Achieng and 2 Others v Nkubi and Another (Civil Suit No. 497 of 2011) [2022] UGHCLD 125 (6 June 2022)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# CIVIL SUIT NO. 497 OF 2011

- 1. MARY ACHIENG - 2. OKELO FRANCIS - 3. OTTO DENIS.................................... **DEFENDANTS**

### 10

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### **VERSUS**

- 1. ALI NKUBI - 2. THE REGISTERED TRUSTEES OF OF NAKASONGOLA MUSLIM COMMUNITY....................................

# Before: Lady Justice Alexandra Nkonge Rugadya

## **JUDGMENT:**

#### 20 Introduction:

The plaintiffs filed this suit in 2015. The suit was however dismissed for want of prosecution. This court ordered that the hearing proceeds with the counterclaim which had been filed by the defendants, Mr. Ali Nkumbi as the 1st defendant, and the Registered Trustees if Nakasongola Muslim Community.

- 25 In the counterclaim, the said defendants sought the following orders: - 1) A declaration that all the piece of land situate in **Buruli Block 116, plot 2, land** at Sabagabo, Kyalubanga Nakasongola district (suit land) belong to the 2<sup>nd</sup> *counter plaintiffs;*

- *2) An eviction order to issue against the counter defendants.* - 3) A permanent injunction restraining the counter defendants and/or their agents from interfering with the 2<sup>nd</sup> counter plaintiffs' land Kyalubanga, Nakasonora district. - 4) General damages, interest and costs of this suit.

### Issues:

- 1) Whether the $2^{nd}$ counter plaintiffs' acquisition of the suit land from the 1<sup>st</sup> counter plaintiffs was unlawful; - 10

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- 2) Whether the counter defendants are trespassers on the suit land: - 3) Whether the counter plaintiffs are entitled to the reliefs sought.

# **Representation:**

The counter plaintiffs were represented by **M/s Senkumba & Co. Advocates.** The counter 15 defendants who were represented during the trial by M/s Ambrose Tebyasa & Co. Advocates did not file any submissions.

### **Analysis of the evidence:**

### Issue No. 1: Whether the $2^{nd}$ counter plaintiffs' acquisition of the suit land from the 1<sup>st</sup> 20 counter plaintiffs was unlawful;

By virtue of section 101 (1) of Evidence Act, Cap. 6, whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/she asserts must prove that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 at page 78).

25 The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

The counter plaintiffs led their evidence through two witnesses. **Pw1** Mukasa Abubakari, the chairman of the Registered Trustees of Nakasongola Muslim Community, the 2<sup>nd</sup> counter 30 plaintiff.

Julian

# Consld er(ttlon bq court:

The dispute is centered on the qucstion as to how each party is alleging to have acqlrired ownership of the land in dispute. The c/plaintiffs on their part contended that the Muslim community acquired the 25 acres of land as a gtfl" interuiuos.

5 This was confirmed by Pw2, Mr. AIi Nkubi, the 1st counter plaintiff who on account of his advanced age his evidencc was taken on 8h l'ebrua4i, 2019 al Koojo, Luwero district, as commissioned by court.

Pu2, a son to the late Scmairi Kumcntcta appcars on thc ccrtificatc of title tendered in court as PExh 4 as the first registered proprietor of the disputed land. Ilis name was entercd on the title on 25th January, 2OO5 as thc administrator of his father's cslatc, under AC No. 95 of 2OO2.

It was aI agreed fact therefore that the 2"d counter plaintiff is the current registered owner of the suit land as confirmed by the said certificate of titlc for thc suit property. According to Prr2, his father Semairi Kumenteta who was the former registercd owner of one square mile originally comprised in Burull Block 776, plot I, donatcd part of thc land measuring 25 acres to thc

Muslim Community of Nakasongola lluruli; and constructcd thcreon thc first mosque, with his son Juma Mukiibi as thc first Imam of lhc mosque. 15

A total of60 acres of land had bcen bcqucathcd to him which included thc 25 acres gifted to the Muslim community in 1938 wbich, Pw2, following a survcy conducted in 1987 had mutated off, obtained title which he had handcd over Pu)7, as thc Chairman of thc 2n,r c/plaintiff.

In their reply to thc counterclaim thc counter defendants did not lead evidence to challenge the said claim. I{owever in their reply to the counterclaim, paragraph 5 (fl thereof, they claimed that the late Zeverio Lupol their predecessor in title had given a small portion of the kibanja to one Musa Lusel to put up the mosquc. 20

25 They accused the counter plaintiffs of conspiring to secure the title without giving them prior notice yet at all material times and for over a period of 60 years they were in occupation as the lau.ful and rightful owners of thcir unregistered intcrcst in the land and as such were entitled to protection as L'ond jfide occupants.

# Andlgsis oJ the lano:

The principles undcr which a gift takcs cffcct arc wcll articulatcd in a string of authorities. Suffice to state that a gifl interuiuos lakcs cffcct whcrc thcrc is intcntion to give thc gift. The donor must deliver thc property and thc donnc must accept thc gift- 0vorah lvassozi & Anor vs George Wtlll(rm K(:lule HCT-CA No. 5 of 2072). 30

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Furthermore, the gencral principlc undcr section 59 of thc RTA is that a ccrtificate of title is conclusive cvidence of ownership and scrves as an absolute bar and estoppel to an action of ejectment or recovery of any land. (Refer also S. 64 (7) RTAL As such, a registered proprietor is protected from ejection, save where one is able to prove fraud against such owner. lsectlon 776

5 (c).)

nFraud" was defined in thc case of FJ K Zaabue vs. Orlent B.rnk & 5 Others: SCCA No, 4 of 2006 (at page 28l. ln thc lead.judgmont, Katurebe JSC las hc thcn was) rclying on the dcfinition of "fraud" in Black's Law Dtctionqry (6th Edltton) dt page 660 fraud was defined 10 mean an act of dishonesty; intentional perversion of truth for purposcs of inducing another in reliancc upon it to part with somc valuablc thing bclonging to him or to surrcndcr a lcgal right.

An allegation of fraud against the rcgistcred proprietor is so grave and vitiates a land title of a registered proprietor. lt must thercforc bc strictly pleadcd and proved, beyond the balance of probabilities, a standard gencrally applied in civil mattcrs. (Kanpo.la. Bottlers Ltd.. Vs

#### D(rm.rnla.co M Ltd (supro.)), 1"5

Among the prayers sought however by the counter defcndants as noted by court, cancellation of the title was not included. They led their evidence through five (5) witnesses to prove their claim as equitablc owncrs of thc kibarya.

By joint agreement of both learncd counsel, the sworn cvidcnce of the last witness, Irars, Mr. Ojok John Onyabo, aged 68 ycars who had becn the area Chairman since 2001, was taken during the locus visit. 20

Dus7, Mary Achieng born 1941 aged 78 ycars, a daughter of Lupol Zevcrio was a key witness in this suit. She told court that hcr fathcr who had 7 childrcn some of thcm deceased, had bought the land from one Musa alias Adam tsoda and had passed on in 1960 when she was only 20 years, buried on tl:,e kibanja comprising part of the suit land.

Furthermore, that she has since lived on the kibanja whic}l was an inheritalce from her late father. Thc family has over the years utilized it for cultivation, rcsidence, burial of their deceased relatives; and deriving incomc from brick making.

As regards to how the family had acquired thc intercst, in thc plaint dismissed by this court, the counter defendants relied on a sale agrcemcnt between Boda, which was marked as PExh 5. None of the witnesses to that agreement howcvcr was called in to testify and reasons as to why were not given. The pcrson who had bccn having custody of the sirlc agreement was also not known. 30

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It was besides her evidence that hcr father never showcd her any sale agreement. She also testified that this was kabaka's land and it is to him that they used to pay busuulu. None of the busuulu receipts were availed to court to prove that claim.

5 She also in her evidcnce denied cver selling any part of that lald which from her own testimony had always had a mosque, from as early as 1954 when she was still young. According to paragraph 4 (a) of her statement, at all materia-l times her family had always been the rightful owners thereof, and had Iived on that land without any interruption.

Although she could not deny the fact that the mosque had always been on the land she claimed that she only saw the Moslcms in 2009, after they had secured the title. Furthermore, that Okeny the heir to her father died in 198O aJtcr distributing thc property to the beneficiaries. The said distribution had becn made during thc funeral rites of their father.

DurI while admitting that she did not know thc actual sizc of the kibanja r,or,etheless estimated that each child of Lupol got an acre, making a total area of 9 acres, distributed among the 7 children and from hcr own strctch of imagination an acrc of land at that timc was bigger than

what it is today. 15

The size given in her evidence however did not tally with the size as stated in the c/defendants' reply to the counter claim where they claimed a total of 12 acres, nearly a half of the total land as registered in the title.

The witness also told court that it was her father who had given one Musa Luche a portion of that land on which the mosque had been built, which claim could not however be verified by this court since it lacked proper backing. DurI's evidence a\_lso fell short of explaining how without a will and without letters of administration the estate of her father could have been distributed among the beneficiarics. 20

Du2, Mr. Otto Dennis, thc 3^t defendant, born in 1979, agcd,40 ycars staled that he was <sup>a</sup> grarrdchild to Lupol the original owner of that kibanja and, that it had houses, mango trees and a burial ground and that he was utilizing the land for brick laying and farming. 25

Dro2 clallr,ed, to be a son of Muhamed Odongo who died in 2015. He told court that he and his late father had filed a suit against the Muslim community which is however still pending in court. l-ie did not explain the circumslarnccs undcr which they filed the present suit when the original suit was still pending.

Since he could not provide any dctails in relation to that suit, it is reasonable for court to assume that it had either been abandoned or that it was never filed in the first place alrd therefore the Du2, t}],e 3"r defendant was not telling the entire truth.

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Du2, clai,Jj,ed he did not know the owner of the land which the Moslem community claimed to have acquired in 2005. That they never informed the counter defendants about their interest in the land.

According to him, all the children of his grandfather wcre living on that land. Although he challenged the ownership by the Moslems on that land, he admitted that he had no evidence that fraud had been committcd by them.

Court however notcd that although hc callcd Lupol his grandfathcr, and Odongo Muhamad his father, his father's names did not fcature among thosc who were named and listed by the Dul as the seven children of Lupol, o poges 18 19 of thc record of proceedings.

- Ort page 32 of l}]c record of proceedings, he referred to Dur-I as his paternal aunt. During cross examination when questioncd about the name of Odongo Constantino appearing in paragraph 4 of his statement as that of his father, hc conceded that his father was a Catholic and indeed called Odongo Constantino. 10 - On page 34 during cross examination, this same witness referrcd to Constantino as his uncle; atd, on page 37 reverted to calling him his father. On page 39 during reexamination, he again claimed his 'father'was a son to Dut7, and gave another nerme of okot sulaiman as that of his grandfather but who from his own words had no relationship with Lupol, alleged to have been the original owner of thc land. 15 - The witness who also denied the name ofSam as his, ztlso failed to give a proper explanation on the inconsistencies in names identified by counsel for the counter ptaintiffs. All these put into serious doubt the credibility of the cvidence lcd by these two key witnesses, especially on Du2,s interest in t}:e kibanja since he himself did not appear to know who his father and grandfather werc. 20

Drzs, Ms Layet Veronica who was a more credible witness in her statement referred to l)rt2 as a grandson since he was a son to Konstatino odongo. odongo according to her was a son of her sister-25

The unexplained alomalies and discrcpancies above howcver gave this court some impression that Drr2 was an untruthful arld unrcliablc witncss, and thercforc court failed to attach much value onto his evidencc. As a plaintiff/3.d counter defcndanl, hc did not therefore comc to this

court with clean hands. 30

> Ifurther doubt was created in relation to thc inconsistcncies appearing as the total area covering the kibanja. As deduced from the c/defendants' evidence, the actual size was not known to the claimants, as it ranged from 9 to 12 acrcs, with cach witncss coming up with a differcnt figure.

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Evidently since no measurements had been takcn by any party, no sketch was availed to court and despite the claim by the c/plaintiffs that a survey had bccn conducted tn 1987, there was nothing to prove that assertion.

Du, 3, Ms Layet Veronica aged,72 years, born in 1947 anothcr daughtcr of Lupol informed court that both her parents werc buried on the suit land. That it was her father who had informed her that he had bought the kibanja ia 1943 from one Musa/Ad:rm Boda.

She was only 13 years at thc time, and therefore a minor by the time Lupol died. She too admitted that her father never showcd her the sale agreement for lh.' kibanja. Her estimate ofits total area of lh.e kibanja was also based on hcarsay.

Dur4, Okello Francis, aged 43 years, a son of Odongo Constantino having born in 1976 and resided in the same kibanja clatned that D@, was his grandmother. In reexamination he confirmed that the Moslems community had already bcen on thc land since the time he was born. 10

That however, the family were utilizing the land for cultivation, which land the Moslcms were not utilizing and that prior to 2009, no dispute evcr arose between them. According lo Dro4, Sulaimani Okot had married Tereza Amari, onc of the daughtcrs of I-upol and also used to stay on lhe kibanja. From the evidence of Dw4 l]neir father Odongo Constantino never owned any house on that land. His children were staying in their grandmother's house. D[r4 sounded more or less like a witness for the c/plaintiffs. 15

- Dul and Dar2 confirmed the existence of the mosquc on that lard and so did Dur3 who also claimed to havc seen it from the timc shc had bcen an infant, which was an acknowledgment of the presence of thc l't counter plaintiff on the disputcd land, for more than 60 years. The l"t counter plaintiff not only thercforc had physical posscssion prior to 2005, but also had acquired legal possession of the land in 2005 from a registercd owncr. 20 - Counsel for thc c/plaintiffs refcrred court to an affidavit by Du4 in MA No. 972 oJ 2077 under which application Dw4 had, prcsented the same agrccment datcd 12th June, 1943 (PExh 5). He however denied it at thc trial but could not dcny thc fact that it was his signaturc appearing on the affidavit in support of that application onto which thc agreement was affixed. 25

None of the witnesses as a mattcr of fact came out to own that agreement. As noted earlier, it is not clear how they carne across it. None of the c/ defcndants' witnesses in any case had been a party or a witness or author thercof, since it was purportedly made before any of them had been born, 30

All in all, although the counter defcndants were able to show that they had been in physical occupation, they did not succccd in proving how their predeccssors had acquired the kibanja. They had no knowledge ofthe sizc ofthe land which they were occupying since they had no sale agreement, sketch plan or survey report to confirm the boundarics.

5 The only two things they were certain about was that the land originally belonged to the kabaka. It had been purchased by their father in 1943 from onc lJoda and it was located near a tree with white flowers, The neighbors on that land as invariably mentioned by thc various witnesses were not witnesses to the purported sale agreement nor wcre they witnesses in court during the trial,

Such evidence thcrefore created doubt about the authenticity of the mode of acquisition and claim of actual owncrship of the kibanyb. It was not strong enough to support the contention that that fraud attributable to the c/plaintiffs had been committed. 10

In response to issue IVo. I, the counter dcfcndants thcrefore also failcd to show how in the circumstances as highlightcd, the c/plaintiffs acquisition ofland could be regardcd as unlaw.ful.

## Issue JVo. 2: Whether the counter defendants qre tresr2assers on the suit land:

- 15 Counsel cited the case of Shekh Muhamrnqd as Kltala Enterprises Ltd CA No, 4 oJ 19A7, that in order to succeed in an action for trespass one must prove that the disputed land belonged to his/her; that the defcndant had cntcrcd upon it; and that thc entry was unlawful in that it was made without permission or that the defcndant had no claim or right or intcrest in the disputed land. - 20 In the casc ol Justin Lutqgq. a Sttrllng Ciail Dnglneering Compo.ng, S1apre/,,.e Courl Ctvil Appeql No. 77 of 2OO2, the Supre'?.e Court trespass was defined as an unauthorized entry upon land that intcrferes or portends to interferc with another person's law.ful possession.

Furthermore, rn Oo.lo. La.lobo aersus Okerrra Jakeo Akech C. S No.2O oJ 2OO4 traspass to land is a continuous tort which cannot be affected by lhle Ll',1llto:tlon Act or the Lqnd Act. h will

25 occur when a pcrson makes an unauthorizcd cntry upon land and thcrcby interferes or portends to intcrfere, with another pcrson's law-ful possession of that land.

Trespass is committed whcrc a pcrson wrongfully and unlawfully scts foot upon or takes possession or takcs matcrial from thc land bclonging to anothcr. lGeorge Kased,e Mukasa u. Emmq.nuel Wq.bende & Others, Clull Suit No. 459/199A)

30 It was the counter plaintiffs' contcntion in this case that the countcr defendants had entered that land without permission and that they had no claim of right on the suit land. The counter defendants in thcir reply to the counterclaim, paragraph 5 fa, stated that they had been lawful and rightful owners ofan unregistered land neighbouring Keesi and Namuli in the north, Namata

8 fi

ard Sentamu in the East, Nalongo Janet, Zerizcfeni Kiryabandi , Ssali Yunus arrd the mosque in the south and the main road in the Wcst, which land is situated at Kyalubanga, measuring 12 acres.

In paragraph 5 (b), thal they inherited the suit land as beneficiaies of the estate of the late ZaveAno Lupol who was at all material times the owner of the suit land, having purchased the same from one Adam Boda on or about the 12th day ofJune 1943.

PExh 3, is a letter by M/s Rugannbua & Co, Ad.vocqtes representing the c/defendants, addressed to the Moslem Community, datcd 181h August, 20 1 1. [,'rom thc contcnts of that lettcr they claimcd that Lupol had bccn a bona Jide purchascr for valuablc considcration, having acquired thc kibanja in 1943, implying thcrefore that as bcncficiarics, they derived protection as

Sectton 29(5) ol the Land Act provides that any person who has purchased or otherwise acquired the interest of the person qua.lified to be a bona fide occupant under this section shall

15 be taken to be a bona fi.de occupant for the purposes of thc Act.

equitable owncrs by virtue of section 29(5) of the Land. Act, Cap. 227.

A bona fide occupant is dcfined undcr section 29 (2) of that Act to mean a person who before the coming into force of the Constitution had occupied and utilised or developed any land unchallengcd by the rcgistcrcd owner or agent of thc rcgistcrcd owner for 12 years.

Section 29(7) (c,f also dcfincs a lawful occupant to includc a person who entered the land with the consent of the registered owner. Conscnt or recognition of a tenancy is often signified by payment of busuulu. Thc countcr defcndants could not howcvcr present proof that they paid any busuulu evcn to thc person known to them as the actual owner of the land.

Their evidence that this was kabaka's land was also found wanting. They failed to satisfy court that the kibanja had been purchascd by their fat]ner Zeverto Lupol from Adam Boda, and distributed among the seven children by his heir, each obtaining an acre.

They also failed to satisfy this court that they had no prior knowledge of the legal interest of the counter plaintiffs' predecessors in title, yet from thcir own evidcnce the existence of the counter plaintiffs' property on that land had bcen known to thcm for more than 60 years. They had even filed an earlier suit which Uust like the present suit) they had abaldoned 30

UilI,rd

It would appear that the act of securing a ccrtificatc of title and thc act of putting up a modern school on land claimed by the countcr dcfcndants crcatcd unccrtainty about thc c/defcndants' possession and occupation on that land.

At the locus visit conducted by this court, the unfrnished school building could be seen as an abandoned structure which neither side was utilizing.

The exact boundaries and measurcments of thc kibanja wcrc based on speculation and court noted a.lso that new houses were put up by the counter defendants to replace the old grass thatched huts existing at the time but whose ownership was not ascertained. The new structures which were in scattered areas were possibly intended to strengthen the c/defendants hold onto that land.

It was therefore hard to distinguish between those homcsteads which belonged to the beneficiaries of Lupol from those put up by thc third partics or squatters on that land. Court also noted that thc area where murram soil was ferried by thc road construction contractors was not in use.

There were crops in several parts of the arca in dispute as wcll as graves that the counter defendants claimed belonged to their deccased rclatives. Most of them wcre not marked, save for one grave which indicated that the person had been buried in 1997. 15

DuS, O)ok John Onyabo knew the arca well, having lived on that land sincc his birth in 1950. He was an area chairman from 2O01. IIe confirmcd Lupol's intcrest in his sworn evidence which was taken at locus. lle also confirmed that some family members had been buried on tbe kibanja;

arld that the unfinished school had been built on the said kibanja. 20

It was also made clear from the c/defcndants'evidencc that thc children of the late I.upol were the sole beneficiaries of Lupol's estatc; had bccn in occupation for dccades; and that therc was encroachment beyond the boundaries ofthe kibanja as the families became larger.

They continued to live thercon even when the counter plaintiffs secured the certificate of title, and utilised the area for cultivation, brick making, burial and residences, without any interruption. 25

under section 35 (8) of the La d. Act, thc principle is clear that a change of ownership of title effected by the owner by sale grant ald succession or otherwise shall not in arry way affect the existing lawful interests of a bonaf.de ocatpant. The new owncr is obligcd to respect the existing interest.

The original owner ofthe equitable intcrest in this case was the father ofthe 1.t counter plaintiff, Ali Nkubi who upon his demisc and after a long occupation ofthat land becarne the administrator of his father's estatc and in 2O05 secured his registration on the title for the suit land.

5 From the contents of thc title, he had transferred the samc to the 2nd counter plaintiff on 22nd February, 2005. The 2nd counter plaintiff as the new owner was therefore obliged to respect the later interests of the c/defendants on thc land which had bcen acquircd later and which the c/plaintiffs and predecessors in title never sought to challenge.

As noted earlier in this judgment, section 29 of the Land. Act, Cqp.22Z, accords protection to owners of equitable intcrests of provable by long occupation and utilisation and recognition of the owner of the rcvcrsion or landkrrd (and vicc versa) and paymcnt of ground in the casc of land in Buganda, and in somc instances paymcnt ofa typc ofland tax or rent. (see: Kampo.l(I. Dlstr-lct Land. Board & George Mutale us. Venq.nsio Babuegala A Ors (SCCA Z/OZ)). 10

Thus in the case of ,I(cmpala Dlstrict Land Board. & Another aersus N(I:u,onq.l Ho14,si7.g and. construction cotporqtion ciutl Appeal No. 2 of 2oo4, it was hcld that the respondent who

had been in possession of the suit land for a long time ar-rd utiiized it was entitled to have its interest recognized and protcctcd. 15

The law under sectlon 36 of the solz.e Act furthcrmore entitlcs a registered owner and a tenant by occupancy to mutually agrec that thc land in which the tcnant by occupancy has an interest be subdivided in such portions as the parties may agree, with each party having exclusive occupancy or ownership of such portions as may be agreed; or that the parties become joint proprietors of the land either as joint tenants or as tcnants in common.

It is within that spirit that this court cncouraged the parties to agree on how to share the disputed land; carry out a survey on the land to identify the portions claimed to have been part of the kibanja ar:d those falling outside the kibanja.'Ine parties however failed to reach any amicable settlement and also failcd to adhcre to the guidance of this court.

Accordingly, this counterclaim succeeds but only in part. since there is no sketch or survey report to detcrmine the size of land occupied by thc countcr dcfcndants it lics within the discretion of this court by virtue oI section 98 of the cpA to makc any ordcrs as the justice of

the case may demand, so as to determinc thc sizc of thc land thc parties were each entitled to, given the circumstances as highlighted. 30

In response therefore to issue ivo, 2, trespass was committed by the c/defendants in certain sections ofthe lartd the boundaries and cxtent of which shall be detcrmined through a surveyor report and recommendations to be relied on and binding by the parties.

In the premises, the following orders are made:

- 1) An independent survey shall be conducted by the office of Nakasongola district staff surveyor to determine the actual size occupied by the children, (including the estates of the deceased children) of the late Zeverio Lupol. The findings of the surveyor in his report shall be binding onto the parties. - 2) Any portion of land which is occupied by squatters or other persons who are not children of the late Zeverio Olupol shall revert to the land belonging to the Muslim Community. - 3) In conducting the survey, the area currently occupied and utilized by the mosque shall, together with the unutilized portions of the land, including the area where the unfinished structure is located, form part of the land owned by the Muslim Community. - 4) The children of the late Zeverio Lupol are bona fide occupants of part of the suit land and their equitable interest is determined to be only 40%, estimated to have been the land initially acquired and occupied as the kibanja of the late Zeverio Lupol and subsequently inherited by his children. - 5) The survey report, in calculating the 40% entitlement, shall take into consideration the portions of land currently used and occupied by the seven beneficiaries for their residences, portions of land used for cultivation by the children and for burial for their dead; and any portion of land disposed of by them to third parties and family members who are not entitled to obtain any share out the estate of the late Lupol. - 30 6) The 40% share out of the disputed area shall entitle the children of the late Lupol as joint owners, to a separate certificate of title to be created out of Buruli, Block 116, plot 2, land at Sabagabo, Kyalubanga, Nakasongola district. - 35 7) The counter plaintiffs are entitled to recover from the counter defendants 60% of the land in dispute calculated to include the unutilized portions of land.

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- 8) The $2^{nd}$ and $3^{rd}$ counter defendants in the counterclaim shall only be entitled to a share out of the estate of the children of the late Zeverio Lupol under whom they respectively claim. - 9) The parties shall jointly meet the costs of the survey. - 10) Each side to meet their own costs of this counterclaim. - 11) For the avoidance of doubt, the counter defendants shall meet the costs of the dismissed suit.

Alexandra Nkonge Rugadya

15 **Judge**

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$10$

$6^{th}$ June, 2022.

Delivered by email<br>8/6/2022<br>Anhong