[2024] UGHCLD 164

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

## **CIVIL SUIT NO. 531 OF 2020**

WOIRA BRIAN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. NEGALAMBIRE FARUKU

#### 2. SWAIBU KAGOLO 10

3. SULAIMAN KAGOLO :::::::::::::::::::::::::::::::::::

### **JUDGMENT (EX-PARTE)**

### **Brief facts:**

$\mathsf{S}$

The plaintiff brought this suit against the defendants for eviction orders and 15 costs of the suit. His claim against the defendants is that on the 21^st November 2019 the 1^st defendant sold land to him *Plot No. P618063397*, situate at Banda B2 Jinja Rd 1, at a total cost of *Ugx 61,000,000/= (sixty-one million shillings)*.

That after payment of the final instalment he wrote to Kampala City Council Authority requesting them to transfer ownership of the property in the plaintiff's 20 name. However, that despite the fact that the full amount has been paid to the 1^st defendant he has refused to vacate the premises and that after he left the premises, his siblings' the $2^{nd}$ and $3^{rd}$ defendant refused to leave, and hence this suit seeking among others, vacant possession of the premises.

The 1^st and 2^nd defendants did not file their defence, despite having been served 25 with a plaint and summons to file a defence. The 3^rd defendant on his part filed a defence but did not come to court to testify after having been served by way of substituted means in the monitor newspaper; and upon which court proceeded to hear and determine this matter exparte.

Valout 8 $\mathbf{1}$

### **Representation:**

The plaintiff was represented by *M/s Obed Mwebesa & Associates*. The 1^st and $2^nd$ defendants as noted did not file any defence. The suit was initially filed as a summary suit against the three defendants, under order 36 of the Civil

#### Procedure Rules. $\mathsf{S}$

The 3^rd defendant upon application to this court under **MA No. 1145 of 2020** was granted unconditional leave on 1^st February, 2021, to file a defence. He filed it on 15^th February, 2021 but did not follow it up in court.

Service to him was effected by way of substituted service, vide MA No. 741 of

#### 2023. 10

### **ISSUES**

The following issues were identified for court to determine:

- 1. Whether the plaintiffs' acquisition of land from the first defendant was valid. - 15 - 2. Whether the land in dispute belongs to the estate of the late Swalik Kagolo. - 3. Whether the parties are entitled to the reliefs sought. - $20$

## **Resolution of issues:**

I will deal with both **issues 1 and 2** since they are interrelated.

The plaintiff relied on his own evidence as **Pw1** and that of Michael Kiyingi a resident of and LC 1 Chairperson of Banda Zone B 1, who testified as **Pw2.**

It was the plaintiff's evidence that he first rented the premises in 2015 before he 25 purchased it from the 1^st defendant in 2019 who at the time was staying in a room behind which was part of the premises.

**PExh 3** was tendered in court as a bundle of the monthly payment rent receipts, issued in the names of the plaintiff.

Olabour 8

The plaintiff claimed that when the 1"t defendant approached him offering to se11 the propcrty to him, hc carrie d out duc diligence at Kampala City Council Authority and found that the suit land was registered in the names of the 1"t dcfcndant.

5 That thc salc transaction was madc on thc 2 1st Novcmbcr, 20 19, for the prcmiscs, housc compriscd in plot No. P678063397, situate at Banda 82 Jinja Rd 1 aL a total cost of tlgx 6 7,OOO,OOO/- (Sixtg-one million Uganda shillings}

In thc handwrittcn Luganda salc agrcemcnt, PExh f thc said figure was paid as purchasc price, also confirming thc plaintiffs claim that it was fully paid, in two instalments.

Thc initial payment was madc for tlgx 44,OOO,OOO/=. Anothcr copy of the sale agreemcnt, datcd 21"t Novcmbcr, 2019, PExh 2 was tcndcred in court as acknowlcdgmcnt for thc rcmaining balancc of Ugx 77,OOO,OOO/=.

Thc sketch attached to the agrccment indicatcd that the location of the premises was along. Iinja Road, an arca covcring 27.3 fi. x 71 ft. x 35fi x 16 ft.

Thc agrccmcnts which wcrc witncsscd by six pcoplc, including thc LC ^I Chairpcrson was also cndorsed by KCCA both on 21"1 November,2Ol9 and on 18e December,2Olg, the date on which the balance of Ugx 77,OOO,OOO/= bad bccn paid. Attachcd also to thc agrccmcnt was a copy of thc national idcntity card for thc 1\*t dcfcndant, as thc vcndor. Thc cndorscmcnt with a stamp of KCCA

significd that the said owncrs conscnted to thc transaction. 20

It was the plaintiff's lurther claim that the two parties had agreed that 6 months' gracc period be given to thc lst dcfcndant to a11ow him time within which to complcte his housc. After thc pcriod as agrced, thc 1"t de fendant le ft the

prcmiscs. 25

Howcvcr, that thc 2"d and 3'd dclcndants rcmaincd in thc back room. On 20ft Dcccmbcr, 2019 a rcqucst was madc by thc plaintiff to thc Director Revenue Collcction, KCCA to changc thc namc of thc propcrty owncr from Farooq Kagolo,

t\'trd

thc 1"t dcfcndant to thc namc of the plaintiff, Woira Brian. The requested was accompanicd by a supporting lcttcr by Linc Bonda LC 1 Zone 82.

Whcn howevcr, thc 2nd and 3rd defcndants rcfuscd to vacatc the premises, an eviction notice was issued by the plaintiff through his formcr counsel, Ilf/s

#### 5 PRIEMIE,R Aduocates.

Thc noticc datcd 20th J:unc,2O2O, PExh 4 copicd to thc Chairperson LC1 Banda Zone 82; OC Kyambogo Police Post was addresscd to the Lst defendant. In that notice, the plaintiff rcmindcd lhe 1st defendant that he had bcen fuliy paid and had undcrtakcn to vacatc thc prcmiscs by 1st June 2020.

- Hc requestcd him thercforc to rcmove lhc property and hand over the prcmises within scvcn days from datc of rcccipt of lcttcr. The said noticc also threatened court action in thc cvcnt thc lst dcfcndant failcd to comply. The plaintiff was compcllcd to file this suit aftcr thc dcfcndants' failurc to vacate the 1and. this evidence was not challcngcd. 10 - Also unchallengcd was thc cvide nce of Prtt2 Michael Kiyingi, the LC ¹ Chairperson, Banda who testified that he had witnesscd all the agreements of salc between thc plaintiff and thc 1"t dcfendant. 15

Pu2 in his cvidencc also confirmcd that thc two parties wcrc well known to him and had approachcd him cxprcssing thcir intcntion to him to enter into the salc 20 transaction

Hc also informed court that thc agreement bctwecn the parties was prepared by his Secretary, . Justus Mbayiya, also confirming further that thc money had been paid in two instalme nts and the fact that the plaintiff had allowed the 1st defcndant a period of 6 months to cnable him complctc the construction of his

25 house.

> Howcvcr, that aftcr the 6 months had elapscd the plaintiff reported that the 1"t defendant had lcft but that somc pcople remained in thc house and had since refused to vacate the house.

u'i\*t ⁴

Sulaimani Kagolo the 3.d dcfcndant in his WSD claimcd that the 2"d defendant was a minor bclow the age of 1 il ycars and thercforc thc suit and claims against him were incompctcnt.

In his delence thc 3.d dcfcndant dcnicd thc claims as alleged in the plaint. He claimcd that thc suit propcrty bclonged to the cstatc of thc late Swalik Kagolo, who died testate; and that no probate was ever granted for the estate.

Hc referred to a will lcft by the deccased undcr which the premises had been bequeathcd to Sumani Kavulu, Namutcbi Hawah, Faruk Negalambire and Nuhu Klzito whom thc 3,d dcfcndant rcfcrrcd to as joint owncrs of the suit property.

- 10 In paragraph 7(uii) of his WSD his claim was that all thc four owncrs/ beneficiaries indicatcd that thcy ncvcr sold thc property to the plaintiff as allcged in thc plaint; and that thc sale agrccmcnts did not bear their namcs as bencficiarics. That thc 2"d and 3'd dcfcndants would bring cvidencc at triai to provc that the plaintiff did not own thc suit prope rty. - 15 He never filcd a counter claim but ncvertheless prayed to court to declare that thc suit propcrty bclongcd to the estate of the late Swalik Kagolo and that the allcged purchase was null and void, claims which wcrc refuted by the plaintiff in his countcrclaim and which wcrc ncithcr substantiatcd or proved in court.

## Resolution of the issue:

Section 1O1 oJ the Ervidence Act providcs that whocvcr desires any court to give judgment as to any 1ega1 right or liability dcpcndcnt on the existence of facts which hc or she asscrts must provc that those facts exist and the burden of proof lics on that pcrson. 20

## The lano:

25 Section IO3 furthcr stipulatcs that:

uThe burden oJ proof as to ang particular fact lies on thot person lz.ho urishes the court to belieae in lts existence,"

U"!"rf ⁵

Thc burdcn of proof thcrcforc lies upon the pcrson who allegcs and question the burdcn of proof lics squarcly on thc plaintilf. (Sebuliba uersus Co-opetatlae B(rnk Ltd [1982] HCB 129}

As notcd carlicr, 1"t and 2"d dcfcndants did not file any defcncc. Ord.er I Rule ³

of the CPR providcs that cvcry allcgation contained in the plaint if not denied spccifically or by ncccssary implication or statcd to bc not admittcd in thc plcading of the oppositc party shall bc takcn as admittcd.

Section 10(L) of the Contract Act, 2O7O dcfincs a contract as an agrecmcnt made with thc frcc conscnt of partics with capacity to contract for a lawful considcration and with a lawful objcct, with thc intcntion to bc 1ega11y bound.

Thercforc, for a contract to bc valid and 1ega11y cnforccable, there must bc capacity to contract, intcntion to contract, consensus ad idem; valuablc consideration; legality of purpose; and sufficicnt ccrtainty of te rms.

If in a givcn transaction any of thesc is missing it could as well be ca1led somcthing clsc. (Ebbzutorld Ltd & Anor us Rutakirud Ciutl Suit .lVo. 398 of 2013).

In thc prescnt casc, thc plaintiff claimcd hc had cntcrcd into an agreement with thc 3rd defcndant for thc salc of thc suit propcrty. Hc did so after conducting a scarch which showcd that thc 1st dcfcndant was thc owncr of the suit premises. Hc wrotc to KCCA for a changc of namcs lrom thosc of thc lst defendant to thosc

The salc agrcemcnt which thc plaintiff rclicd on was endorsed by the LC of that area. The validity of thc agrccmcnt was challengcd by the 3.d defendant on the basis of a will of Swaliki Kagolo his late father, but failcd to turn up in court to substantiatc his claims. Thc only documcnt attachcd as annexture A to the WSD

Thc purportcd will appointcd thrcc guardians for Lhc listcd 36 children, some of them appcaring with only onc namc. Thc documcnt purporting to be the will of

was a photocopy of a purportcd will of thc dcccascd dated 2Oth December, 1984.

UJ"",' ⁶

of thc plaintiff. That cvidcncc was ncvcr challcngcd.

the deccascd owner was howcvcr not signcd. Its authorship was not known nor wcre thcrc any witncsscs to attcst to the validity of its contcnts. It did not pass the te st of a valid will. (Rel. Sections 36 and. 5O of the Successton Act, before the amendrnent).

5 No court in in its right framc of mind could rely on an unsigncd will as a valid cxprcssion of thc last wishes of thc dcceased, cvcn if thc dcfcndants were to prove that it had been written by thc deceased himsclf.

All in all, the 3,d dcfendant did not thcrefore prcsent any proof that the suit property bclongcd to thc four bcncficiaries as mcntioned. In the unlikcly evcnt that it did, the 3rd dcfcndant nccdcd to show whether if at all, these beneficiaries ever objcctcd to thc transaction in any way; whether he had the authority to rcpresent them in any of the allcgations raised in his defence; or if he had their joint authority/ permission to stay in that housc.

Thc property was in any casc not in thc namcs of Swaliki Kagolo his father as the 3'd defcndant wanted court to believe. PExh 2 on the other hand is a statemcnt of account datcd 2ort Dcccmbcr, 2Ol9 lor property registered in the names of Faruk Kagolo. Thc prcsumption which rcmained unrebutted was that this was thc son of Kagolo, as indicatcd in the national idcntity card who sold the land to thc plaintiff. 15

- Section 59 oJ the Registration of T'ltles Act is clcar. A ccrtificatc of registration is proof of owncrship and without any other title to disprovc it, then it is conclusive proof that the person registered therein, the 1"t defendant at that time was thc owncr and had cvcry right to deal with thc land and transfer the same to thc plaintiff. 2A - In thc prcscnt casc, thc ccrtificatc of registration was attachcd and dated 3.a . January, 2020. It was sufficicnt proof that thc propcrty was duly transferred into the plaintiffs namcs who is thc currcnt owner. 25

7 0r.!\*4"

In rcsponsc thcrcforc to issues No. 7 and 2 thc land in disputc belongs to thc plaintiff who rightfully acquircd it from thc 1"t defendant. There is no proof that it bclongs to thc cstate of thc latc Swalik Kagolo.

## Issue No. 3: What are the remedu aaailable to the parties?

5 Thc plaintiff praycd for cviction ordcrs, damagcs and costs of the suit.

## General d.amages:

An award of gcncral damagcs lics within thc discrction of court in rcspect of what thc law prcsumcs to bc thc natural and probablc conscqucnce of the defcndant's act or omission (See Jannes Fredrtck Nsubuga Vs Attorneg General, H. C. Ciuil

10 Sutt . IVo. 73 oJ 1993 q.nd Erukana Kuute ys. Isccc Prrtrick Matovu and anothe4 H. C, Cit il Suit No, L77 oJ 2OO3),

As submitted by counsel lor thc ptaintiff, the dcfcndants' acts on the suit property were bascd on illegitimatc claims of ownership and occupation by the 3rd dcfcndant.

15 Indccd, during thc loczs visit, this court notcd that the room located at thc back of thc shop had bccn lockcd and that thc plaintiff could not access it despite the fact that thc occupants wcrc no longcr occupying it. It was the plaintifl's claim that the house had becn abandoncd around rnid-2O22.

In so failing to givc total vacant posscssion as agrccd, the lst defendant not only brcached thc agrcemcnt but also caused untold suffe ring and mental anguish to the plaintiff, which entitlcs the plaintiff to damages for the period in illegal occupation. 20

As pcr thc cviction noticc datcd 2O1h. Iunc, 2O2O, lhc dcfendants have been in illcgal occupation of thc prcmiscs for a pcriod of four ycars. Sincc the plaintiff

had bccn paying Ugx SOO,OOO/=. as rent per month during the time when hc was sti11 a tcnant, thc sum of Ugx 6,OOO,0O0/ which was paid by him per year is payablc as total damagcs by thc dcfcndants for thc cach of thc four ycars they wcre in illegal occupation of thc prcmise s. 25

u/"ry

Accordingly, the following orders are granted to the plaintiffs:

- 1. The defendants are hereby given three weeks within which to move their property from the premises. - 2. Damages of Ugx 24,000,000/= awarded as the amount the plaintiff $\mathsf{S}$ would have received as rental income for the period of 48 months, with interest payable at the rate of 10% per annum, from date of delivery of this ruling till payment in full. - 10 3. The defendants are to be notified of this order through any newspaper of wide circulation;

Costs of this suit awarded against the defendants.

Alexandra Nkonge Rugadya 15

### **Judge**

17^th June, 2024

Deliveed by amail<br>alleleg<br>17/6/2024