Biroli v Nambubu & Another (Civil Suit 17 of 2024) [2025] UGHC 158 (26 February 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

# LAND CIVIL SUIT NO.0017-2024

#### (FORMERLY MUBENDE LD-CS NO.066 OF 2018)

BIROLI EDIISA :::::::::::::::::::::::::::::::::::

# **VERSUS**

# 1. NAMBUBU CHRISTINE (the legal representative of the estate of the late Livingstone Kyazze) **}::::::::::::::::** DEFENDANTS

# 2. RUZINDANA MOSES

#### BEFORE HON. MR JUSTICE KAREMANI JAMSON. K

#### **JUDGMENT**

# Introduction.

Biroli Ediisa (hereinafter referred to as the plaintiff) brought this suit against Nambubu Christine and Ruzindana Moses (hereinafter referred to as the defendants) seeking the following;

- a) An order for vacant possession; - b) A declaratory order that the defendants are trespassers; - c) A permanent injunction restraining both defendants from trespassing on the suit land; - d) Special damages, general damages and costs of the suit.

## **Background**

The plaintiff avers that her late husband (herein after referred to as the deceased) was the owner of the kibanja comprised in Singo block 785 plot 4 having acquired the same as a gift

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inter vivos from the family of the late Livingstone Kyazze the former registered proprietor. The deceased constructed his matrimonial home on the suit land, lived thereon until his demise. That the deceased's family still resides there. That in 2009, the deceased acquired mailo interests in the said kibanja measuring 30 acres. That on some unknown date, the 1st defendant sold 10 acres of the land to the $2^{nd}$ defendant who has since constructed a house thereon and uprooted the plaintiff's crops. That the 1st defendant laid claim on the remaining 20 acres thus bringing this suit against them.

The defendants in their joint written statement of defence contended that the 1st defendant and her family were entitled to 20 acres of the suit land having received it from the then registered proprietor Kakooza James and thereafter sold the same to the 2nd defendant. That the family of the 1st defendant had requested the plaintiff's father to process for them a certificate of title upon which they would give him 30 acres of land which he failed to execute. That the 1st defendant's father died in the early 1990's before the plaintiff came onto the village. That the plaintiff and her husband were merely hiring the suit land to cultivate thereon but upon the demise of the plaintiff's husband, the plaintiff started claiming ownership of the same and started construction of a house thereon. That the $2^{nd}$ defendant first purchased 100 acres of land adjacent to the suit land and thereafter bought the 20 acres from the 1st defendant and her family making it a total of 120 acres.

The $2^{nd}$ defendant raised a counter claim in which he sought a declaration that the counter defendant/plaintiff is a trespasser on the land comprised in singo block 785 plot 4 land at Kibakula, an eviction order, a demolition order, an order for permanent injunction, general damages and costs of the suit.

In reply to the written statement of defence and counterclaim, the plaintiff contended that she has lived on 30 acres of the land with her family by raring cattle, cultivating the same for commercial purposes for over 20 years before the $2^{nd}$ defendant bought his interest. That the $2nd$ defendant only bought the legal interest in 2018 and started trespassing on her land which amounted to contempt of the court order dated $10/10/2019$ . She prayed that the counterclaim be dismissed with costs.

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#### Representation.

The plaintiff was represented Mr. Mugendada Nicholas of M/S Alma Associated Advocates while Mr. Alinaitwe Gideon of Kazungu, Kakooza, Alinaitwe & Co. Advocates represented the defendants.

Both parties were directed to file written submissions but only counsel for the plaintiff has filed his submissions for consideration in this judgment.

#### **Issues for determination**

- 1. Whether the land / kibanja in dispute forms part of the estate of the late Biroli Joseph. - 2. Whether the $2^{nd}$ defendant obtained registration by fraud. - 3. Whether the defendants trespassed on the suit kibanja. - 4. Whether the defendants destroyed the crops in the kibanja in issue. - 5. Whether the plaintiff/counter defendant trespassed on the 48.6 hactres of land in issue. - 6. What are the remedies available to the parties?

#### **Burden and standard of proof**

The legal burden of proof in civil matters lies upon that person who would fail if no evidence was given at all on either side. See: **Section 102 of the Evidence Act cap 8.**

In this case the burden lies on the plaintiff to prove her case against the defendants. The standard of proof in civil matters is on a balance of probabilities. See: Sebuliba V Cooperative Bank Ltd (1982) HCB 129, Nsubuga V Kavuma (1978) HCB 307

# Resolution of issues.

1. Whether the land/kibanja in dispute forms part of the estate of the late Biroli Joseph

In order for the plaintiff to prove that the suit land formed part of the estate of the late Boroli Joseph, she had to prove that the deceased owned the suit land before his demise.

In his submissions, the learned counsel for the plaintiff framed his own issue on whether the late Birori Joseph had an interest in the suit land as a lawful or bona fide occupant. Counsel goes further to submit on the law on bona fide and lawful occupancy. He then concludes that

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the plaintiff's husband came onto the land with the consent of the 1st defendant's family which shows that the plaintiff's husband had possession and occupancy.

With all due respect, I am of the view that counsel for the plaintiff completely departed from the pleadings and evidence in this case.

From the plaint and from the issues farmed at scheduling the right issue is whether the kibanja in issue forms part of the estate of the late Biroli Joaseph.

I will therefore evaluate the evidence herein based on the above agreed issue of whether the land/kibanja forms part of the estate of the late Birori Joseph.

It was the evidence of PW1 Ssesanga Godfrey as holder of powers of attorney of the plaintiff that the suit land was given to the late Birori Joseph as a gift from the Njazza clan for caretaking the land in 2002.

The law relating to gifts inter vivos is that the gift takes effect when three situations are fulfilled, that is, there is intention to give the gift, the donor must deliver the property, and the donee must accept the gift. See: Lillian Nantongo and Ors V Kyobe Gerald and Anor HCCA No. 0020 of 2023.

In determining whether the clan of Njazza created a gift inter vivos in respect of the disputed land, court has to ascertain the intention of the donor and then examine whether formal requirements of the method of disposition which they attempted to make have been satisfied.

Mellows in The law of Succession 5th edition, Butterworth 1977 pages 9 -10 stated as follows regarding gifts inter vivos;

'Various formalities are necessary for gifts inter vivos. Thus a gift of land must be by deed; a gift of land where the title is registered at the land registry must be effected by an instrument of transfer which is registered.'

The question to answer in this case is whether from the evidence adduced on record, and on applying the relevant laws, the plaintiff's late husband received the suit land as a gift inter vivos to constitute his estate.

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PW1 stated that the late Birori Joseph received the land from the Njazza clan. That on 8/2/2002, an agreement was entered between Njazza clan and the late Birori to care take the clan land upon which he was promised a kibanja. Further that on $2/8/2007$ , a subsequent agreement was entered by the Njazza clan and Birori upon which land was demarcated in the presence of the $1^{st}$ defendant.

PW2 Augustine Ssalongo Rwabihama also stated that the land was given to his to his brother the late Birori Joseph as a gift but he did not know who gave it to him neither did he know when the said land was given to him. He further stated that the late Birori was buried in Rwanda.

The plaintiff did not adduce evidence of any of these agreements that are said to have been executed giving the deceased the suit land as a gift. By stating that the land was received from the Njazza clan denotes lack of a specific donor because it cannot be established who in the Njazza clan gave the said land to the deceased.

The suit land forms part of registered land comprised in Singo block 785 plot 4 land at Kalengo, Kiteredde, Kiboga district as per the certificate of title (Exh. D2). This being registered land it would have been imperative that upon being given the land as a gift, transfer instruments or a deed would have been executed by the donor. There is no evidence that this was at all done. Whereas the plaintiff's witnesses stated that the agreements were executed, none of the witnesses stated that he was present when the same were being executed.

It can also be observed that despite the plaintiff claiming that her late husband derived his interest from the family of the late Kyazze Livingstone who was the registered proprietor then, Exh. D2 which is the certificate of title for the same piece of land does not reflect the late Kyazze Livingstone to have owned the suit land at all and this was confirmed by the evidence of DW2 Nambubu Christine who stated that despite believing that the suit land belonged to her family, it was later established that this was not the case because the land belonged to the late Kakooza James.

Based on the above evidence, I find that the plaintiff did not prove to this court that the suit land was given to the late Biroli Joseph as a gift.

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The submissions of the plaintiff's counsel dealt so much on the issue of lawful and bona fide occupant. He went ahead to define a lawful occupant and a bona fide occupant.

However, the learned counsel did not in his submissions guide court on whether the plaintiff was a lawful occupant or a bona fide occupant.

I will weigh the position of the plaintiff's husband against both positions of the law under Section 29 of the Land Act

According to Section 29 (1) of the Land Act cap 236 (As amended) a lawful occupant is a person occupying land by virtue of the cited Acts therein, a person who entered the land with consent of the registered owner and a person who had occupied the land as a customary tenant but whose tenancy was not disclosed or compensated for.

Under **Subsection** (2) (supra) a bona fide occupant means a person who before the coming into force of the Constitution had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more.

From the evidence adduced in this case, the plaintiff's husband did not qualify under any of the above positions of the law, either as a lawful occupant or bona fide occupant of the land in issue.

I accordingly find that the land in issue did not form part of the estate of the late Boroli Joseph.

Issue no.1 is resolved in the negative.

# 2. Whether the $2^{nd}$ defendant obtained registration by fraud

Section 59 of the Registration of Titles Act cap 240 provides that a certificate of title is conclusive evidence and that the person named therein as the proprietor or having any estate or interest therein or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power.

A certificate of title can only be defeated or cancelled if it is found out that there was fraud in obtaining the same.

According to **Section 161 of Registration of Titles Act**, the High Court has power to order cancellation of a certificate of title on the ground of fraud among others.

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Fraud is defined to include anything calculated to deceive whether by a single act or combination or suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture. It includes dishonest dealings in land or sharp practice to deprive a person of an interest in land. See: Fredrick Zaabwe V Orient Bank and 5 Others SCCA No. 04/2006; Kampala District Land Board and Another V Venancio Babweyaka and 3 Others Civil Appeal No. 02 Of 2007.

In my view land fraud means involving deceitful or dishonest practices related to buying, selling, or transfer of land or real estate. This can include various illegal activities such as falsifying documents, misrepresenting property values, misrepresenting description, misrepresentation of ownership or using coercion or bribery to gain ownership unlawfully.

It is trite law that fraud must be strictly pleaded and proved. The standard of proof for fraud is higher than the ordinary civil suits but does not reach beyond reasonable doubt. See the case of Shaban Mukasa & Anor V Lamba Enterprises Ltd & Anor CS No.287 of 2021 (unreported)

In this case, the plaintiff never pleaded fraud in her plaint. However, the plaintiff's counsel in his submission stated that the 2nd defendant registered himself on the title which was in contempt of the court order that was issued on $10/10/2019$ prohibiting him from getting registered thereon.

The said court order was never tendered in court by the plaintiff. On the other hand, DW1 Ruzindana Moses adduced evidence of the certificate of title Exh. D.2 to show that by the time he was sued in this case, he had already commenced the process of obtaining registration onto the title and the title was then transferred into his name.

The plaintiff never challenged this evidence neither was any evidence adduced to prove that the registration of the $2^{nd}$ defendant on the title was meant to defraud the plaintiff.

Issue no.2 is answered in the negative.

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I will evaluate issued 3, 4 and 5 together because they are related. $\frac{1}{2}$

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- 3. Whether the defendants trespassed on the suit kibanja. - 4. Whether the defendants destroyed the crops in the kibanja in issue - 5. Whether the plaintiff/counter defendant trespassed on the 2 acres of land in issue

The Supreme Court while defining trespass as per the case of Justine E. M. N Lutaaya V Stirling Civil Eng. Civ. Appeal No. 11 of 2002, held that trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lawful possession of the land.

I have already found that the plaintiff did not prove that the suit land formed part of the estate of the late Birori Joseph where she claims to derive interest. However, trespass to land does not necessary follow ownership but rather possession of the land.

It was the evidence of DW2 Nambubu Christine that she used to reside on the suit land with the plaintiff before she sold the land to the $2^{nd}$ defendant. According to exhibit D.2 this land was first owned by Timoni Mukalazi, then transferred to Daudi Lugayizi, transferred to Kakooza James, to Muhanguzi Micheal and lastly to the 2nd defendant Ruzindana Moses. The plaintiff and the 1st defendant had no legal ownership as earlier stated but were in occupation.

However, it is clear that the two were at the time in occupation and hence were in possession of the land. Having been in possession, they could only be removed through legal means.

The plaintiff's evidence was not challenged by the defendants to the effect that she had crops and a house on the suit land. Exh. P.1 are photos which show a house on the land and cassava stems. PW1 in his testimony also stated that the house of the plaintiff was burnt no further evidence was adduced. The photograph tendered in court show the fencing and some stems of cassava garden. The plaintiff contended that it was the 2nd defendant who trespassed. The $2nd$ defendant does not deny those activities. He only claims ownership of the land and counter accuses the plaintiff of trespass.

I have already found that the $2^{nd}$ defendant lawfully got registered onto the suit land, what remains to be established is whether the plaintiff is a trespasser on the same.

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It was the evidence of DW2 (1st defendant) that she used to reside on the suit land together with the plaintiff but that the plaintiff was her tenant. This fact was corroborated by the evidence of DW1 (2nd Defendant) who stated that by the time he bought the suit land from the 1st defendant, he found only the 1st defendant on the land but there was the house of the plaintiff thereon. That he was however informed by the 1st defendant that the plaintiff was only her tenant.

When the court visited the locus, it found out that the plaintiff was no longer occupying the land although her house was still there. DW1 informed court at the locus that the plaintiff had since returned to Rwanda and that it was PW1 blocking him from utilizing his land. Her house and crops are still on the land.

The plaintiff having entered the land with the consent of the 1st defendant, she cannot be declared a trespasser since the land was sold without notice for her to vacate.

At locus, it was further observed that there was an incomplete house. The alleged destroyed crops could not be seen since it took long to visit the land after the case had been filed. However, there is evidence of photographs Exhibit P.1 which showed the fenced off area. I find these activities by the $2^{nd}$ defendant/counterclaimant amounting to trespass.

I find that the plaintiff is not a trespasser. The counterclaim fails.

# **Claim for Special damages**

The plaintiff further pleaded to be awarded what she called special damages.

Special damages should not only be specifically pleaded but must be strictly proved.

According to the case of Hajji Asuman Mutekakanga V Equator Growers (U) Ltd S. C. C. A No.07 of 21992 the Supreme court held that special damages must be specifically pleaded and strictly proved.

In the instant case the plaintiff did not prove the special damages claimed. I decline to award the same.

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#### **Claim for general Damages**

The plaintiff claimed general damages and shown that the plaintiff was in occupation of the land with developments with the consent of the 1st defendant. The same land was sold without prior warning for her to remove her developments. It is my finding that the plaintiff suffered some loss as a result of the above acts which must be atoned to. I find that shillings ten million (Ugx.10,000,000) can cover the loss suffered by the plaintiff and I award the same.

#### Costs

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According to **Section 27 of Civil Procedure Act** costs follow the event. In the instant case the plaintiff has only succeeded in the claim for general damages for developments on the land that he was deprived. The suit was on bigger part dismissed. It is fair that each party bears its own costs of this case.

Wherefore, the plaintiff's suit is partly allowed with the following orders:

- a) The land in dispute does not for part of late Biroli Joseph's estate. - b) The 2nd defendant trespassed on the land in possession of plaintiff. - c) The land in dispute belongs to the $2^{nd}$ defendant. - d) The plaintiff is ordered to vacate the land in issue. - e) The counterclaim is dismissed. - f) No special damages awarded to the plaintiff. - g) General damages of ten million shillings (shs. 10,000,0000/ $=$ ) awarded to the plaintiff. - h) Each party to bear its own costs.

I so order.

$110$ m KAREMANI JAMSON. K

**JUDGE** $26/2/2025$