Kigundu and Another v Sekamwa and 6 Others (Civil Suit 875 of 2016) 2024 UGHCLD 144 (24 May 2024) PDF
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Summary
This is a Ugandan high court judgment from May 24, 2024, concerning a land dispute case, with details of the plaintiffs, defendants, issues, and resolution. The legal principles of land ownership, trespass, and occupancy are discussed.
Full Transcript
5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 875 OF 2016 1. PIO KIGGUNDU 2. ROBERT SSALI ::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS 10...
5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 875 OF 2016 1. PIO KIGGUNDU 2. ROBERT SSALI ::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS 10 VERSUS 1. SEKAMWA LIVINGSTONE 2. KIVIRI TOM 3. NADDAMBA FAISI 4. NYANZI STEVEN 15 5. NABUKEERA HADIJA 6. NAMUDDU MARGARET 7. PASTOR NAIGONO DAVID :::::::::::::::::::::::::::::::::::: DEFENDANTS BEFORE:LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA JUDGMENT 20 The plaintiffs brought this suit against the defendants for the following orders; a) Permanent injunction against the defendants for trespassing on land comprised in Kyadondo Block 99 plot 108 land at Kiti ‘B’. b) Demolition order for buildings and structures that have been erected on the plaintiff’s land. 25 c) Eviction orders d) General damages e) Costs of the suit Background The facts constituting the plaintiff’s cause of action are to the effect that the plaintiffs 30 are the registered proprietors of land comprised in Block 99 plot 108 land at Kiti ‘B’ (herein after referred to as the suit land). The plaintiffs went ahead to contend that in 1975, the plaintiffs’ father Mr. Mikaili Ssali bought the suit land and registered Page 1 of 29 5 the same in the names of his sons and their mother namely Pio Kiggundu, Robert Ssali and Stella Namayanja respectively as joint tenants. That unfortunately, Stella Namayanja died leaving behind two sons as the registered proprietors of the land. The plaintiffs went ahead to aver that the 1st plaintiff moved to America in 1993 and has not returned to Uganda since then. Furthermore, it was averred that between 10 1989- 1995 and 2008-2016, the 2nd plaintiff was living in Russia and India respectively to pursue further studies, however, upon the 2nd plaintiff’s return, the he discovered that the land was occupied by trespassers. The 2nd plaintiff averred that the defendants had constructed houses on the land and even sold part of it without the plaintiffs’ consent or authorization. 15 On the other hand, the defendants filed a joint written statement of defence wherein they denied every allegation contained in the plaint and they contended that the defendants have security of occupancy. Court directed the parties to file a joint scheduling memorandum, trial bundles and witness statements. At the scheduling, the parties agreed on the following issues: 20 1. Whether the defendants are trespassers on the suit land? 2. Whether the defendants claim an interest in the suit property as lawful bibanja holders. 3. Remedies The plaintiffs adduced evidence from three witnesses Robert Ssali (Pw1), Kalimala 25 Ssali (Pw2), Kivemba Edward (Pw3) while the defendant adduced evidence from five witness Sekamwa Livingstone (Dw1), Naddamba Fausa (Dw2), Nyanzi Stephen (Dw3), Yusuf Mukuye (Dw4) and Naigono David (Dw5). The parties also relied on documentary evidence which was marked and exhibited. The plaintiffs intend to rely on the following documents; Page 2 of 29 5 a) Certificate of title for West Buganda Block 99 Plot 108 Kyadondo marked as exhibit P.1 b) Decree arising from Chief Magistrate Court of Mengo Civil Suit No. 103 of 1988 marked as exhibit P.2 c) Warrant to the Bailiff to give possession of land arising from Chief Magistrate 10 Court of Mengo Civil Suit No. 103 of 1988 marked as exhibit P.3 d) Photographs of the suit land marked as exhibit P.4 On the other hand, the defendants relied on the following documents; a) Agreement for sale of a kibanja dated 22/10/1990 marked as exhibit D.1 b) Agreement for sale of a kibanja dated 22/10/1997 marked as exhibit D.2 15 c) Agreement for sale of a kibanja dated 20/8/2001 marked as exhibit D.3 d) A will dated 22/10/1990 marked as exhibit D.5 e) Power of attorney dated 4/11/2020 marked as exhibit D.6 f) Photograph of a house marked as exhibit D.7 g) Photograph of a graveyard marked as exhibit D.8 20 h) Busulu Tickets marked as exhibit D.9 i) Sale agreement between Patrick Kisitu and David Naigono dated 7/9/14 marked as exhibit D.10. Representation At trial, the plaintiffs were represented by the Counsel Kimanje Peter Nsibambi 25 while the defendants were represented by Counsel Kajeke Kenneth. Locus visit On the 22nd day of March 2024, while in the attendance of both Counsel, the 2 nd plaintiff, 1st, 3rd, 4th, 5th and the 6th defendants, Court visited locus in quo pursuant to Practice Direction No. 1 of 2007 which requires that courts handling land matters Page 3 of 29 5 should as so far as possible, interest themselves in physically visiting properties under dispute before pronouncing themselves on the proprietary rights of the parties. It is trite that visiting locus in quo is not mandatory but when a Judicial officer finds need to visit locus in quo, new evidence is not adduced at this stage. The purpose of visiting the locus in quo in a nutshell, is to clarify on evidence 10 already adduced in court thereby enabling the trial court to understand the evidence better. It is also intended to harness the physical aspects of the evidence in conveying and enhancing the meaning of oral testimony and therefore, must be limited to an inspection of the specific aspects of the case as canvassed during the oral testimony in court and testing the evidence on those points only. (See Odongo Ochama 15 Hussein versus Adul Rajabi HCCA No. 119 of 2018) The practice of visiting the locus in quo is also to check on the evidence by the witnesses and not to fill in gaps in their evidence for them or least court may run the risk of turning itself into a witness in the case. (See Fernades v Noroniha EA 506 & Nsibambi v Nankya HCB 81). 20 Burden and standard of proof in Civil Cases In civil matters like the instant case, the burden of proof rests on the plaintiff and in the counterclaim, on the counterclaimant. The standard of proof is on a balance of probabilities. According to Section 101(1) and (2) of the Evidence Act Cap.6 Laws of Uganda, 25 “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he or she asserts must prove that those facts exist”. Page 4 of 29 5 When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the Evidence Act goes on to provide that; “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side” and 10 Section 103 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 proof of that fact shall lie on any particular person”. With this background, I shall proceed to evaluate the evidence on record and resolve 15 the issues raised by the parties. Resolution of issues I intend to resolve the second issue first, and the issue of trespass will follow. Issue No 2: Whether the defendants claim an interest in the suit land as lawful bibanja holders 20 On this issue, Counsel for the plaintiffs submitted that the defendants are not lawful bibanja holders but rather trespassers on the suit land. Counsel argued that a kibanja owner can only be a lawful occupant under section 29 (1) (a) and (b) of the Land Act as a person by virtue of the repealed Busuulu and Envujjo law of 1928, Toro Land Lord and Tenant Law of 1937, the Ankole Landlord and Tenant Law of 1937 and a 25 person who entered the land with the consent of the registered owner and includes a purchaser. Counsel for the plaintiff further submitted that a kibanja holder is tenant in occupancy who must pay an annual nominal ground rent to the registered proprietor Page 5 of 29 5 under section 31 of the Land Act. According to Counsel for the plaintiffs, the plaintiffs got registered on the certificate of title in respect of the suit land in 1975 and no defendant has ever paid ground rent to them. Counsel invited this court to consider the case of Kasim Bagenda & Another versus Ssenyonga Ronald HCCS No. 755 of 2016 where Justice Namanya held that a kibanja is a form of land holding 10 or tenancy that is subject to the customs and traditions of the Baganda, characterized by the user rights and ownership of developments on land in perpetuity, subject to payment of annual rent (Busuulu) and correct social behavior, distinct and separate from ownership of the land on which the developments are made and in respect of which the user and occupancy rights exist. Counsel made reference to section 34 (1) 15 (3) (9) of the Land Act to the effect that the transfer or assignment of a kibanja from one holder to another to be valid under the law, the registered owner of the land must render his or her consent and the sale of a kibanja without the consent of the registered owner is null and void. Counsel made reference to the evidence of Dw3 ( Naddamba Faisi) who testified 20 that she bought her kibanja from the late Nambalirwa Dorothy who had bought her kibanja from the late George Stanly Kaweesa in 1961 and that there was sale agreement produced in court. According to Counsel for the plaintiff, Naddamba had no proof of payment for Busuulu and the plaintiffs did not consent to the purchase between Naddamba and Nambalirwa hence the said dealing was null and void under 25 section 34(3) of the Land Act. According to Counsel for the plaintiffs Dorothy Nambalirwa had no title to pass over and the legal rule of “nemo dat quod habet” applied in the said transaction to the effect that no one can give what they do not have. In respect of Dw4 (Nyanzi Stephen), Counsel for the plaintiffs submitted that there 30 was no proof that Dorothy Nambalirwa bought the suit kibanja from Stanley George Page 6 of 29 5 Kaweesa. According to Counsel for the plaintiffs since Nyanzi Stephen did not get the consent of the plaintiffs while buying the suit kibanja from Nambalirwa, the said transaction was null and void under section 34 (3) of the Land Act. Regarding the 5th defendant, Nabukeera Hadija, Counsel for the plaintiffs submitted that since Nabukeera did not have letters of administration in respect Juma Kawuzi’s 10 estate (Nabukeera’s late father) she was dealing with the suit land illegally and her actions amounted to intermeddling with the deceased’s estate. Counsel made reference to exhibit DE9 and submitted that exhibit DE9 (a) was not dated and did not state the village in respect of the kibanja. This was a busuulu ticket issued to Juma Kawuzi. Regarding exhibit DE9 (b) Counsel for the plaintiffs submitted that 15 the exhibit has two contradicting dates of 1962 and 1963. Counsel further argued that the Busssuli tickets of Kawuzi end in 1963 yet he died in 1993 and the there were no busuulu tickets issued by the plaintiffs. In respect of the 7th defendant (Naigono David), Counsel for the plaintiffs submitted that during cross examination Naiogo testified that he bought a portion of his kibanja 20 from Patick Kisitu in 2014 as per exhibit DE10 (a) and (b) however, there was no consent from the Land Lord approving the said purchase and this is contrary to section 34 (3) of the Land Act which made the transaction void abnitio. In reply, it was counsel for the defendants’ submission that the defendants hold a valid bibanja interests on the disputed land by virtue of Section 29 of the Land Act 25 (as amended) and as such enjoy security of occupancy as per Section 31 of the same Act. On the other hand, the plaintiff averred that the defendants are not kibanja owners but rather trespassers on the suit land. A lawful and bonafide occupants have been defined and provided for under Section 29 of the Land Act as amended as follows; Page 7 of 29 5 (1) ‘Lawful occupant” means; a) A person occupying land by virtue of the repealed; i. Busuulu and Envujjo law of 1928; ii. Toro Landlord and Tenant Law of 1937; iii. Ankole Landlord and Tenant Law 1937; 10 b) A person who entered the land with the consent of the registered owner and includes a purchaser; or c) A person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title. 15 (2) ‘Bonafide occupant’ means a person who before the coming into force of the Constitution; a) Had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or 20 b) Had been settled on land by the Government or an agent of the Government which may include a local authority. (5) Any person who has purchased or otherwise acquired the interest of the person qualified to be qualified to be a bonafide occupant under this section shall be taken to be a bonafide occupant for the purposes of this Act. 25 Section 31 (2) of the same Act stipulates that a tenant by occupancy is a tenant of a registered owner under such terms and conditions and under subsection3, the tenants by occupancy must pay annual nominal rent to the registered owner. Having cited the law on the definition of a lawful and bonafide occupant and a tenant by occupancy, I shall proceed to determine whether the defendant have any interest in 30 the suit land. Page 8 of 29 5 1st defendant Sekamwa Livingstone According to paragraph 7 of 1st defendant’s witness statement, he testified that his late mother Nyensi Nagonze inherited the suit land from her late mother Candida Namakula who had purchased the suit land from the Late Kaweesa Stanley (the plaintiffs’ predecessor in title). Dw1 went ahead to testify that Candida Namakula 10 died in 1962 and was buried on the suit land. During cross examination, Dw1 testified that he inherited his portion of the suit from his late mother Nyensi Nagonze who lived on the suit land until her demise, after which, the 1 st defendant started occupying the same in 2002. During the locus in quo visit, court discovered that the late Candida Namakula and 15 the Late Nyensi Nangonze as well as other children to the Late Candida Namakula were buried on the suit land and court marked their grave yards as point M and N according to the locus proceedings and sketch map. Dw1 testified that he inherited the suit land from his late mother according to exhibit DE5 and went ahead to take possession of the suit land in 1990 and has been living 20 and utilizing his parcel of the suit land until 2016 when a suit was instituted against him. During the locus in quo visit, court saw Dw1’s homestead as well the graveyards of his mother and grandmother. The evidence on record coupled with this Court’s observations at the locus in quo visit points to the fact that the Dw1’s family has been living and utilizing the suit 25 land since the 1960s and this conclusion is premised on the fact the late Candida and her children were buried on the suit land in 1962 as observed by court during the locus in quo visit. The 2nd plaintiff/ Pw1 testified in paragraphs 8 and 10 of his witness statement that between the years of 1989- 1995 and 2008- 2016, he was not resident in Uganda and neither was the 1st plaintiff who has been residing in USA to Page 9 of 29 5 date. This in itself points to the fact that the plaintiffs were not in possession of the suit land during these periods and as such had no knowledge about the occupancy of the suit land. It is my finding that 1 st defendant has a valid kibanja interest on the suit land. In the case of Kampala City Council & Anor versus National Housing and 10 Construction Corporation SCCA No. 2 of 2004, Justice Odoki (CJ as he then was), held that a bonafide occupant is one who not only occupied land but also utilized it for more than twelve years before the coming into force of the 1995 Constitution. Whereas, the 1st defendant started living on the suit land in 2002 after he inheriting the suit land from his late mother, the evidence on record 15 overwhelmingly points to the fact that the 1st defendant’s grandmother and mother were living and utilizing the suit land as far back as the 1960 hence proof of bonafide occupancy under section 29 (2) (a) of the Land Act. The predecessors of the 1 st defendant occupied and utilized the suit land for more than 12 years before the coming into force of the 1995 Constitution and under section 29 (5) of the Land Act, 20 the 1st defendant who inherited the land from bonafide occupants qualifies to be a bonafide occupant. Section 34 (2) of the Land Act (as amended) provides that a tenancy by occupancy may be inherited. This cited provision of the law validates the 1st defendant’s interest in the suit land since he inherited his kibanja interest from his Late Mother Nyensi 25 Nangonze who had also inherited the same from her Late grandmother Candida Namakula. Therefore, I find that the 1st defendant has a valid kibanja interest. Before I take leave of the 1st defendant’s interest, I must address the issue of contempt of court raised by counsel for the plaintiff. It was counsel’s submission that the 1st defendant’s actions of grading part of the land and proceeding to construct Page 10 of 29 5 a house made of 9 by 9 blocks at point G amounted to contempt of the temporary injunction order granted on 17th August 2017. According to the record of court, on the 17th day of August 2017, while in the presence of all the parties and their lawyers, it was agreed by consent that a temporary injunction doth issue restraining all the parties from constructing any new 10 houses on the suit land and selling their respective portions to any third parties. In the said consent, court further ordered that the status quo of brick laying and planting of seasonal crops on the suit land be maintained. In the case of Betty Kizito versus Dickson Nsubuga & Others Civil Application No. 25 of 2021, while citing the case of Sitenda Sebalu versus The Secretary 15 General of the East African Community Ref No. B of 2012 (East African Court of Justice), it set out the preconditions to be satisfied before a court can hold someone in contempt and these include; a. The existence of a lawful order b. Knowledge of the order 20 c. The contemnor’s ability to comply d. The potential contemnor’s failure to comply. In the present case, there is a valid temporary injunction which proves the existence of a lawful order hence the fulfillment of the first precondition. Secondly, as earlier stated, the record of court shows that on 17th August 2017, all 25 the parties to this case were present when the temporary injunction was being granted. Dw1 testified that the 9 by 9 block house under construction is owned by his sister. According to exhibit D.5, the suit kibanja was bequeathed to Dw1 and his sister Nabikolo Joyce. However, Nabikolo Joyce was neither a party to the application for the temporary injunction nor a party to this suit since she was not Page 11 of 29 5 added as a defendant. Whereas, there is a valid court order, the plaintiff has not adduced any evidence to prove that Nabikolo Joyce had knowledge about the existence of the temporary injunction. Therefore, this condition has not been satisfied. Regarding the third and fourth requirements, counsel for the plaintiff submitted that 10 the 1st defendant’s assertion that he graded part of suit land around 2001/2002 is totally false since the act of grading the land was done recently. During the locus proceedings, Dw1 admitted that he had graded part of his kibanja in 2002 because it had gullies and that he has since planted maize on the same. Dw1 went ahead to testify that the new 9 by 9 grey block house under construction at point ‘G’ belongs 15 to his sister and that construction started this year in 2024. Whereas, counsel for the plaintiff pointed to the fact that the 1st defendant only recently graded the suit land after the grant of the temporary injunction and not in 2002 as stated by Dw1, the plaintiffs did not adduce any cogent evidence to rebut the 1st defendant’s assertion. It is a common principle of law that he who alleges 20 must prove. Therefore, the burden of proof lies on the plaintiffs to prove that the suit land was recently graded so as to prove contempt of court. Secondly, Dw1 testified that the 9 by 9 block house at point G which is under construction belongs to his sister. According to exhibit D.5, which is Nyense Nagonzi’s will, the deceased bequeathed her kibanja to her two children Nabikolo 25 Joyce and Ssekamwa Livingstone (1st defendant). According to the pleadings on court record, the 1st defendant’s sister Nabikolo Joyce is not a party to the proceedings in court. That notwithstanding, according to the locus in quo visit attendance list, Nabikolo Joyce was present at the locus in quo visit which means that she has knowledge of Page 12 of 29 5 this suit however, this does not in any way prove that she had knowledge about the existence of the temporary injunction before she started constructing her house on the suit land. Therefore, the 1st defendant’s sister cannot be found to be in contempt of a court order issued in a case where she is neither a party nor has knowledge about its existence. Therefore, the plaintiff’s argument that the 1st defendant is in contempt 10 of the temporary injunction has not been proved. 3rd defendant Naddamba Faisi The 3rd defendant who adduced evidence as Dw2 deposed in paragraph 3 of her witness statement that she bought her kibanja on the suit land from a one Dorothy Nambalirwa in 1988 who had bought the same from the original registered proprietor 15 Kawesa Stanley in 1961. Dw1 further testified that after purchase, she took possession of the same in 1993 and peacefully lived on the suit kibanja till 2016 when the plaintiff instituted this suit. In paragraph 4 of her witness statement, Dw2 testified that she lost her sale and purchase agreement when she was shifting from one house to another. 20 At the locus in quo visit, Dw2 testified that she acquired her kibanja in 1988 and started living on the same in 1993. She further testified that the Late Dorothy showed her a one Mpanga as her landlord, however she never saw any certificate of title. Dw2 went ahead to testify that she only came to know of the landlord in 2002 when he took her to the L.C.I. 25 At the locus in quo visit, the court observed the 3rd defendant’s home was marked as point ‘R’ in the locus in quo notes. Counsel for the plaintiffs submitted that at the time of purchase of the suit kibanja by the 3rd defendant, the plaintiffs and their late mother Stella Namayanja were the mailo registered owners of the suit land. Counsel went ahead to submit that the plaintiffs did not consent to the sell or purchase of the Page 13 of 29 5 suit land as the land lords contrary to Section 34 (3) of the Land Act which makes the transaction void. It is the evidence of the 3rd defendant that she purchased the suit land from Dorothy Nambalirwa in 1988. According to exhibit P.1, the plaintiffs were registered on the suit land on 1st October 1975 under instrument number KLA79103 at 2:35pm. 10 Therefore, I agree with counsel for the plaintiff’s submission that by the time Dw2 purchased her kibanja, the plaintiffs were the registered proprietors of the suit land. However, it should be noted that the provisions of Section 34 (3) of the Land Act do not apply to the transaction between the 3rd defendant and Dorothy Nambalirwa. The requirement to seek for the landlord’s consent before a tenant by occupancy can 15 conduct any transactions provided for under Section 34 (1) of the Land Act arose after the commencement of the Land Act on 2nd July 1998. It is trite that the law does not have retrospective application and enforcement. In the case of Uganda Revenue Authority versus Whistleblower REF TID 170819150 High Court Civil Appeal No. 30 of 2021, Justice Stephen Mubiru held that; 20 “It has been said that every statute which takes away or impairs vested rights acquired under existing law, or creates a new obligation or attaches a new disability in respect of transactions already past must be presumed to be intended not to have a retrospective effect. The common law position is also reflected in 25 Section 13 (2) (c) of the Interpretation Act which provides that where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed”. Page 14 of 29 5 The Honourable Judge went ahead to state that; “the law does not operate retrospectively as to affect the rights and obligations which arose pre-enactment.’ I am persuaded by the Honorable Judge’s findings on this principle. The obligation to seek the consent of a land lord before a tenant by occupancy can transact in respect of his or her land is imposed on transactions that commenced after 2nd July 1998. 10 Imposing this said obligation on any concluded transactions of this nature entered into before the commencement of Land Act would amount to retrospective application of the law. Since the 3rd defendant’s purchase of her kibanja from the late Dorothy Nambalirwa was concluded in 1988 before the commencement of the current Land Act of 1998, the obligations imposed on a tenant by occupancy under 15 Section 34 (3) of the Land Act do not apply to the 3rd defendant. This court observed the 3rd defendant had a house on the suit land and it was evident that she has been in occupation of the suit kibanja for an extended period of time and the plaintiffs never adduced any evidence to rebut the 3 rd defendant’s longevity of occupation on the suit kibanja but rather queried the issue of seeking for consent 20 which I have already resolved. The 3rd defendant’s predecessor in title the late Dorothy Nambalirwa lived and occupied the suit kibanja for over 12 years prior to the commencement of the 1995 Constitution of Uganda hence the 3rd defendant has a valid kibanja interest on the suit land. In addition, Counsel for the plaintiffs referred to the legal principle of “nemo dat 25 quod habet” to argue that Dorothy Nambalirwa had no title in respect of the suit land and therefore, she could not pass title to Naddamba Faisi (Dw3). It should be noted that the legal rule of “nemo dat quod habet” does not apply to registered land under the Torrens System. According to the Supreme decision in the case of Patrick Mukasa versus Andrew Douglas Kanyike SCCA No. 13 of 2022, it was held that 30 the nemo dat quod non habet rule is not applicable under the Torrens System of Page 15 of 29 5 Registration. According to the lead judgment of Prof. Lillian Tibatemwa- Ekirikubinza (JSC), the said rule is limited to sale of goods transactions and not extended to land transfers. The said legal rule is to the effect that the transferor of goods cannot pass a better title than they possess. According to the Supreme Court of Uganda, the said legal rule is not applicable in land transactions due to the legal 10 principle of a bonafide purchaser for value without notice. The bonafide purchaser for value without notice principle negates the nemo dat rule as the purchaser gave value in good faith and without notice of the defect in title and can acquire title from a person whose title is defective. Given the above analysis, Naddamba has an interest as a bonafide occupant on the suit land. 15 4th defendant Nyanzi Steven The 4th defendant testified in paragraph 2 of his witness statement that his Late grandmother Dorothy Nambalirwa donated to him one the bibanja’s on the suit land on 22nd October 1990 and the same is evidenced by exhibit D.1. In paragraph 3 of the same witness statement, the 4th defendant went ahead to testify that he 20 subsequently paid his grandmother some money for the said kibanja on 22nd October 1997 and the same was evidenced by exhibit D.2. During cross examination, Dw3 testified that his grandmother Dorothy Nambalirwa had occupied the suit kibanja since 1961 when the same was bought from the Late Stanely George Kaweesa. The 4th defendant also testified that he only discovered 25 that the plaintiffs were his landlords after this suit was instituted. In addition, the 4 th defendant testified that he has never paid busuulu to anyone since his grandmother had never informed him about any landlord, however, during re-examination, Dw3 testified that he is willing to pay busuulu since his landlords are now known to him. Page 16 of 29 5 The plaintiffs never adduced any evidence to rebut the late Dorothy Nambalirwa’s kibanja interest in the suit land. Counsel for the plaintiff submitted that plaintiffs were the landlords of the suit land, which information the Late Dorothy Nambalirwa ought to have known since in exhibit D.1, the Late Dorothy Nambalirwa stated that she would take the 4th defendant to see the landlord. 10 Furthermore, counsel for the plaintiff submitted that when the 4 th defendant was paying for the kibanja in 1997, he ought to have taken steps to look for the landlord or even inquire from the local authorities who always know the landlords in the area under their jurisdiction. I find Counsel’s arguments to be unfounded. Firstly, it was the 2 nd plaintiff’s 15 testimony in his witness statement under paragraphs 8, 9 and 10 that between the periods of 1989-1995 and 2008-2016, he was not living in Uganda. In addition, the 2nd defendant also testified that his brother, the 1st plaintiff left Uganda in 1993 for the United States of America and has never returned to date. In paragraph 10 of his witness statement, the 2nd plaintiff testified that he returned to Uganda in 2006 and 20 later left in 2008 to 2016. This means that at the time the 4th defendant acquired his kibanja interest from his grandmother in 1990 and subsequently in 1997 when he paid his grandmother money for the said kibanja, the plaintiffs were not resident in Uganda and neither were they in possession of the suit land. One then wonders how the plaintiffs expected the 25 defendants to have knowledge about the former’s existence or even seek their consent. As earlier stated, the law does not operate retrospectively. The 4 th defendant purchased his kibanja interest in 1997 before the commencement of the Land Act and as such the issue of consent from the landlord before purchase of the kibanja Page 17 of 29 5 interest does not apply. Therefore, the 4th defendant has a valid kibanja interest in the suit land. 5th defendant Nabukeera Hadija In paragraph 2 of the Usufu Mukuye’s witness statement (Dw4), he testified that he is the holder of powers of attorney for Nabukeera Hadija (the 5th defendant) who is 10 a daughter to the late Juma Kawuzi. During cross examination, Dw4 went ahead to testify that the 5th defendant- Nabukeera Hadija is his mother and that she is a daughter to the Late Juma Kawuzi who owned a kibanja on the suit land. Dw4 further testified in court that the late Juma Kawuzi bought his kibanja in 1935 from the late Stanley Kaweesa and he presented busuulu tickets which were 15 exhibited as D.9. In addition, Dw4 also testified that the 5th defendant owns the suit kibanja as a beneficiary of the late Juma Kawuzi’s estate and the only surviving child of the late Kawuzi. In paragraph 5, Dw4 went ahead to testify that the Late Kawuzi owned a house on the suit kibanja and was buried on suit kibanja in 1993 and the same was evidenced 20 by exhibit D.8 which is a photograph of the Late Kawuzi’s grave. This fact was confirmed by this court during the locus in quo visit where court observed the Late Juma Kawuzi’s mud and wattle house was marked point ‘C’ as well as the late Juma Kawuzi’s grave yard and the graves of his other relatives. During the locus in quo proceedings, Dw4 testified that his late grandfather Juma 25 Kawuzi built the mud and wattle house at point ‘C’ in 1952 and the 5 th defendant has been living in the said house to date. It was counsel for the plaintiff’s submission that the 5 th defendant sold part of the late Juma Kawuzi’s land to 3rd parties without first acquiring letters of administration Page 18 of 29 5 to the late kawuzi’s estate which contravenes Section 268 of the Succession Amendment Act. Section 270 of the Succession Act stipulates that the power to dispose of the estate of the deceased is vested in an administrator or an executor. In the instant case, the plaintiffs contended that the 5th defendant intermeddled in the estate of the late Juma 10 Kawuzi by selling part of his property contrary to Section 268 of the Succession Act. Dw4 testified that the 5th defendant owns the suit kibanja by virtue of being the only surviving beneficiary of the late Kawuzi. Whereas, Dw4 testified that he did not have any documentary evidence to prove that the Late Juma Kawuzi had donated the suit land to his daughter the 5 th defendant, 15 during the locus in quo proceedings, this court witnessed and observed that the 5 th defendant has been living in the late Juma Kawuzi’s house. Furthermore, the plaintiff never rebutted or refuted the fact that the 5th defendant is the only surviving child of the late Kawuzi and has been living at point “C” for some time. The 5th defendant never denied selling off part of her late father’s kibanja without 20 letters of administration. During cross examination, Dw4 testified that he never saw his grandfather’s will. Furthermore, during the locus proceedings Dw4 testified that he knew some of the people whom the 5th defendant sold to part of the Late Kawuzi’s kibanja. It is true that the alleged will of the late Kawuzi was not exhibited in court, however, 25 as earlier stated, court observed at the locus in quo proceedings that the 5th defendant lives on the suit land and the 2nd plaintiff equally confirmed to court that the mud and wattle house belongs to the 5th defendant. Secondly, Dw4 adduced busuulu tickets and poll tickets as proof of payment of ground rent. Counsel for the plaintiff submitted that the said tickets were not clear Page 19 of 29 5 since they exhibit D.9 (a) was not dated and exhibit D.9 (b) had two contradicting years of 1962 and 1963. Furthermore, counsel submitted that the tickets adduced in court stopped at the year of 1963 and yet the Late Juma Kawuzi allegedly died in the year of 1993. Section 31 (3) of the Land Act stipulates that a tenant by occupancy shall pay the 10 registered owner an annual nominal ground rent. In the instant case, Dw4 adduced exhibit D.9 (a) which is a busuulu payment receipt in the names of Juma Kawuzi as busuulu payment for the year of 1954 serial number 119 dated 1954. Similarly, Dw4 also exhibited two other busuulu payment tickets and the same were exhibited and marked as D.9 (c) and D.9 (d). I find that these tickets are proof that the Late Juma 15 Kawuzi used to pay ground rent to his landlord Kawesa Stanley the plaintiffs’ predecessor in title. Whereas, only a few busuulu tickets were exhibited, the same are proof of payment of ground rent as well as proof that the Late Juma Kawuzi who is the 5th defendant’s late father owned a kibanja interest on the suit land. Since it is not a refuted fact that the 5th defendant is a daughter of the late Juma 20 Kawuzi, secondly, that she has been living and utilizing the suit kibanja and coupled with the fact that the 5th defendant’s late father Juma Kawuzi and the other relatives lived, died and are buried on the suit kibanja, this confirms that the 5 th defendant and her predecessors in title have been in occupation of the suit kibanja for over 12 years before the coming into force of the 1995 Constitution of the Republic of Uganda. 25 Therefore, the 5th defendant has a valid kibanja interest in the suit land as a bonafide occupant under section 29 (2) of the Land Act. 7th defendant Pastor Naigono David In paragraphs 2 and 3 of his witness statement, the 7th defendant testified that on 7th September 2014, he bought his suit kibanja from Patrick Kisitu son of Edward Kisitu Page 20 of 29 5 who had equally purchased from the Late Juma Kawuzi and the same was evidenced by exhibit D10 (a) and (b). Unlike the other defendants, the 7th defendant’s land transaction on the suit kibanja is governed by the Land Act of 1998 since he purchased part of the suit kibanja after promulgation of the Land Act in 1998. Section 34 of the Land Act governs 10 transactions with tenants by occupancy. Section 34 (3) of the Land Act as amended provides that; ‘prior to undertaking any transaction to which subsection (1) refers, the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his consent to the transaction.’ 15 (emphasis on the underlined) Section 34 (9) of the same Act stipulates that; “No transaction to which this section applies shall be valid and effective to pass any interest in land if it is undertaken without a consent as provided in this section and the recorder shall not make any entry 20 on the record of any such transaction in respect of which there is no consent”. During cross examination, the 7th defendant testified that he did not bother to find out about the real owners of the suit kibanja before purchase. As earlier decided, the late Juma Kawuzi owned a kibanja interest on the suit which he sold to the late 25 Edward Kisitu who in turn allegedly bequeathed to his son Patrick Kisitu who finally sold to the 7th defendant according to exhibit D.10. Therefore, the interest vested in the 7th is one of a tenant by occupancy or a kibanja on registered land and as such this transaction ought to have been conducted and concluded in accordance with Section 34 of the Land Act. Page 21 of 29 5 It is very important to note that the provisions of Section 34 (3) of the Land Act are couched in mandatory terms which means that it is essential that the consent of a landlord be sought be a tenant by occupancy before conducting and concluding any transaction in respect of a kibanja on registered land. In the instant case, the 7th defendant admitted that he did not bother to find or locate the landlords before he 10 purchased the suit kibanja which is proof that the 7th defendant flouted his obligation. It is a settled principle of law that before selling or purchasing a kibanja on titled land, the consent if the landlord is mandatory. (See Muluta Joseph versus Katama Sylvano S.C.C.A No. 11 of 1999) The 7th defendant had the duty to take all essential steps of obtaining the consent of 15 the plaintiffs as the registered proprietors and in this case the 7 th defendant out rightly admitted that he did not take any diligent steps to seek the consent of the plaintiffs and the landlords before he proceeded to purchase the suit kibanja from a one Kisitu Patrick. These actions are not in tandem with the provisions of Section 34 (3) of the Land Act and as such the transaction arising out of exhibit D.10 did not transfer any 20 valid kibanja kibanja interest to the 7th defendant. Therefore, I find that the 7th defendant does not hold a valid kibanja interest on the suit land. Issue No.1: Whether the defendants are trespassers on the suit property. The concept of trespass to land has been defined and discussed in a plethora of cases. 25 In the case of Justine E M N Lutaaya versus Sterling; Civil Eng. Appeal No.11 of 2002; the Supreme Court held that; “Trespass to land occurs when a person makes an unauthorized entry upon another’s land and thereby interfering with another’s person lawful possession of the land”. Page 22 of 29 5 In the case of Adrabo Stanley versus Madira Jimmy HCCS No. 24 of 2013, the Hon. Justice Stephen Mubiru stated that; “Trespass is an unlawful interference with possession of property. It is an invasion of the interest in the exclusive possession of land, as by entry upon it. It is an invasion affecting an interest in the exclusive possession of property. 10 The cause of action for trespass is designed to protect possessory, not necessarily ownership, interests in land from unlawful interference. Therefore, only one whose right to possession has been violated may technically maintain an action for trespass.” The gist of an action for trespass to land is violation of possession, and not a 15 challenge to title. The possession ought to be actual or constructive and the plaintiff must demonstrate his or her exclusive possession and control of the land. In the case of Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd C.A.C.A No. 4 of 1987 as cited by counsel for the plaintiff, the Court of Appeal laid out the conditions to be satisfied in order to successfully prove trespass to land. 20 These include; i. That the disputed land belonged to the plaintiff ii. That the defendant entered upon the disputed land iii. That the entry was unlawful or that the defendant had no claim of right or interest in the disputed land. 25 That the disputed land belonged to the plaintiff Section 59 of the Registration of Titles Act provide that; “No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the 30 registration of the certificate, and every certificate of title issued under this Page 23 of 29 5 Act shall be received in all courts as evidence of the particulars set forth in the certificate and of the entry of the certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or 10 interest or has that power. (Emphasis on the underlined part)” In the instant case, it is not in dispute that the plaintiffs are the registered proprietors of the suit land. According to exhibit P.1, the plaintiffs together with their late mother Stella Namayanja were registered on the suit on 1st October 1975 via instrument number KLA79103 at 2:35pm. Therefore, this element has been proved. 15 That the defendant entered upon the disputed land During the locus in quo visit, court observed that all the defendants are currently occupying different parts of the disputed or suit land. During the locus in quo proceedings, the 1st defendant testified that he started occupying the suit land in 2002 after his late mother’s death. The 1st defendant also testified that his grandmother 20 Candida Namakula who bought the suit kibanja was buried on the suit land in 1962 at point ‘M’ as per the locus notes and his grandmother’s other children were buried at point ‘N’. Dw1 went ahead to testify that his kibanja measures approximately 4 ½ acres and spans from point ‘L’ which is where his late mother Nyense’s house was located 25 before he demolished the same and built the house that court found at the locus in quo proceedings up to the wetland. All these facts were observed by Court at the locus in quo visit hence proof that the 1st defendant is occupying the disputed land. The 3rd defendant’s house was marked by court as point ‘R’ during the locus in quo proceedings. The 3rd defendant testified during the visit by court that she bought the Page 24 of 29 5 suit kibanja from Dorothy Nambalirwa in 1988 and has been living on the suit kibanja since 1993. Court observed the 3rd defendant’s house hence proof that the 3rd defendant is living on the disputed land. In regards to the 4th defendant, during the locus in quo visit proceedings, the 4 th defendant testified that he owns a 100ft by 100ft kibanja on the suit land which was 10 donated to him by his grandmother Dorothy Nambalirwa in 1990. At the locus visit, court observed the 4th defendant’s house and the same was marked point ‘Q’. The same is an incomplete house. The 4th defendant told court that he halted the building plans after the temporary injunction was passed. Therefore, I am convinced that the 4th defendant is occupying the disputed land. 15 The 5th defendant who was represented by her lawful attorney Usufu Mukuye (Dw4) in the court proceedings as well as the locus in quo visit proceedings, showed court the house at point ‘C’ being the 5th defendant’s late father Juma Kawuzi’s mud and wattle house. Dw4 went ahead to testify that the same house is being occupied by his mother (the 5th defendant) which fact was equally confirmed by the 2 nd plaintiff 20 in his testimony at the locus visit. Therefore, I am convinced that the 5th defendant is also occupying the suit land. Similarly, the 7th defendant was also present at the locus in quo visit proceedings. the 7th defendant showed court his house at point ‘F’ and as such I am equally convinced that the 7th defendant also occupying a part of the disputed land. 25 Therefore, this element has also been satisfied. That the entry was unlawful or that the defendant had no claim of right or interest in the disputed land It must be reiterated that when determining trespass action, it is vital that the plaintiff proves that he or she has been in possession of the suit land. In the case of Kaggwa Page 25 of 29 5 Micheal versus Apire John HCCA No. 126 of 2019, the Hon. Justice Stephen Mubiru stated that; “Possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others but persons with a better title. Possession of land is in itself a good title against anyone who cannot 10 show a prior occupation and therefore better right to possession (see Asher v. Whitlock (1865) LR 1 QB 1). Possessory title is not based on a documentary title but on the exclusive occupation of the land (or receipt of rent from the land) for a period of time.” I am persuaded by Justice Mubiru’s findings in Adrabo Stanley versus Madira 15 Jimmy HCCS No. 24 of 2013, Justice Mubiru where he stated that, “Trespass when pleaded as part of a suit for recovery of land, requires the plaintiff to prove either actual physical possession or constructive possession, usually through holding legal title. There must have been either an actual possession by the plaintiff at the time 20 when the trespass was committed, either by himself or by his authorized representative, or a constructive possession with the lands unoccupied and no adverse possession. In essence, an action for recovery of land is founded on trespass involving a wrongful dispossession.” In the instant case, during cross examination, Pw1 testified that pursuant to exhibit 25 P.2 and P.3, once the suit vide Chief Magistrate Court of Mengo Civil Suit No. 103 of 1988 was concluded, court ordered William Kibuka to grant vacant possession to the plaintiffs and their late mother Stella Namayanja. Pw1 further testified that he was informed by the local authorities that the land was vacant and it was only occupied by banana plantations with no houses and structures. This in essence points 30 to the fact that the suit land was actually occupied since there were plantations. Furthermore, Pw1 also confirmed to court in his testimony that during the periods of 1989- 1995 and 2008-2016, he was not living in Uganda and neither was the 1 st plaintiff who has been living in USA to-date. This means that the plaintiffs were not in occupation of the suit land till 2016. At the locus in quo visit proceedings, the 2nd Page 26 of 29 5 plaintiff testified that he is occupation of part of suit land wherein his brother built a house and he has some plantations on the same, however, the 2nd plaintiff could not point out the acreage of the land that the plaintiffs are occupying to date. It is Counsel for the plaintiffs’ submission that the defendants entered onto the suit property when the 1st and 2nd plaintiffs had left the Country. On the other hand, 10 Counsel for the defendants submitted that it is not in dispute that the plaintiffs are the registered proprietors of the suit land having purchased the same from the late Kaweesi George Stanley, nonetheless, the defendants pleaded that their entry and occupancy of the suit land is lawful. Counsel went ahead to submit that all defendants acquired their bibanja from the former owners who acquired the same in 15 the 1960s. As earlier decided in the previous issue, the 1st, 3rd, 4th and 5th defendants and their predecessors in title have been in occupation of the suit under section 29 (2) of the Land Act. Therefore, the 1st, 3rd, 4th and 5th defendants hold valid bibanja interests on the plaintiffs’ registered title and as such they have lawful possession of their suit 20 land. In the premises, I find that the 1st, 3rd, 4th and 5th defendants lawfully entered upon the suit land. In conclusion, I am convinced that the 1st, 3rd, 4th and 5th defendant entered the suit land lawfully and hence not trespassers on the suit land. The 1 st, 3rd, 4th and 5th defendants testified that the came to know the plaintiffs are the registered proprietors 25 of the suit land from court hence their landlords, they must start paying the required annual nominal ground rent to them as tenants by occupancy under the Land Act. On the other hand, as previously resolved, the 7th defendant does not hold a valid kibanja interest on the suit land. The 7th defendant entered upon the suit kibanja without conducting any due diligence but most importantly without seeking for the Page 27 of 29 5 consent of the plaintiffs who are the landlords contrary to Section 34 (3) of the Land Act as amended. Therefore, it is my finding that the 7th defendant entered upon the suit land unlawfully to the detriment of the plaintiffs’ interest as the land lords or the registered proprietors of the suit land. To this end I make the following orders; 10 a) This suit partially succeeds b) The suit is dismissed as against the 1st, 3rd, 4th and 5th defendants only. c) The 1st, 3rd, 4th and 5th defendants hold valid kibanja interests on the suit land comprised in Kyadondo Block 99 plot 108 land at Kiti “B”. d) The 7th defendant is a trespasser on the plaintiff land comprised in Kyadondo 15 Block 99 plot 108 land at Kiti “B”. e) A permanent injunction is hereby issued restraining the 7th defendant and all his agents, servants and successors in title from further trespassing on land comprised in Kyadondo Block 99 plot 108 land at Kiti “B”. f) The 7th defendant is hereby ordered to vacate the suit land comprised in 20 Kyadondo Block 99 plot 108 land at Kiti “B” within a period of 90 (ninety days) from the date of judgement. g) The plaintiffs are ordered to pay costs to the 1st, 3rd, 4th and 5th defendants. h) A permanent injunction is hereby issued restraining the 1 st, 3rd, 4th and 5th defendants from dealing with the suit land without the consent of registered 25 proprietors. i) Each party to bear their own costs. I so order. Page 28 of 29 5 Judgment delivered at High Court, Land Division via ECCMIS this 24th day of May 2024. 10 Immaculate Busingye Byaruhanga Judge 15 20 Page 29 of 29