Biwaga v Driciru (Civil Suit 14 of 2013) [2024] UGHC 499 (26 March 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT ARUA

# CIVIL SUIT NO. 0014 OF 2013

BIWAGA GRACE....................................

#### **VERSUS**

DRICIRU HELLEN..................................

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## Judgment

#### Introduction: 10

$\mathsf{S}$

The Plaintiff brought the instant suit seeking orders that; land comprised in LRV 1523 Folio 9 at Ochoko, Vuna, Arua District be divided between the estate of the late Wathum Donato and the estate of Agustino Matua and that either parties process the certificate of title for their respective portion and costs be provided.

#### Brief background: 15

The Plaintiff's case is that by a mutual understanding between the late Wathum Donato and his friend Mr. Agustino Matua, jointly applied for a lease on the suit land from the Uganda Land Commission on 10/8/1982 to be registered as tenants in common with equal shares. The application was granted for an initial period of five years to run from the 5<sup>th</sup> December, 1986 with an option to be extended to a full term of 49 years.

Upon the grant of the lease, the late Wathum Donato and Agustino Matau used the land peacefully and in accordance with the terms of the lease offer by Uganda Land Commission. And upon expiry of the term of the lease, the Plaintiff's father late Wathum Donato and the defendant's father the late Agustino Matua applied for full extension of the lease which was granted. Upon the demise of the defendant's father, Wathum Donato the initial Plaintiff in this suit decided to apply for sub-

division of the respective portions of the suit land. That before the demise of the Wathum Donato, he had applied to the controlling authority of the suit land (Arua District Land Board) to allow him subdivide the suit land in accordance with the 30 law and the necessary consent was granted.

The Plaintiff further alleged that although the sub-division was approved by the District Land Board, when Wathum Donato brought surveyors to subdivide the suit land, he was blocked by the defendant and her clan members on ground that the suit land is their clan land and that the plaintiff's late father was not entitled to any share.

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$20$

It is alleged that the defendant has forcefully put their clansmen on the bigger part of the suit land in order to defeat and dispose of the plaintiff's interest in the suit land.

It is also the Plaintiff's case that the parts which were settled on by the registered proprietors were known to them and could easily be identified and that they only left some areas for common use and utilization of both parties.

The Defendants on the other hand denied all the allegations in the Plaint and demurred that the suit land originally belonged to the defendant's grand-father Akapa who used the land for dwelling, cultivation and grazing animals together with his family members, relatives and clan members. That around the 1970s, the defendant's late father Agustino Matua together with the clan members held a clan meeting and agreed to lease the land to a group farm. That later on a partnership deed was executed, signed on behalf of the clan members by Agustino Matua (defendant's father), John Dratibi (the defendant's uncle), Mariko Rokoze (clan member), Michael Kaviko (clan member) and Wathum Donato (the plaintiff's father).

That on the basis of the partnership deed, the plaintiff's father was elected the chairperson to register the land and he collected signatures of residents on the land and without the knowledge/consent of the other members of the partnership proceeded to process the certificate of title to the suit land to defeat the interests of 25 the customary owners. It is alleged that he secretly and/or fraudulently registered himself and Agustino Matua as tenants in common with equal shares without the consent of the other partners.

Further, that the plaintiff's father had a small portion of land which was given to him by the defendant's late father. That the rest of the members of the partnership 30 are the true customary owners of the land by way of customary inheritance. That the land that was given to the plaintiff's father was to be used by him temporarily and was accordingly used by his 1<sup>st</sup> wife uninterrupted.

The defendants contended that the suit land cannot be sub-divided because the plaintiff's father secretly and fraudulently acquired the certificate of title in his name and Agustino Matua in total breach of the partnership deed.

The defendant counter claimed seeking for a declaration that the counter claimant together with their clansmen are the true customary owners of the suit land, cancelation of the leasehold certificate of title, a permanent injunction, general damages, exemplary damages, costs and interest thereon.

In reply to the counter claim, the plaintiff contended that the suit land was registered before the partnership was formed and the suit land has never been partnership property and no fraud was perpetrated by the counter defendant.

### **Issues for determination:**

- 1. Whether the Suit land was customarily owned by the members before it was acquired by Wathum Donato and Agustino Matua? - 2. Whether the plaintiff and Agustino Matua lawfully acquired the Suit land? - 3. Whether the plaintiff is entitled to the order of subdivision of the Suit land? - 4. What remedies are available to the parties?

# Representation:

Mr. Ojambo David appeared for the plaintiff while Mr. Madira Jimmy appeared for the defendant. Only the plaintiff filed written submissions.

Submissions: $20$

> For the Plaintiff issues one and two were submitted on jointly that PW1 told court that the Suit land which is comprised in LRV 1523 folio 9 measures 196.5 Hectares. PEX 5 the title deed was exhibited in court to confirm that the suit land was public land which was allocated to Wathum Donato by Uganda Land Commission under ULC $12/3/83/a$ (53) of $7/1983$ and that upon the lapse of the initial lease Wathum applied by letter dated 7<sup>th</sup> June, 1992 PEX 1 to Uganda Land Commission for extension of the lease which was dully extended as evidence by exhibit PEX 2.

It was submitted that the late Wathum applied by letter dated 25<sup>th</sup> November, 2015 which was exhibited as PEX 3 to have the land subdivided since the land had 30 already been surveyed and the lease extension granted by the land Board by letter dated 27<sup>th</sup> June, 2001 (PEX4).

$\mathsf{S}$

The main contention of the defendant in preventing the subdivision of the suit land as per their evidence was that at the time the suit land was leased to Wathum Donato and Agustino Matua in 1982, it was the customary land owned by the family of Akapa who was the grandfather of the defendant and the counterclaimant. DW1 stated that the land belonged to her ancestors, grandparents and that they were all buried there. She however, denied having known that the suit land was surveyed and yet during examination in chief she confirmed that Wathum Donato and her father Agustino Matua used to go to her in Kampala and would brief her over the process of obtaining the lease.

Counsel further submitted that DW2 stated that the land is customary land and 10 that it is was owned by Akapa and Wathum the father of the plaintiff who came onto the land in 1968 and was working as Veterinary officer. That the plaintiff's father never leased the land and if there was any process of survey it was done secretly without any body's knowledge. Counsel noted that this evidence contradicts the evidence of DW1 who stated that during the leasing process $15$ Wathum Donald and her father used to brief her about the process of leasing the land.

Furthermore, that DW3 stated that the community allowed the Suitland to be registered in the names of Wathum and Matua Agustino and he was surprised that Wathum had gone to Kampala and registered the land in his name. However, in 20 cross examination DW3 stated that the land title and all the documents concerning the land were with Agustino and Wathum only picked them when he was sick.

Counsel added that DW4 stated that the land was for his grandfather Akapa and that is where he was born, and Wathum only produced the documents after the death of Agustino Matua.

Counsel concluded that all the testimonies of the defence did not prove that the suit land was customary land at the time it was leased to Wathum Donato and Matua Agustino. As such the land was public land as testified for the plaintiff. Counsel cited the case of River Oli Division Local Government v. Sakaram Abdalla

Okoya, Civil Appeal No. 018 of 2013, which cited with approval the case of 30 Bwetegeine Kiiza and Another v. Kadooba Kiiza, C. A. C. A No. 59 of 2009, where the respondent claimed ownership of land in dispute on the basis that he got the land as a gift from the local elders and had stayed on it for a long time, therefore, had obtained customary interest in the land, the court held that;

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"We also disagree with the finding as a general rule that when one occupies or develops land then ipso facto, a customary interest is created. The effect of that holding is that no matter how one comes to the land, as long as one develops it, a customary interest is acquired. Even trespassers would then acquire interest on property which they would otherwise should not. In any event this was not proven in evidence, and, as a general proposition of customary law, would be unacceptable. It is clear from the authorities above that customary law must be accurately and definitely established and sweeping generalities will not do under this test."

Counsel quoted Section 3(2) of the Land Reform Decree which provided that; for avoidance of doubt customary occupation of public land shall not withstanding anything contained in any other written law be only at sufferance and a lease of any such land may be granted by the commission to any person including the holder of the tenure in accordance with the decree.

In River Oli Division Local Government v. Sakaram Abdalla Okoya, (Supra) cited 15 the case of Musisi v. Edco and Another, H. C. Civil Appeal No. 52 of 2010, where it was held that by virtue of the Land Reform Decree,1975 and the public Land Act, 1969, the system of occupying public land under customary tenure was to continue, but only at sufferance and any such land could be granted by the commission to any person including the holder of the tenancy. 20

Counsel for the plaintiff went on to submit that the evidence of the defence was that they held the land under customary land holding and as such it could not be allocated. However, was there any customary interest that could prevent Wathum Donato and Matua from being given a lease on the suit land? Counsel relied on the case of Kampala District Land Board and George Mitala v. Venansio Babweyaku $25$ and Anor S. C. C. A No 2 of 2007, where it was held that section 5 of the Public Reform Decree provided that with effect from the commencement of the Decree no person may occupy public land by customary tenure except with the permission in writing of the prescribed Authority which permission shall not be unreasonably withheld. That the defendant in the instant case never provided any evidence of 30 the permission to occupy the land under customary tenure and even if the permission was granted, section 3(2) of the Public Reform Decree allowed leasing of such land.

Consequently, according to the evidence of PW1 the suit land was public land and at the time the lease was issued the land was under the mandate of Uganda Land Commission by virtue of the Land Reform Decree which could be given to any one

不同

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since the occupants of the land then were tenants at sufferance which expression extends to include persons in occupation of former public land who continued to do so without the authorization of the controlling authorities (in the past) or the District Land Boards (in modern times) or other statutory authorities. (See: River Oli Division Local Government v. Sakaram Abdalla Okoya, (Supra). Thus, if indeed the defendant were a customary tenant she was at sufferance and the land was available to the occupier and anyone else.

Further, counsel submitted that the suit land was public land at the time it was leased out to the Wathum Donato and Matua and Uganda land Commission the controlling Authority had the right to allocate as they did to Wathum Donato and Matua since other occupiers there in were tenants at sufferance hence the late Wathum Donald and Matua Agustino legally acquired the suit land.

In regard to whether the plaintiff is entitled to the order of subdivision of the Suitland, counsel submitted that according to the evidence of PW1 Palwak Romeo it is evident that the controlling Authority had already authorized the subdivision of the land between the two registered proprietors who were tenants in common. That in the instant case since the title is registered in the names of two people as tenants in common who have since died but have administrators for their respective estates. The respective shares of the original proprietors will now go to the respective estates and registered in the names of the Administrators of each estate.

In regard to the remedies available, the plaintiff sought for an order that the land be subdivided in accordance with the law governing tenancy in common with equal shares; A declaration that each party should remain on the sides that each occupied before the death of the original proprietors that is Agustino Matua and Wathum Donato; that the plaintiff be allowed to process a certificate of title for her father's estate.

Counsel submitted that since the title is in the names of Wathum Donato and Agustino Matua and the same were held under tenancy in common with equal shares and according to section 59 of the Registration of Titles Act the certificate of title is conclusive evidence of ownership. Consequently, the title in this case was held by tenants in common with equal shares. Thus, each of the respective registered proprietors would be entitled to 98.25 hectares each from the 196.5 hectares on the title.

$\mathsf{S}$

$25$

Counsel prayed that an order be granted allowing the plaintiff to be issued with the title for the 98.25 acres in her name as the plaintiff as Administratrix of the estate of the late Wathum Donato and costs of the suit.

## Analysis of court:

$10$

In civil cases the burden of proof is on the one alleging and the standard of proof $\mathsf{S}$ is on a balance of probabilities.

Section 10 (1) (2) of the Evidence Act provides;

- "Whoever desires any court to give judgment as to any legal right or $i$ liability dependant on the existence of facts, which he or she asserts must prove that those facts exist. - When a person is bound to prove the existence of any fact, it is said that ii. 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."

Section 103 of the same Act 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."

In the instant case, the burden of proving that the land in dispute was leased to $\mathbf{0}$ Wathum Donato and Agustino Matua as tenants in common with equal shares lies on the plaintiff.

Issues 1 and 2: Whether the Suit land was customarily owned by the members before it was acquired by Wathum Donato and Agustino Matua?

Whether the plaintiff and Agustino Matua lawfully acquired the Suit land? $25$

PW1 Palwak Awinjo Romeo told court that he encountered Wathum Donato when he was applying for the extension of the lease in 1992. That a lease offer was prepared by the Land office in which he worked. That the application was made by Donato Wathum and Agustino Matua and forwarded by PW1 to the Secretary

Uganda Land Commission whom it was addressed to. That the application for 30 renewal of the lease is PEX1 and the new lease was a granted as evidenced by PEX2. That at the time of the renewal they were not aware that Agustino Matua was dead. That the land board does not have the mandate to inspect the land before the grant.

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That they did go to Wathum's home and the District Land Board authorized Wathum to subdivide the land and the communication was made to Wathum.

PW2 Oreguu David stated that the land was owned by both Wathum and Agustino after obtaining a lease together. That the suit land is divided by a road and Akapa settled in the West while his father settled in the East and they lived in harmony. That was in the 1960s.

That the land was applied for in 1982 and by then it was public land and a lease for 49 years was offered in 1986. That upon the death of Agustino some of his grandchildren and children started disturbing his father, claiming land across the road and started trespassing on the same and destroyed crops and animals. That his father called the defendant for talks but she never responded so he wrote to the District Land Board for subdivision and land was inspected between 1994-1995 and it was agreed that the land could be subdivided.

In 1986, PW2's father brought Marvin Wright who built a church on the suit land. That, in 2007 there was a violent attack that resulted into burning of property and animals. His father had to withdraw the case against them.

PW2 added that the he knew who stayed on the Eastern side and that is Ezaka Nelson, the late Anthony, the grandchildren of Ombeda and the children of the late Agustino Matua. But he does not know who brought them there. However, they came after 2007 on different dates. The same year his father sold to the Baptist church 98 acres. That the purpose of obtaining the lease was for diary farming and it was between his father and Agustino Matua. That the land was not property of the farm. That the first subdivision was done in equal parts before the sale of the 98 acres and the defendant was left on the Western side.

DW1 Driciru Hellen stated that the land belongs to her ancestors and she got to 25 know Wathum in 1968 when he would come to treat her grandfather's cows. That all the people on the land are her grandfather's descendants. That when she was approached by Wathum to have the suit land subdivided she refused. She confirmed that the title was pursued by both Wathum and Agustino who came to her. That it was for the mixed farm. That they told her it was a lease over their land 30 and she was only accommodating. That at the time when the lease was being pursued there were Matua, Dricibi, Drokoza, Isua who were mainly digging, crazing cows and goats. That the land that was given to Wathum is that which belonged to her father's second wife. That the land is not subdivided/because the

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$20$

people refused and that the Baptist church has taken almost all the land and people have nowhere to dig.

During cross examinations she stated that her grandfather gave Wathum land in 1968 measuring 3 acres. And during examination in chief she stated that it was 2 acres. Then she stated that she heard about how Wathum was given land and later stated that she was present when the land was given to him. Again she stated that when Wathum sued her before the land Tribunal, there was no locus visit, when shown the record of proceedings dated 15<sup>th</sup> June, 2007 she changed and stated that she was not present when the locus visit took place. She also added that she had no proof of forgery on the side of Wathum. That at the time PW1 came to the land she was not around and indeed Wathum was occupying the land since 1968 which is the eastern side.

In reexamination she stated that she only got to know about the title in court and knew nothing about the partnership deed between Wathum and her father. That the partnership that was there was by the whole clan who chose Wathum.

DW2 Mario Rokoza told court that Akapa owned the land customarily. That Wathum as his grandfather's veterinary officer asked for some land was given 3 acres on the eastern side. That he was present when the land was given out. That Wathum built a house there and brought cows in 1972. That at the time they had started a mixed farm; Wathum was part of them and in charge of the livestock together with Andabati. That the dispute started when Wathum was elected to be the Chairperson of Dalapi mixed farm then they got a lease so that they could get a government loan and use it as collateral. That Wathum went on to process the land title in 1973 and returned in 1987 with a memorandum of understanding to have the land divided between him and the father of the defendant. That after the death of the defendant's father Wathum wanted the land divided when the defendant refused that is when the dispute began. That there used to be 32 families on the land however, he does not know how many are currently on the land.

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$20$

$25$

During cross examination he stated that Wathum established his own farm on the 3 acres, no physical distribution was made to Wathum so the land was not measured. He was however allowed to graze on the entire land. That the part that was used for grazing is the one that was sold to the church, the rest of the land is used for cultivation and settling. That he has no problem with the 3 acresgiven to Wathum albeit the fact that it was never measured.

DW3 Mariko Ozaka stated that Wathum in 1962 came through him to treat cattle since he was a veterinary personnel. That he told him he had no land and he should ask his grandfather to give him land. That he was given the land and built a house thereon when he had just come. That Wathum and Agustino agreed to register the suit land in their names and that that was when the dispute began.

Further, he stated that he was not sure of the size of the land that was given to Wathum in measurements. That Wathum was eventually transferred to Karamoja whereof he brought some Karamojongs to graze the cattle between 1971-1972. That mixed farming started on the land and Wathum and Agustino agreed that the land be registered in the name of Agustino Matua. That he had no agreement showing that the title was to be registered in the names of Wathum and Agustino.

During cross examination he stated that he was alone when he gave the land to Wathum since he is the one that was sent by his grandfather to do so. That he came back and asked for more land which his grandfather gave him on three different occasions. He added that two people were entrusted with the process of obtaining the title.

He added that Wathum could have changed the documents that Agustino had. That the people entrusted him to go and process the Certificate of title.

DW5 stated that he started seeing the plaintiff on the suit land before 1986.

- I have carefully considered the evidence on record and the submissions of the 20 plaintiff. From the evidence as summarized above, the plaintiff's evidence is very clear and consistent that the lease was obtained by Wathum Donato and Agustino Matua as evidenced by **PEX5** as tenants in common with equal shares. It was also the evidence of DW1 in particular that she was aware of entire process because she was told by Wathum and Agustino about the lease 25 application who would come to her together while she was in Kampala. Therefore, while the plaintiff's father and the defendant's father applied for the lease, DW1 was in the know at all times and cannot now say that the lease was obtained fraudulently and without anyone's knowledge. - The defendant in her evidence had inconsistencies as to how the land was given 30 to Wathum while she stated that she was present when the land was given to him so, did DW2 who also stated that he was present. DW3 on the other hand stated that he was alone when the land was given to the plaintiff's father and he was the one who handed it over. The inconsistencies are no minor and touch

the root of the matter. In the case of Oryem David v. Omory Phillip, H. C. C. S No. 100 of 2018, it was held that;

"It is trite law that grave inconsistencies and contradictions unless" satisfactorily explained will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to *deliberate untruthfulness will be ignored."*

Further,

"What constitutes a major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material, *i.e "essential" to the determination of the case. Material aspects of evidence* vary from case to case but generally in a trial, materiality is determined on the basis of the relative importance between the point being offered by the contradictory evidence and its consequences to the determination of any of the facts or issues necessary to be proved. It will be considered minor where it relates only on a factual issue that is not central or that is only collateral to the outcome of the case."

I do agree with the submissions and the authorities cited there under for the plaintiff that the suit land was public land at the time it was applied for as stated by **PW1.** Therefore, the lease was lawfully obtained by Wathum and Agustino as public land and not land belonging to the community as alleged by the defendant.

I hereby find that the suit land did not belong to the community before the lease was obtained and the said lease was lawfully obtained by Wathum and Agustino.

These issues are hereby resolved in favour of the plaintiff. $25$

Issue 3: Whether the plaintiff is entitled to the order of subdivision of the Suit land?

It was the evidence of PW1 that the District land Board had already allowed the subdivision of the suit land and the same had been inspected. Also, the other witnesses stated in their evidence that the subdivision had been allowed by the Chief Magistrates court.

Having found that the lease was lawfully obtained by Wathum Donato and Agustino Matua, who were tenants in common with equal shares and had coexisted on the suit land peacefully during their life time with distinct occupations

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$20$

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of the suit land. During the locus in quo visit it was confirmed by the plaintiff's witnesses that the two estates had settled on distinct pieces of the suit land and each being on either side of the road since the suit land is divided by a road. I hereby find no reason to decline the subdivision of the same.

This issue is hereby resolved in the affirmative. $\mathsf{S}$

## Issue 4: What remedies are available to the parties?

The plaintiff in the instant suit sought orders that; land comprised in LRV 1523 Folio 9 at Ochoko, Vuna, Arua District be divided between the estate of the late Wathum Donato and the estate of Agustino Matua and that each parties process the certificate of title for their respective portion and costs be provided.

The plaintiff in the instant case proved her case on a balance of probabilities that the lease was lawfully obtained. Therefore, discharging her legal burden to the satisfaction of this court. Judgment is hereby entered in favour of the plaintiff in the following terms;

- 1. The estates of Wathum Donato and Agustino Matua are each entitled 98.25 hectares from the 196.5 hectares on the title of land comprised in LRV 1523 Folio 9 at Ochoko, Vuna, Arua District. Let the suit land be subdivided and shared equally by both estates. - 2. Let each estate process their respective Certificate of Title for their respective share. - 3. Costs are awarded to the plaintiff.

I so order.

Right of appeal explained.

OYUKO ANTHONY OJOK JUDGE $26/3/2024$