[2025] UGHC 216

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL SUIT NO. 33 OF 2020**

**WAKIGIRI ANTHONY ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF -VERSUS-1. MUKOMAZI JOSEPH DEFENDANTS 2. COMMISSIONER LAND REGISTRATION AND 1. MUKOMAZI JOSEPH:::::::::::::::::::::::::::::::::::::::::::::::::::COUNTER-CLAIMANTS 2. KAZIRO EMMANUEL KIMONDE -VERSUS-WAKIGIRI ANTHONY ::::::::::::::::::::::::::::::::::::::::::::::::::COUNTER-DEFENDANT**

# **BEFORE: HON. JUSTICE LAWRENCE TWEYANZE**

# **JUDGMENT**

# **Introduction and Background**

- 1. This suit arises from a dispute over the ownership and possession of a Kibanja (customary tenancy) situated at Nyendo-Misaali LC1, Kirunda Village, Masaka District, registered as Block 323 Plot 454 Buddu (hereinafter referred to as "the suit land"). The Plaintiff, Wakigiri Anthony, claims a beneficial interest in the suit land as part of the Estate of his late Father, Andrea Bazambalidde, inherited through customary succession. The 1st Defendant, Mukomazi Joseph, asserts lawful ownership, supported by a Certificate of Title registered on 11th May 2007, and counters that the suit land forms part of the Estate of his late great-Grandfather, Wakigiri Yakobo, inherited through his lineage. The 2nd Defendant, the Commissioner for Land Registration, is isued for allegedly issuing the Title fraudulently or negligently. The 2nd Counter-Claimant, Kaziro Emmanuel Kimonde, claims that a portion of the suit land was allocated to him by the 1st Defendant, his Father, and seeks remedies for alleged trespass by the Plaintiff. - 2. The Plaintiff seeks cancellation of the Certificate of Title, an eviction order against the Defendants, a permanent injunction, damages, and costs. The 1st and 2nd Counter-Claimants, in their Counter -Claim, seek declarations of lawful ownership, confirmation of the Plaintiff's acts as trespass, special and general damages, and a permanent injunction against further interference.

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#### **Plaintiff's Case**

3. The Plaintiff avers that he is a son of the late Andrea Bazambalidde, who inherited the suit land from his Uncle, Mivule Sebastine, a son of Wakigiri Yakobo. Upon Andrea's death in 1988, when the Plaintiff was eight years old, clan elders appointed four caretakers—namely Mukomazi Joseph (1st Defendant), Kwanja Christopher, Nakagwa, and the late Paulo Lukindu—to manage the Estate, including the suit land developed with an eucalyptus forest, until the Plaintiff attained majority. The Plaintiff claims that, upon reaching majority in 2000, the other caretakers handed over their portions, but the 1st Defendant refused. Following unsuccessful negotiations, including a 2013 meeting with the Resident District Commissioner (RDC), the Plaintiff entered the suit land on 24th January 2013 to harvest trees, prompting his arrest by the 1st Defendant, who had obtained a Certificate of Title. The Plaintiff alleges fraud in the title's acquisition and seeks its cancellation.

#### **1st Defendant's Case**

4. The 1st Defendant contends that the suit land originally formed part of the Estate of Wakigiri Yakobo, his Great-GrandFather, whose property was distributed among his children, including Teera Ssemukutu (the 1st Defendant's GrandFather). The 1st Defendant inherited his interest from his late Father, Benedicto Wakulira, and later acquired additional portions through purchases from Yakobo Ssajjabi (1st August 1976) and Augustine Mukasa (31st October 1983). He asserts that Andrea Bazambalidde held no personal Estate, having been a customary heir to Mivule Sebastine, tasked only with maintaining the family burial ground. The 1st Defendant denies acting as a caretaker for the Plaintiff and relies on historical documents (for example, waivers of Busuulu and Envujjo dated 27th February 1926 and 14th October 1956) and his Certificate of Title to affirm his ownership.

#### **Counter-Claim**

5. The 1st and 2nd Counter-Claimants seek declarations that the 1st Defendant is the lawful owner of the suit land (FRV MSK 175 Folio 19, Block 575 Plots 207 and 208), that the Plaintiff has no interest, and that the Plaintiff's actions of entering the land, demolishing the 2nd Counter-Claimant's house, and cutting trees constitute trespass. They pray for special damages (UGX 366,184,000 for the 1st Defendant and UGX 208,627,000 for the 2nd Counter-Claimant), general damages, and a permanent injunction.

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### **Representation and Proceedings**

- 6. The Plaintiff was represented by M/s Bashasha & Co. Advocates. The 1st Defendant and 2nd Counter-Claimant were represented by M/s Nabukenya, Mularia & Co. Advocates. The 2nd Defendant (Commissioner Land Registration) filed no defense and was unrepresented. - 7. The Court visited the locus in quo on 15th November 2022, with parties and Counsel present, and observations were recorded. Written submissions were filed by all represented parties, and a Joint Scheduling Memorandum dated 19th November 2021 framed the following issues for determination:

*1. Whether the Plaintiff is the rightful owner of the suit Kibanja incorporated in Block 323 Plot 454 Masaka?*

*2. Whether the 1st Defendant fraudulently acquired the Certificate of Title for the suit land?*

*3. Whether the 2nd Defendant unlawfully issued a Certificate of Title for Block 323 Plot 454 Buddu to the 1st Defendant?*

*4. Whether the 1st and 2nd Counter-Claimants are trespassers on the suit Kibanja?*

*5. What remedies are available to the parties?*

# **Evidence**

8. The Plaintiff led two witnesses: himself (PW1) and Kwanja Christopher (PW2). The 1st Defendant and Counter-Claimants called five witnesses: Mukomazi Joseph (DW1), Kaziro Emmanuel Kimonde (DW2), Dr. Ochieng Ojomoko (DW3, a Valuer), Mr. Sebyala Amos (DW4, a Forest Officer), and Advocate Simeo Lutakome (DW5, an Estate Administrator). Evidence was adduced via witness statements, with cross-examination conducted. Exhibits included P. Exh.1-3 for Plaintiff and D. Exh.1-12 for Defendants/Counter-Claimants, comprising title documents, sale agreements, valuation reports, and photographs.

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

9. In civil proceedings, the burden of proof lies on the party asserting a fact, as per *Sections 101, 102, and 103 of the Evidence Act, Cap. 8. (Revised Edition)* The standard of proof is on a balance of probabilities (see *Miller vs. Minister of Pensions* [1947] 2 All ER 372), except where fraud is alleged, the standard is slightly higher than balance of probabilities but not beyond reasonable doubt. (see *Kampala Bottlers Ltd vs. Domanico (U) Ltd* [SCCA No. 22 of 1992]). The legal burden initially rests with the Plaintiff, shifting to the Defendant evidentially once a case is made by the Plaintiff. (see *Asha Ali Suleman vs. Nassanga Aysha Salma* [Civil Suit No. 338 of 2015] [2022]).

#### **Analysis and Determination of Issues**

#### **Issue 1: Whether the Plaintiff is the rightful owner of the suit Kibanja incorporated in Block 323 Plot 454 Masaka?**

- 10. The Plaintiff's claim to rightful ownership hinges on his assertion of beneficial ownership, defined in *Black's Law Dictionary* (8th Ed., 2004) as an equitable interest where use and title belong to a person despite legal title residing elsewhere. He contends that the suit land, a Kibanja of approximately 9 acres at Nyendo-Misaali LC1, Kirunda Village, Masaka District, with an eucalyptus forest, forms part of the Estate of his late Father, Andrea Bazambalidde, inherited through customary succession. His evidence, primarily through his witness statement (PW1) and that of Kwanja Christopher (PW2), alleges that Andrea inherited the land from his Uncle, Mivule Sebastine, a son of Wakigiri Yakobo, and that upon Andrea's death in 1988, clan elders appointed four caretakers, whom included himself, the 1st Defendant (Mukomazi Joseph), Nakagwa, and the late Paulo Lukindu to manage the Estate until the Plaintiff attained majority in 2000. PW2, in paragraphs 6-10 of his witness statement, states that the suit land was allocated to the 1st Defendant and Paulo Lukindu, with the latter's death leaving the 1st Defendant as sole caretaker. The Plaintiff asserts that, upon reaching majority, the other caretakers relinquished their portions, but the 1st Defendant refused, prompting his entry onto the land in 2013 to harvest trees, as evidenced by his pleadings and the annexed judgment (P. Exh.3) from a prior suit. - 11. The 1st Defendant, however, presents a competing narrative, supported by a Certificate of Title registered on 11th May 2007 and corroborated by documentary and testimonial evidence. He traces his interest to Wakigiri

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Yakobo's Estate, inherited through his GrandFather, Teera Ssemukutu, and Father, Benedicto Wakulira, with additional purchases from Yakobo Ssajjabi (D. Exh.4, dated 1st August 1976) and Augustine Mukasa (D. Exh.5, dated 31st October 1983). Historical recognition by Mailo owners is evidenced by D. Exh.1 (waiver of Busuulu and Envujjo dated 27th February 1926 by Nyansio Nyanzi Kyambalango) and D. Exh.2 (confirmation by Kasibante Mukudde dated 14th October 1956), admitted without contest. DW1 (1st Defendant) and DW5 (Advocate Simeo Lutakome, an Estate Administrator) testified that the 1st Defendant converted his customary tenancy into a registrable interest under Sections 33 and 35 of the Land Act, by purchasing the reversionary interest from the Administrators of Joseph Kasibante's Estate between 2004 and 2010. At the locus in quo on 15th November 2022, DW2 (2nd Counter-Claimant) identified boundaries marked by mature trees and a graveyard, consistent with the 1st Defendant's long occupancy since the 1980s, while the Plaintiff failed to delineate any boundaries or demonstrate possession, admitting under crossexamination that he had never used the land.

- 12. The legal framework for inheritance in Uganda requires proof of devolution under either statutory or customary law. *Section 187 of the Succession Act, Cap 268 (Revised Edition)*, mandates Letters of Administration for intestate Estates, but no such process was initiated for Wakigiri Yakobo, Mivule Sebastine, or Andrea Bazambalidde, undermining the Plaintiff's statutory claim. For customary inheritance, Section 56(3) of the Evidence Act, Cap. 8, allows judicial notice of practices generally known within the Court's jurisdiction, such as land passing to close relatives, but Section 46 requires specific evidence of applicable customs. The Plaintiff's evidence lacks detail on the Baganda customary rules governing Estate distribution, the identity of clan elders, or compliance with rituals, relying instead on hearsay from his Grandmother and PW2's testimony, which was discredited due to his admitted grudge against the 1st Defendant and a conflicting Sale Agreement (D. Exh.9, dated 30th April 2004) recognising the 2nd Counter-Claimant as an adjoining owner. - 13. Conversely, the 1st Defendant's evidence is buttressed by unchallenged documents spanning 1926 to 2007, reflecting continuous occupation and recognition by Mailo owners. Moreover, even if the Plaintiff had any claim, then this suit filed in 2020, would still be time-barred under Section 5 of the Limitation Act, Cap. 290 (Revised Edition), which prescribes a 12-year limit from the date the right of action accrued and in this case the year 2000, when the Plaintiff attained majority. The Plaintiff did not plead any disability to excuse the delay, and thus his claim would still be a non-starter (see *Iga vs.*

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*Makerere University* [1972] EA 65). *Section 11(1) of the Limitation Act* deems a right of action to accrue upon adverse possession, which the 1st Defendant has maintained since 1988, supported by locus observations of mature trees and a graveyard. This constitutes extinctive prescription, vesting title in the 1st Defendant (see *Perry vs. Clissold* [1907] AC 73; *Hope Rwaguma vs. Livingstone Jingo Mukasa* [HCCS No. 508 of 2012]).

14. It is my finding that the Plaintiff failed to establish rightful ownership on a balance of probabilities. The 1st Defendant is the lawful owner, having acquired the suit land through inheritance, purchase, and registration, with the Plaintiff's claim further extinguished by limitation and adverse possession.

### **Issue 2: Whether the 1st Defendant fraudulently acquired the Certificate of Title for the suit land?**

- 15. The Plaintiff alleges fraud, asserting that the 1st Defendant, as a former caretaker, misrepresented ownership to defeat his equitable interest, supported by a letter from the LC1 Chairperson (P. Exh.2) and a 2013 criminal judgment (P. Exh.3) indicating long-standing disputes. Particulars under paragraph 10 of the Plaint include obtaining registration despite knowledge of Andrea Bazambalidde's Estate and the 2nd Defendant's negligence. PW1 and PW2 testify that the 1st Defendant refused to relinquish the land despite clan decisions, suggesting bad faith. - 16. Fraud, as defined in *Jackson Fredrick Zaabwe vs. Orient Bank Ltd* [SCCA No. 4 of 2006] citing *Black's Law Dictionary* (6th Ed.,p.660), requires a false representation intended to deceive, causing legal injury. *Section 64 of the Registration of Titles Act, Cap. 240*, protects a registered title unless fraud is attributable to the proprietor (see *Katarikawe vs. Katwiremu* [1977] HCB 187). In *Kampala Bottlers Ltd vs. Domanico (U) Ltd* [SCCA No. 22 of 1992], the Supreme Court held that fraud must be directly or impliedly attributable to the transferee, a high threshold given its serious nature (see *Christine Hope Kanyima vs. Mercantile Credit Bank* [Misc. Cause No. 0085 of 2021]). - 17. The Plaintiff's evidence lacks specificity on dishonest acts. The LC1 letter and criminal judgment reflect disputes but not fraud in title acquisition. The 1st Defendant's documents (D. Exh.1-5) and DW5's testimony show a lawful process under Sections 33 and 35 of the Land Act Cap 236 (Revised Edition), with recognition by Mailo owners and Administrators. PW2's credibility is

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undermined by D. Exh.9, and the Plaintiff's reliance on hearsay fails to meet the clear and convincing standard for fraud. The 1st Defendant's occupation since 1988, predating the Plaintiff's majority, further negates intent to deceive.

18. I find that the Plaintiff has not proven fraud. The 1st Defendant's Certificate of Title, acquired through recognized occupancy and purchase, is valid.

### **Issue 3: Whether the 2nd Defendant unlawfully issued a Certificate of Title for Block 323 Plot 454 Buddu to the 1st Defendant?**

- 19. The Plaintiff argues that the 2nd Defendant issued the title despite known disputes, evidenced by LC1 resolutions and the 2013 criminal case, alleging misrepresentation by the 1st Defendant that no other interests existed. PW1 claims the 2nd Defendant relied on land Agents who ignored these disputes. - 20.*Section 134(2) of the Registration of Titles Act Cap 240 (Revised Edition)*, empowers administrators to transfer land, and Section 35 of the Land prioritizes sitting occupants. DW5's testimony and D. Exh.5 confirm the sale process from 2004- 2010, uncontested by the beneficiaries of the Estate of the late Kasibante. The Plaintiff did not provide any evidence of notification to the 2nd Defendant concerning any disputes and be that as it may, the disputes, while documented locally, do not invalidate the registration process without proving fraud or illegality (see *Makula International Ltd vs. Cardinal Nsubuga* [1982] HCB 15]). Moreover, the 2nd Defendant's absence does not shift the burden, as the Plaintiff must prove unlawfulness, and without such evidence, Court cannot aid the Plaintiff. - 21. Therefore, It is my finding that the 2nd Defendant lawfully issued the Certificate of Title for Block 323 Plot 454 Buddu to the 1st Defendant, following statutory procedures, no fraud was proved by the Plaintiff.

### **Issue 4: Whether the 1st and 2nd Counter-Claimants are trespassers on the suit Kibanja?**

22. Trespass requires unauthorized entry (see *Justine Lutaaya vs. Stirling Civil Eng.* [Civil Appeal No. 11 of 2002]). The Plaintiff admits entering in 2013 and 2017, cutting trees and demolishing the 2nd Counter-Claimant's house, pursuant to a nullified Grade I Magistrate's order (P. Exh.3, set aside in Civil Appeal No. 025 of 2016). D. Exh.8 shows the 2nd Counter-Claimant's allocation by the 1st Defendant, with DW2 confirming a homestead destroyed in 2017. Valuation

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reports (D. Exh.10-11 by DW3, D. Exh.12 by DW4) quantify damages at UGX 366,184,000 (eucalyptus), UGX 208,627,000 (house destroyed), and UGX 27,000,000 (indigenous trees), supported by admitted photographs. However, I find it that it is proper to award Special damages as follows; UGX 50,000,000/= (eucalyptus), UGX 80,00,000/= (house destroyed), and UGX 20,000,000/= (indigenous trees).

- 23. The Plaintiff's admission under *Order 13 of the Civil Procedure Rules* and the nullity of the eviction order confirms unlawful entry (see *Francoise Mukyo vs. Rebecca Mawanda* [CACA No. 15 of 2008]). The 1st and 2nd Counter-Claimants' possession, validated under Issue 1, negates their status as trespassers. - 24. Therefore, the Counter-Claimants are not trespassers; and to the contrary, it is the Plaintiff's actions of unlawful entry that constitute trespass.

#### **Issue 5: What remedies are available to the parties?**

25. All in all, the Plaintiff's suit fails, and the Counter-claim succeeds. The Counter-Claimants' special damages are proven through expert evidence (D. Exh.10-12), with DW3 and DW4 applying market value and comparative methods, corroborated by the Plaintiff's admissions (see *Kyambadde vs. Mpigi District Administration* [1984] HCB]). General damages of UGX 20,000,000 reflect inconvenience from 2013-2020, justified by the Plaintiff's willful destruction (see *Haji Asuman Mutekanga vs. Equator Growers* [SCCA No. 7 of 1995]). A permanent injunction is warranted to prevent further interference.

### **Final Orders**:

26. It is hereby ordered that:

- a. The Plaintiff's suit is dismissed, and it is declared that he has no interest in the suit land. - b. The 1st Defendant/Counter-Claimant is declared the lawful owner of the suit land (FRV MSK 175 Folio 19, Block 575 Plots 207 and 208, Masaka District). - c. The Plaintiff's actions of forceful entry and destruction constituted trespass. - d. The 1st and 2nd Counter-Claimants are awarded special damages as follows:

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i. UGX 50,000,000 for destroyed trees and property.

ii. UGX 80,000,000 to the 2nd Counter-Claimant for his demolished house and property.

iii. UGX 20,000,000 for destroyed indigenous trees and the Lukoni fence.

- e. General damages of UGX 20,000,000 are awarded to the Counter-Claimants for trespass and inconveniences. - f. A permanent injunction is issued restraining the Plaintiff or anyone claiming under him from trespassing, excavating, cutting trees, or interfering with the suit land. - g. Interest on special and general damages at 12% per annum from the date of this judgment until payment in full. - h. Costs of the suit and Counter-Claim are awarded to the Defendants/Counter-Claimants.

I so order.

Judgment delivered electronically at Masaka this 18 th day of April, 2025.

**……………………………… LAWRENCE TWEYANZE JUDGE 18.04.2025**