that the Late Atanansi Lwayiisa died in 1951, and following his death, Simon Musisi was appointed as the heir to the Late Lwayiisa, after Zaveriyo Kanatta changed to Mamba Clan. That Peter Ssemugooma illegally built the house on the suit land, when he had his Twenty (20) Acres at Kitulikizi Lusasa Parish, Bukulula Sub-County, Kalungu District. That they are not trespasser to the suit land and that the same forms part of the Estate of their late grandfather Atanansi Lwayiisa and part of it was shared by their late father Simon Musisi. - 34. It is therefore not in dispute that historically, the land in dispute formed part of the Estate of the late Atanansi Lwayiisa. In order to have a valid title to the suit land, there must be evidence that the 1^st Plaintiff acquired the suit land by inheritance from the estate of his late Grandfather, Atanansi Lwayiisa, or as a gift *inter vivos*, since the 1^st Plaintiff's title is

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$Smmbb$ rooted in the claim that it was a share of his late father, Late Mikayiri Ganafa, and the heir to the estate of the late Atanansi Lwayiisa.

- 35. The phrase inheritance is defined as "to take as heir on death of ancestor; to take by descent from ancestor; to take or receive, as right or title, by law from ancestor at his demise" (see *Black's Law Dictionary, 8th edition, 2004*). Inheritance therefore denotes devolution of property under the law of descent and distribution. The process of devolution is regulated by the relevant law of descent and distribution which may be either customary, statutory or both. Under both systems, inheritance primarily and narrowly deals with the transmission of property, or of rights to such property, which by necessary implication excludes taking by deed, grant or purchase. Whether testate or intestate, inheritance entails a process guided by rules that govern the devolution and administration of a deceased person's estate. - 36. The common purpose of inheritance under both the customary and statutory legal regimes is that the property of the deceased intestate should be left to the use and benefit of his or her closest relatives or those who were dependent upon him or her during his or her lifetime. By virtue of the procedural requirements embedded in the concept of inheritance, it follows that an individual who claims property of a deceased person only by dint of social affiliation does not necessarily claim by inheritance unless and until it is proved that the devolution was in accordance with the relevant law of descent and distribution under custom or enactment. - 37. Under the Ugandan law, Section 191 of *The Succession Act* provides that no right to any part of the property of a person who has died intestate shall be established in any Court of justice, unless Letters of Administration have first been granted by a Court of competent jurisdiction. The evidence on record indicates that none of the members of the family of the late Atanansi Lawyisa ever took out Letters of Administration soon after his death, but rather it is the Administrator who took out the Letters of Administration later on the 21^st day of October 2010. Therefore, the 1^st Plaintiff could not have acquired a share of the Estate of the Atanansi Lwayiisa through such a process. This leaves only one other possibility, inheritance by custom. - 38. Having traced the root of the suit land from the Estate of the late Atanansi Lwayiisa, the burden is on the 1^st Plaintiff to prove that he had acquired the suit land following rules that govern the devolution and administration of a deceased person's Estate under a specific customary law, by adducing evidence clarifying or defining what those rules are within the customary context. Customary law concerns the rules, practices and customs of indigenous peoples and local communities. It is, by definition, intrinsic to the life and custom of indigenous peoples and local communities.

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- 39. The Succession record dated 30^th August 1963 that was relied on by the Plaintiffs indicate that the late Atanansi Lwayiisa left four children, whom included, Zeveriyo Kanatta, Loza Nalika, Yozefu Musoke and Simoni Musisi. The suit land on Buddu Block 135 Plot 104 (formerly Vol.745 Fol.15 at Buraula Buddu) was distributed among the 4 children of the late Atanansi Lwayiisa namely Zeveriyo Kanatta-11acres, Loza Nalikka-10 acres, Yozefu Musoke-12 acres, Simon Musisi- 12 acres on Vol.745 Fol.15 and 5 acres on Vol.41 Fol.19. There is no mention of the late Mikayiri Ganafa as a child of the late Atanansi Lwayisa. However, from the Succession record, Peter Ssemugooma was given 20 acres on land at Vol. 214 Fol.21 as a gift of land made by the deceased. Clearly, the 1^st Plaintiff was not in any way allocated any part of the land on Vol.745 Fol. 15 at Burala, Buddu. - 40. The question is then, how did the 1^st Plaintiff occupy the suit land. It appears from the evidence that the $1^st$ Plaintiff took over the suit land, formerly Vol.745 Fol.15 at Buraula Buddu in 1990, when the said Zeveriyo Kanatta left. The duration when the 1^st Plaintiff Peter Ssemugooma took over the suit land and has been in occupation of the same is relevant in ascertaining ownership. The 1^st Plaintiff's occupation of the suit land for long creates an adverse possession. - 41. The facts indicate that the 1^st Plaintiff has been in adverse possession of the suit land since for long. No suit was filed against the 1^st Plaintiff, not until the year 2018 when they filed a Counter-claim in this suit asserting their rights, about 28 years after he took possession of the suit land, constructed and set up plantations on the suit land. Actions for recovery of land have a fixed limitation period stipulated by Section 5 of The Limitation Act, which *provides* that;

*No action shall be brought by any person to recover any land 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.*

42. This limitation is applicable to suits/counterclaims in which the claim is for possession of land, based on title or ownership i.e., proprietary title, as distinct from possessory rights. Furthermore, *Section 11 (1) of the same Act* provides that;

*No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter* in this section referred to as "adverse possession"), and where under sections 6 to 10, any such right of action is deemed to accrue on a certain date and no person is in *adverse possession on that date, the right of action shall not be deemed to accrue until adverse possession is taken of the land. (Emphasis added).*

43. According to Section 6 of the same Act, "the right of action is deemed to have accrued on the date of the dispossession." A cause of action accrues when the act of adverse

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possession occurs. In F. X. Miramago v. Attorney General [1979] HCB 24, it 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 actually filed. Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run as against the Plaintiff.

- 44. It is trite law that uninterrupted and uncontested possession of land for a specified period, hostile to the rights and interests of the true owner, is considered to be one of the legally recognized modes of acquisition of ownership of land (see *Perry* $v$ . Clissold [1907] AC 73, at 79). In respect of unregistered land, the adverse possessor of land acquires ownership when the right of action to terminate the adverse possession expires, under the concept of "extinctive prescription" reflected in sections 5 and 16 of *The Limitation Act*. Where a claim of adverse possession succeeds, it has the effect of terminating the title of the original owner of the land (Rwajuma vs. Jingo Mukasa, H. C. Civil Suit No. 508 of 2012). As a rule, limitation not only cuts off the owner's right to bring an action for the recovery of the suit land that has been in adverse possession for over twelve years, but also the adverse possessor is vested with title thereto. - 45. In the circumstances, although the 1^st Plaintiff did not prove that he inherited the suit land from the late Atanansi Lwayiisa, I find that by reason of adverse possession extending over a period of 28 years, the $2^nd$ and $3^rd$ Defendants' claim to the land was extinguished by prescription. Therefore, I find that the 1^st Plaintiff is the lawful owner of the suit land. - 46. On the issue of trespass as alleged against the Defendants, the Plaintiffs averred that, sometime in 2009, the $2^{nd}$ and $3^{rd}$ Defendants, without any color of right forcefully cordoned off the 1^st Plaintiff's plantations, stopped him from accessing part of the suit land and threatened to evict him from the remaining piece of land. - 47. Trespass to land, according to Salmon & Huston on the Law of Torts 19th edition, 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. In the case of Justine E. M. N Lutaaya vs Starling Civil Engineering Co. S. C. C. A No. 11 of 2002 trespass is premised upon interference with the possession of land. Needless to say, the tort is committed not against the land but against the person who is in actual constructive possession of the land. - 48. In this case, having found that the 1^st Plaintiff was in possession of the suit land for period that makes him an adverse possessor, any actions by the Defendants to enter

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the suit land without his consent amount trespass. I therefore find that the 2^nd and 3^rd Defendants are trespassers on the suit land.

49. Issues 1 is answered in favour of the Plaintiffs.

## Issue 2.

## *Whether the Plaintiffs have a cause of action against the Defendants*

50. Having found for the Plaintiffs in issue 1 above, I do not find it necessary to go on to the details of this issue. I therefore find that the Plaintiffs have a cause of action against the Defendants.

#### Issue 3.

# *Whether the Counter - Defendants are trespassers on the land forming part of the Estate of* the late Simon Musisi.

- 51. Trespass to land, according to Salmon & Huston on the Law of Torts 19^th edition, 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. In the case of Justine E. M. N Lutaaya vs Starling Civil Engineering Co. S. C. C. A No. 11 of 2002 trespass is premised upon interference with the possession of land. Needless to say, the tort is committed not against the land but against the person who is in actual constructive possession of the land. - 52. Having found for the Plaintiffs in issues 1 and 2 above, I do not find it necessary to go on to the details of this issue. I therefore find that the Counter - Defendants are trespassers on the land in possession of the $1^st$ Plaintiff.

#### Issue 4.

#### *Whether the Plaintiffs are beneficiaries of the Estate of the late Atanansi Lwayiisa.*

53. The Plaintiffs' Counsel submitted that in 1990, the family members of the late Atanansi Lwayiisa held a family meeting after the funeral rites ceremony and appointed Peter Ssemugooma as the customary heir of the late Atanansi Lwayiisa. That the land currently comprised in Buddu Block 135 Plot 104 situate at Bubemba-Kalagala, Kalungu District ("the suit land") was given to Zaveriyo Kanatta as the heir and the same passed onto Peter Ssemugooma when he was appointed to replace Kanatta as the heir to the Late Atanansi Lwayiisa.

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Smumb

- 54. Kyagaba George William PW1, elaborately testified that Peter Ssemugooma was appointed as heir to the Late Atanansi Lwayiisa when Zaveriyo Kanatta changed to the Mamba Clan. That in the minutes of the clan meeting convened on 30^th September 1990 (tendered in evidence as PEX2), it was resolved in item 3 thereof that: -"the clan committee has decided that Mr. Peter Ssemugooma be the heir of Atanansi Lwayiisa..." That in a letter dated 11th November, 1990 (tendered in evidence as PEX4), the last funeral rites of the Late Atanansi Lwayiisa were performed and Peter Ssemugooma was installed as his heir. - 55. Stella Kyamuni Ssemugooma PW2 testified that Peter Ssemugooma was appointed as heir to Atanansi Lwayiisa, and all the pieces of land that had been given to Zaveriyo Kanatta were given to Peter Ssemugooma. That he was also given a family house that had been built on the burial grounds at Bubemba to enable him take care of the burial grounds. That the said heir Peter Ssemugooma shifted to the Suitland, and first occupied the Late Atanansi Lwayiisa's house until when they constructed their own house, which they occupy to date. - 56. Kasimbazi Wasanyi PW3 testified that he attended the meeting in 1990 which appointed Peter Ssemugooma as heir to the Late Atanansi Lwayiisa, and in that meeting the properties which were for Zaveriyo Kanatta were given to Peter Semugooma as the new heir. - 57. Counsel for the $2^{nd}$ and $3^{rd}$ Defendants submitted that there is no clear record of how the 1^st Plaintiff was appointed a heir and given a portion on the suit land. That the Succession records show the list of the beneficiaries not inclusive of the Plaintiffs. That Court cannot therefore create another list of beneficiaries to include the Plaintiffs. It was concluded that the Plaintiffs are not beneficiaries of the estate of the late Atanansi Lwayiisa and that is why they considered withdrawing the suit against the Administrator General.

## **Consideration of Court.**

58. A beneficiary is defined by Blacks' Law Dictionary 9th Edition page 176 as follows: "A person for whose benefit property is held in trust especially one designated to benefit from an appointment, distortion or assignment (as in a will insurance policy etc)." See also **Abubaker** Sebalamu Ganya versus Yasmin Nalwoga Civil Appeal No. 14 of 2017.

59. In the present case, a beneficiary is an individual or entity to whom a deceased bequeaths real and personal property, cash or other assets. A named beneficiary in the will has

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$-50000$

ascertainable interest in the estate to the extent of the inheritable assets bequeathed. On record there is no will of the late Atanansi Lwayiisa, but rather there is a s

60. Succession record. It reveals the following persons as the named beneficiaries of the estate:

### Children:

- $(i)$ Zeveriyo Kanatta- Heir - $(ii)$ Loza Nalika. - Yozefu Musoke. $(iii)$ - $(iv)$ Simoni Musisi.

People given land gifts by the late Atanansi Lwayiisa and donees with gift deeds.:

- (i) Serenerino Sempa Kivubuka. - (ii) Emmanuel Banabakintu. - Severino Mukasa. (iii) - $(iv)$ Peter Semugooma. - 61. From the above, it is clear that the persons named in the Succession record above were the beneficiaries of the Estate of the late Atanansi Lwayiisa. Peter Semugooma is mentioned and this leads to one conclusion that he is a beneficiary. The 2^nd Plaintiff, Ssekito Kalina Gerard is nowhere mentioned and thus he is not a beneficiary to the Estate of the late Atanansi Lwayiisa. Therefore, save for the 2^nd Plaintiff, it is my finding that the 1^st Plaintiff Peter Semugooma is a beneficiary to the Estate of the late Atanansi Lwayiisa. - 62. Issue 4 is answered in the affirmative.

#### **Issue No. 5: Remedies available.**

- 63. In all, the Plaintiffs/Counter-Defendants have successfully made out their case on the balance of probabilities in both the suit and the Counter-Claim – the Counter - claim is dismissed and Judgment is entered for the Plaintiffs against the Defendants with the following orders: - $i.$ The 1^st Plaintiff is a beneficiary to the Estate of the late Atanansi Lwayiisa. - ii. The 1^st Plaintiff is the rightful owner of the land comprised in Buddu Block 135 Plot 104 situate at Bubemba, Kalagala-Kalungu District. - iii. The 2^nd and 3^rd Defendants are trespassers on the suit land. SMILLINGA

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- An eviction order is issued against the $2^{nd}$ and $3^{rd}$ Defendants from the suit land. iv. - A permanent injunction is issued against the Defendants, their agents, employees $V$ . and any person claiming under them from interfering with the 1^st Plaintiff's quiet possession and use of the suit land by himself or those lawfully claiming under him. - vi. The Plaintiffs are awarded costs of the suit. - 64. From the conclusions I have arrived at on the foregoing issues, there is not sufficient material for the award of general damages since the Plaintiff has not led sufficient evidence that warrants award of general damages. - 65. Judgment is accordingly entered in the above terms. - 66. Before I take leave of this matter, I noted that the $2^{nd}$ Plaintiff's capacity under which he claims against the Defendants is not clear and Court has not found any relationship of the 2^nd Plaintiff to this case and found none on record. Court has therefore made this decision without findings for the 2^nd Plaintiff.

Judgment signed and delivered by email this 25^th day of April, 2024

**LAWRENCE TWEYANZE** JUDGE. 25^th April, 2024.