Byarugaba v Tumuhimbise & Another (Civil Suit 21 of 2020) [2024] UGHC 829 (27 June 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE**

### **CIVIL SUIT No. 0021 OF 2020**

#### 10 **REV. FR. NARCISIO BYARUGABA**=================**PLAINTIFF**

#### **VERSUS**

#### **1. DONOZIO Alias DAN TUMUHIMBISE**

## **2. CHARITY AHIMBISIBWE**====================**DEFENDANTS BEFORE ME: HON. JUSTICE SAMUEL EMOKOR**

#### 15 **JUDGMENT**

The Plaintiff/Counter Defendant (herein after referred to only as Plaintiff) brings this Suit against the Defendants/Counter Claimants (herein after referred to only as 1 st and 2nd Defendants) seeking orders for declarations, recovery of land and mense profits, aggravated damages, general damages, interest and costs of this 20 Suit arising out of trespass to land, conversion, deceit and misrepresentation.

The brief background of the Plaintiffs' claim is that the Plaintiff between 1997 and 2005 purchased different parcels of land in Mutojo Village, Bushuro Parish in Kitumba Sub County with a view to setting up a zero grazing dairy cattle project and embarked on the same in the year 2000 investing substantially and by 2011

25 had 6 friesian cows. Sometime in 2011 the Plaintiff was persuaded by his mother and sisters to allow the 1st Defendant who is also the Plaintiff's brother to build a house on his land for purposes of living next to a family project of running a Secondary School, Kigezi Modern Secondary School and the Plaintiff allowed the 1 st Defendant to build a house on a 50 x 100 plot on the Suitland subject to the 30 Defendant paying him the sum of UgX 21,000,000/= but the Defendant did not

5 complete payment of the said sum leaving a balance of UgX 3,000,000/= outstanding to date. That to the Plaintiff's surprise the 1st Defendant after completing and occupying the structure in question trespassed on the entire Suitland and built an additional semi-permanent commercial building on the Suitland, converted and sold the Plaintiff's dairy cows, destroyed and uprooted 10 all the pasture on the Suitland besides attempting to sell part of the land to one Simon Agaba, several attempts to have the dispute between the Plaintiff and Defendants amicably resolved were all fruitless hence the instant Suit.

The Defendants in their joint written statement of defence denied the claims of the Plaintiff. The Defendants while acknowledging that the Plaintiff by a mutual family arrangement allowed the 1st 15 Defendant to construct a permanent house on the Suitland contend that the Plaintiff requested for a consideration of UgX 21,000,000/= for the whole Suitland and not for 50 x 100 feet as alleged by the Plaintiff. That as a result the Defendants proceeded to construct permanent boy's quarters, a residential house, commercial house and also engaged in agriculture

20 on the Suitland. The Defendants therefore lay claim to the entire Suitland and deny being trespassers thereon.

The Defendants in the counterclaim make a claim for UgX 17,500,000/= against the Plaintiff arising from a memorandum of understanding dated 29/05/2020 in which the parties agreed that the Plaintiff would refund the Defendant the above

25 stated sum being money refunded to a one Agaba Simon and also compensation in the sum of UgX 8,000,000/= for developments made on another part of the Suitland.

5 The Plaintiff in his reply to the counterclaim denies owing the Defendants the money claimed.

#### **Representation.**

At the hearing of this Suit Mr. Jude Byamukama represented the Plaintiff while Mr. Justus Muhangi appeared for the Defendants.

- 10 Counsel agreed to the following 6 issues for determination; - **1) Whether the Defendants are trespassers on the Suitland.** - **2) Whether the Defendants are liable for deceit and misrepresentation.** - **3) Whether the agreement dated 29/05/2018 is valid.** - **4) Whether the Defendants have any claim over the Suitland.** - 15 **5) Whether the Defendants are liable in conversion for alleged sale of the Plaintiff's cows.** - **6) What remedies are available to the parties?**

#### **Issues 1 – 5.**

The Plaintiff's Counsel in his written submissions argued issues 1 and 4 jointly 20 and issues 2, 3, 5 and 6 separately.

While the Defendant's Counsel argued issues 1 – 4 omnibusly.

I find issues 1 – 5 to be intrinsically connected and shall therefore adopt the approach taken by the Defendants' Counsel in resolving them in an omnibus manner.

#### 5 **Plaintiff's case**.

It is the Plaintiff's case that he is the rightful owner of the Suit property situate st Mutojo Village, Bushuro Parish in Kitumba Sub County and that he purchased the same in different parcels between 1997 and 2005 with a view to setting up a zero grazing dairy cattle project that he embarked on in 2000 and by 2011 he had 6

``` 10 friesian cows. ```

It is the testimony of the Plaintiff that in 2011 he was persuaded by his mother and sisters to allow the 1st Defendant who is also his brother to build a house on his land for purposes of living next to a family project of running a Secondary School called Kigezi Modern Secondary School and that he allowed the 1st Defendant to build a house on 50 x 100 feet on his land subject to the 1st 15 Defendant paying the sum of UgX 21,000,000/= but that the 1st Defendant defaulted and still owes the Plaintiff UgX 3,000,000/=

The Plaintiff further testified that at the time he was serving as a catholic chaplain for Nyakibale Hospital (Rukungiri District) and this was a demanding schedule 20 that could not allow him to visit his land regularly and as a consequence of his unavailability in Kabale District the 1st Defendant took advantage of his absence and trespassed on the rest of the land without his permission and in violation of their understanding that he would only build a small structure on a portion of the land. Accordingly the Plaintiff states that he was surprised when he discovered that the 1st 25 Defendant had trespassed on the entire Suitland, built an additional semi-permanent commercial building on the land, converted and sold the Plaintiff's dairy cows, destroyed and uprooted all the pasture on the Suitland besides attempting to sell part of the land to one Agaba Simon. The Plaintiff states

5 that in view of his position as a catholic priest and standing in society he attempted to resolve the dispute with the Defendants amicably but they decided to embark on a campaign of intimidation and blackmail against him. The Plaintiff testifies that in December 2017 the 1st Defendant issued an apology admitting to some of his illegal actions of trespass to land and selling of his dairy cows the said 10 apology was admitted as Exhibit P.3. That in May 2018 the Defendants invited the Plaintiff for a mediation meeting with lawyer Owomugisha Patricia where he offered to let the Defendants retain the portion of the land where the 1st Defendant had constructed and also offered to refund the monies to one Agaba Simon to whom the 1st Defendant sold part of the land as a way of resolving the matter 15 amicably.

According to the Plaintiff the offer was reduced to an agreement drafted by Owomugisha Patricia described as an agreement for sale of land where as not and that he signed it late in the evening after 7:00PM. (Admitted as Exhibit P.5) . The Plaintiff states that he has never thought of selling part of his land and the said 20 agreement was illegal because the Defendants did not furnish any consideration under it and could not therefore acquire any rights under the same agreement. The Plaintiff therefore prays that this Court grants the prayers sought.

The Plaintiff presented as his witness Resta Rwebishengye (PW2) a sister to the Plaintiff and the 1st Defendant, who testified that in 2011 the 1st Defendant 25 returned from Kampala where he was working to look after their Secondary School, Kigezi Modern Secondary School.

It is the evidence of PW2 that the 1st Defendant was renting until their late mother Dementria Tingironyanga persuaded the Plaintiff (PW1) to let the 1st Defendant

built a house on a small part of his land measuring 50 x 100 feet and that the 1st 5 Defendant build a house on the said part of the land to enable the Defendants reduce on their cost of living and live nearer to the family project of running the Secondary School. That the remaining bigger piece of the land had the Plaintiff's dairy project with 6 friesian cows and the plaintiff was hopping to improve on the stock. It is the evidence of PW2 that at the time of allowing the 1st 10 Defendant to build and occupy the structure on part of the Plaintiff's land the Plaintiff was a serving priest as a catholic chaplain for Nyakibale Hospital with a demanding schedule and therefore making it difficult for him to visit and supervise his land, as a consequence of this PW2 states that the 1st Defendant took advantage of this 15 and without the Plaintiff's consent took possession of the entire land, built a semipermanent commercial building, mismanaged the Plaintiff's six dairy cows, uprooted pasture, extracted sand, and built a brick fence and wall.

#### **Defendants Case.**

The 1st Defendant in his witness statement avers that it is indeed in a mutual family arrangement that the Plaintiff allowed the 1st 20 Defendant to construct a permanent house on the Suitland but that the Plaintiff requested for a consideration of UgX 21,000,000/= for the whole Suitland and not 50 x 100 feet as alleged by the Plaintiff. It is the evidence of the 1st Defendant that he was able to effect payment of UgX 18,000,000/= and on the Suitland constructed 25 permanent boy's quarters and later a residential house in a span of 9 years including a commercial house on the other side of the Suitland and also engaged in agriculture on the Suitland and that the Plaintiff never complained at all on the possession, use or payments for the Suitland by the Defendants.

The 1st Defendant states that from 2011 to date he and his wife the 2nd 5 Defendant have been in use of the entire Suitland and the Plaintiff has deceitfully avoided making an agreement of sale for them despite verbal demands by the Defendants. That in 2016 the Defendants attempted to sell a part of the Suitland to a one Agaba Simon who paid to the Defendant's UgX 9,500,000/= for the said portion of land 10 but that the Plaintiff protested the actions of the defendants in effecting the sale which was strange to the defendants. That in 2018 the concerns of the Plaintiff and Defendants were addressed in a mediation in Rukungiri at a mediation conducted by a lawyer invited by the Plaintiff resulting into an agreement (Exhibit P.5). That under the agreement the Plaintiff was to regain two portions of land 15 being a piece of land that had been sold to Agaba Simon as well as that portion where he had constructed a commercial building and that the Plaintiff would refund the money paid to [Agaba](/agaba) Simon as well as compensate the Defendants the sum of UgX 8,000,000 for the developments on that particular portion. The 1st Defendant avers that no protest was raised by the Plaintiff after the said deed 20 dated 29/05/2018 until the instant Suit was filed and further that the Plaintiff ignored the demand note for the money served upon him on the 08/01/2019 and that the same has been overtaken by events and wouldn't make economic justice given that the developments on the Suitland are over UgX 250,000,000/=.

The 1st Defendant also counterclaims for the sum of UgX 17,500,000/= that 25 accrued as a result of the undertaking in Exhibit P.5 being money refunded to a one Agaba Simon and also compensation in the sum of UgX 8,000,000/= for the developments on another part of the Suitland.

5 The Defendant presented Aharimpisya Steven (DW2) who in his witness statement testifies that on the 29/05/2018 he was called by the Defendants that they had disputes with the Plaintiff and that they met at the Defendants home and the Plaintiff was present with his lawyer. That the 1st Defendant informed them that he had paid UgX 18,000,000/= already for the Suitland with an outstanding 10 balance of UgX 3,000,000/= that the Plaintiff accepted but that it was later agreed that the land sold to Agaba Simon be compensated and also the land already developed by the Defendants be compensated by the Plaintiff to the tune of UgX 8,000,000/= and UgX 9,500,000/= was to refund the transactions with Mr. Agaba Simon. That the same was reduced into writing (Exhibit P.5).

#### 15 **Counsels Submissions.**

The Plaintiff's Counsel in his written submissions contends that the Defendants have no claim over the entire 1 acre on which they unlawfully trespassed since 2011 and that their entry on the rest of the Plaintiff's land without his consent and their disapproving acts of building additional semi-permanent commercial 20 buildings to collect rent, selling sand on the Plaintiff's farm, selling all the Plaintiff's cattle, uprooting the Plaintiff's pasture vegetation, selling a portion of the Suitland to one Agaba Simon are acts of trespass that interfered with the Plaintiff's lawful possession of the Suitland. To buttress his case Counsel relied on the decision in **Justine E. M. N Lutaya versus Sterling Civil Appeal No. 0011** 25 of 2**002** in which the Court held that trespass occurs when a person makes an

unauthorized entry upon the land and interferes or portends to interfere with another person's lawful possession of that land.

5 Counsel also relies on Exhibit P3 and apology letter dated 30/12/2017 in which the 1st Defendant admits interalia that he trespassed on the Suitland which belongs to the Plaintiff and he sold the same without his consent and also took his 2 cows valued at UgX 1,000,000/=. According to the Plaintiff's Counsel Exhibit P3 is an admission by the 1st Defendant to being a trespasser on the Plaintiff's 10 Suitland and to further fortify his argument relies on the **Provisions of Section 57** of the **Evidence Act** and the decision in **Kyoma's Farm and Tea Estate Ltd versus Attorney General HCCS No. 0014 of 2005.**

Counsel for the Plaintiff submits that the Defendants are liable in deceit and misrepresentation for writing to the Kabale District Land Board and purporting 15 to be owners of the entire 1 acre whereas not (Exhibit P.4); selling a portion of the Suitland to a one Agaba Simon when they had no proprietary rights to do so and selling the Plaintiff's cows that caused the depletion of his dairy project.

Counsel also attacks Exhibit P5 submitting that the same is void for having no lawful consideration **Contrary to Section 20** of the **Contracts Act** and that it is 20 extortionist in as far as it contains provisions that require the Plaintiff who is the lawful owner of the larger part of the Suitland to pay or compensate the defendants UgX 9,500,000/= being a refund of an illegal sale conducted by them to a one Agaba Simon that took place in 2016 and also payment of UgX 8,000,000/= as compensation for the illegal structures they built on his land 25 without his permission.

It is the argument of Counsel that this Court cannot sanction the said payments because the Defendants had a duty imposed on them not to sell property that does not belong to them without the consulting the Plaintiff and thus the Defendants

5 have come to Court with dirty hands and want to unjustly be paid for conducting illegal acts. To this effect Counsel relies on decision in **Mukula International Ltd versus His Eminence Cardinal Emmanuel Nsubuga and another CACA No. 0004 of 1981** in which the Court held that a Court of law cannot sanction what is illegal, and illegality once brought to the attention of Court, overrides all 10 questions of pleadings, including any admission and thereof and Court cannot sanction an illegality.

Counsel for the Plaintiff further submits that the defendants are liable in conversion for selling the Plaintiff's cows and destroying his entire dairy project. Relying on the decision in **Vincent Mukasa versus Nile Safaris Ltd Civil Appeal**

- 15 **No. 0050 of 1997** in which it was held that conversion is deemed compete when a party to an agreement uses goods in a manner in consistent with the right of a true owner with the intention to assert a right which is in consistent with the owners right. Counsel for the Plaintiff submits that the 1st Defendant in Exhibit P3 admits to selling the Plaintiff's 2 cows and promises to refund the same. Which - 20 action Counsel contends amounted to use of the Plaintiff's cows in a manner that was inconsistent with the Plaintiff's rights.

Counsel for the Defendants in his written submissions contends that the Defendants are not trespassers on the Suitland having been allowed to settle on the same by the Plaintiff and build a house thereon and that this was reduced into 25 writing in Exhibit P5 by an advocate of the High Court Kemigisha Maclean in which it was agreed that the purchase price of UgX 18,000,000/= had in 2017 been paid of as consideration and the same described as a piece of land with all developments therein located at Mutojo Village, Bushuro Parish, Kitumba Sub 5 County, Kabale District bordering Top; Access road to Mutojo left; Fr. Byarugaba Narcisio (Vender) Bottom Kibirayende Charles (deceased) Right Zikereta (deceased) already demarcated with the vendor undertaking to pay the purchasers UgX 17,500,000/= as refund of UgX 9,500,000/= to Agaba Simon for the part of the land they had wrongly sold to him and UgX 8,000,000/= to the 10 purchasers as compensation for the building built on the vendor's land by the

purchasers not later than 01/01/2019.

It is the submission of Counsel for the Defendants that the above agreement confirms that the issues between the parties were resolved and that the Defendants herein were no longer trespassers on any part of the Suit property 15 and the Defendants have a valid claim on the Suitland.

Counsel also contends that the constructions undertaken by the Defendants on the Suitland were within the knowledge of the Plaintiff who admitted to attending family and official functions at Rushoroza Cathedral which is near the Suitland.

Further that the Plaintiff admits that when the 1st Defendant was given where to 20 construct no agreement was made and no measurements were taken and that the agreement that the 1st Defendant had overstepped his boundary said to have been 100m x 100m cannot be proved.

Counsel further argues that the Plaintiff's claims that he rescinded Exhibit P5 is just a matter of creativity and none of the parties or witnesses was ever served 25 with the said notice.

## 5 **Determination.**

The Plaintiff in this matter is a priest while the 1st Defendant is a catechist.

The two are also biological brothers.

It is not in dispute that the 1st Defendant settled on part of the Suit property with the full consent of the Plaintiff and there on built his residential house and boy's 10 quarters. This however was not an act of charity on the part of the Plaintiff. The 1 st Defendant was to part with the sum of UgX 21,000,000/= for this part of the property stated by the Plaintiff to measure 100 x 50 feet and that the 1st Defendant has so far paid only UgX18,000,000/= of the same. The 1st Defendant does not dispute the outstanding sum of UgX 3,000,000/= but contends that the sum of 15 UgX 21,000,000/= was for the entire Suit property said to measure 1 acre and not merely the 50 x 100 feet alleged by the Plaintiff. This is where the dishonesty

in this matter has its origins.

Counsel for the 1st Defendant rightly points out that there is no documentary evidence dating back to 2011 when the parties reached this decision nor was any

demarcation made to determine the boundary of the 1st 20 Defendant by the Plaintiff. It is therefore the conduct of the parties since the oral contract was made in 2011 that will help shade light as to the true intents of their engagement.

It is the evidence of Resta (PW2) a sibling to the Plaintiff and 1 st Defendant that the Plaintiff agreed to let the 1st Defendant to build on his property on a portion

measuring 100 x 50 feet but that the 1st 25 Defendant had since encroached on the entire property.

- 5 I am prepared to accept this version as being the truth in view of Exhibit P3 which is an apology letter that is not in dispute drafted by the 1st Defendant on the 30/12/2017 to the Plaintiff in which he interalia makes apology for trying to sell the Plaintiff's land without his consent and taking his 2 cows valued at UgX 1,000,000/= with a promise to refund the physical cows. - The 1st 10 Defendant under cross-examination admitted that Exhibit P3 related to the Suitland and that the same was witnessed by his wife (the 2nd Defendant) and his 3 sisters. This admission therefore means the 1st Defendant is telling lies that the UgX 21,000,000/= he paid to the Plaintiff was for the entire Suit property. It also corroborates the Plaintiff's evidence that he left his cows on his part of the

15 property.

This now brings me to Exhibit P5. The contents of Exhibit P5 can best be described as a legal puzzle. This is because it does not make legal or economic sense in the context of this case. Exhibit P5 is an agreement for sale of land dated 29/05/2018.

The vendor is the Plaintiff while the purchasers are the Defendants.

20 The subject matter described therein is the Suit property that is also said to neighbor the Plaintiff to the left. The consideration is for UgX 18,000,000/= with the terms of payment reading:

"*The purchaser had in 2017 paid all the consideration agreed upon by all the parties to these presents amounting to UgX 18,000,000/= being the consideration*

25 *agreed upon for these presents, the vendor acknowledges receipt of the said consideration by affixing his signature and or mark on this agreement"*

While the clause on transfer and vacant possession reads that:

5 *"The purchasers have been in vacant possession of the land since 2011 and are still enjoying vacant possession of the same at the time of execution of this agreement"* The special covenants provide that:

*"1. The vendor guarantees that he is the lawful owner of the land sold and has an absolute right/capacity to sell it and it is free from any claim and or encumbrances.*

10 *2. The vendor undertakes to pay to the purchasers UgX 17,000,000/= being refund of UgX 9,500,000/= to Agaba Simon for part of the land they had wrongly sold to him and UgX 8,000,000/= to the purchaser as compensation for the building built on the vendor's land by the purchasers not later than 01/01/2019"*

The same is signed by the parties.

15 I will begin with the description of the land for sale which describes the Plaintiff as being a neighbor to the same on the left. This obviously goes against the 1st Defendant's witness statement that he lays claim to the entire property. This Court on the 14/04/2023 visited locus and none of the parties pointed out the land to the left of the Suit property said to be owned by the Plaintiff and 20 neigbouring the Suit property.

What this Court observed was that the 1st Defendant's residential house and 5 lockups were within a perimeter wall with the other part of the property being surrounded by a live fence (that is Plants and short trees).

It would appear therefore that the 1st Defendant in explaining Exhibit P.5 makes 25 it clear that under the agreement the Plaintiff was to regain 2 portins of land one being a piece of land that had been sold to Agaba Simon as well as that portion

5 where he had constructed a commercial building the intention of Exhibit P5 was to allow the 1st Defendant retain the property within the perimeter wall and the Plaintiff neighbours him beyond the same on the 2nd part fenced by the live fence and on which 2 other abandoned commercial structures were erected. Behind these structures is also the land that was purportedly sold to one Agaba Simon in 10 Exhibit P3 and the subject of refund in Exhibit P5.

This therefore explains the clause on the refund of UgX 9,500,000/= by the Plaintiff to the Defendants for part of the land that they had wrongly sold to Agaba Simon and the UgX 8,000,000/= as compensation for the building built on what is clearly stated to be the Plaintiff's land by the Defendants. The challenge in

15 Exhibit P5 was with the draftsmanship of the same and this created the loophole for the Plaintiff to disregard it for its unfairness and for the Defendants not only to further lay claim to the entire Suit property but also along with it demand that the Plaintiff further pays the Defendants UgX 17,500,000/=.

I am fortified in this belief by the response of the 1st Defendant under cross-20 examination when he replied thus:

*"I had wrongly sold land to Agaba Simon. The UgX 8,000,000/= was to compensate me for the building but the Plaintiff did not so I am still utilizing it. I say that if the covenant (Exhibit P5) is fullfiled I own part of the Plaintiff's land but if he does not pay me then I own all of his land"*

25 It therefore follows that there was a meeting of minds that the Defendants retain the upper part of the Suit property while the Plaintiff takes possession of the lower part.

- 5 The Plaintiff however takes issue with the payment of UgX 17,500,000/= to the Defendants and his Counsel attacks Exhibit P5 as being extortionist in nature and offends the **Provision of Section 20** of the **Contracts Act** on the basis that no consideration moved from the Defendants to the Plaintiff's for the Suit property. The Plaintiff himself testified that he signed Exhibit P5 while in his car after he 10 had been involved in a reconciliation meeting with the Defendants and that the same was drafted by one Patricia as a sale agreement that he knew nothing about and he was told that he should sign the agreement if he wanted peace and - reconciliation. The Plaintiff it must be noted does not dispute signing Exhibit P5.

The submission of Counsel for the Plaintiff that Exhibit P5 is extortionist in nature 15 is putting it rather mildly.

The Defendants trespassed on the Plaintiff's property when they exceeded the portion permitted by the Plaintiff, they sold his cows and a portion of his property and this besides still owing him UgX 3,000,000/= as the purchase price of the Suit property on which he had allowed them to settle on.

20 In the absence of any consideration moving from the Defendants to the Plaintiff's save for the part on which they occupied with the full consent of the Plaintiff it is my finding the Exhibit P5 was made without consideration for the rest of the property and the same is therefore void to that extent.

On whether the Defendants are liable in deceit and misrepresentation in relation 25 to Exhibit P4 which is a letter by the Defendants to the Chairperson District Land Board Kabale notifying him of encumbrances on the Suit land following the Plaintiff's application for registration of the same and requesting that the process

- 5 be halted until a settlement is reached. I cannot fault the Defendants given that they have some interest on the Suit property having paid UgX 18,000,000/= for the same and also having entered upon part of the Suit property with the consent of the Plaintiff. There appears to be no evidence that the Plaintiff had in his application for registration severed off the part that he had sold to the Defendants. - 10 In this regard the Plaintiff has not proved his assertions.

Issue No. 1 is answered partly in the affirmative in as for as it relates to the Defendants having exceeded the portion that they were allowed to settle on by the Plaintiff.

Issue No.2 answered in the negative.

15 Issue No. 3 answered in the negative.

Issue No. 4 is answered partly in the affirmative in as far as it relates to the portion of the Suitland allowed by the Plaintiff for the Defendants to settle on. Issue No. 5 is answered in the affirmative.

## **Issue No. 6: Remedies.**

20 The Plaintiff seeks prayers that he is declared the owner of the entire Suit property.

As already indicated the Plaintiff in 2011 when he allowed the 1st Defendant to occupy a part of his land states that he allowed him on a plot of 50 x 100 feet and this not in writing. The Plaintiff testified at the locus on 14/04/2023 that this plot

25 is where the Defendants' residential houses are constructed upon and does not include the compound to the same. This Court observed the Defendants had 5 erected a perimeter brick wall that enclosed the residential area of the Defendants home separating it from the rest of the Suit property.

I will fault the Plaintiff for not strictly demarcating the area that he had allowed the Defendant to settle on in the absence of any documentation to the same.

To allow the Plaintiff to deprive the Defendants of any stretch of land that acts as 10 their front yard or compound would in my view be rather harsh. I am therefore prepared to accept the perimeter wall as being the boundary between the Plaintiff's and the Defendants but this shall be contingent upon the Defendants making full payment of the purchase price of UgX 21,000,000/=. A declaration to this effect shall issue.

15 A declaration that the Defendants trespassed the Plaintiff's property beyond the perimeter wall is also issued.

A declaration is hereby issued to the effect that the agreement between the Plaintiff and the Defendants dated 29/05/2018 is null and void.

An order of eviction is issued against the Defendants from the property exceeding 20 their perimeter wall.

The Plaintiff prayed for an order of mense profits for the use of his land by the Defendants.

## **The Civil Procedure Act defines mense profits as:**

*"Those profits which the person in wrongful possession of the property actually* 25 *received or might with ordinary diligence have received from it together with*

5 *interest on those profits but shall not include profits due to improvements made by the person in wrongful possession"*

The Plaintiff did not lead evidence with actual figures to this effect. It shall therefore be denied.

The Plaintiff has prayed for general damages for trespass and conversion.

The 1st 10 Defendant in Exhibit P3 admits to taking the Plaintiff's 2 cows valued at UgX 1,000,000/= with promises to refunding the same.

There is no evidence that the 1st Defendant has complied with this undertaking.

The Defendants also trespassed onto the Plaintiff land and denied him his its use since 2011.

15 General damages are at large and at the discretion of Court.

In the assessment of the same I will factor in the value of the 2 cows in Exhibit P3.

I find the sum UgX 7,000,000/= sufficient to cover general damages for all the distress and inconvenience caused to the Plaintiff by the Defendants.

- 20 In the final results Judgment is entered in favour of the Plaintiff in the head Suit, the Defendants counterclaim is dismissed with the following orders issuing: - 1) A declaration that the Plaintiff is owner of the Suit property beyond the brick perimeter wall that shall be the boundary between the Plaintiff and the Defendants.

- 5 2) An order is issued that the Defendants shall pay to the Plaintiff the sum of UgX 3,000,000/= as the outstanding purchase price of their portion of land on which they have built their residential house and lockups enclosed in a perimeter wall. - 3) A declaration that the Defendants trespassed on the Plaintiff's property 10 beyond the perimeter brick wall. - 4) A declaration that the agreement between the Plaintiff and the Defendants dated 29/05/2018 is null and void. - 5) An order for demolition of the structures built on the Plaintiff's property beyond the perimeter wall. - 15 6) An order of eviction against the Defendants from the property exceeding the perimeter wall. - 7) General damages of UgX 7,000,000/= is awarded to the Plaintiff. - 8) Interest on (2) and (7) at Court rate from the date of Judgment until payment in full. - 20 9) Costs of this Suit and the counterclaim are awarded to the Plaintiff.

It is so ordered.

Before me,

…………………………….. 25 **Samuel Emokor Judge 27/06/2024.**