Damanico Properties Limited v Major General Muheesi (Civil Suit 45 of 2016) [2024] UGHCCD 168 (18 October 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MUBENDE**

#### **CIVIL SUIT NO. 045 OF 2016**

**DAMANICO PROPERTIES LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF**

#### **VERSUS**

# **MAJOR GENERAL GEOFFREY MUHEESI :::::::::::::::::::::::::::::::::::::::::::DEFENDANT**

#### **BEFORE: HON. JUSTICE. SSEKAANA MUSA**

#### **JUDGMENT**

The plaintiff filed this suit for a declaration that the defendant is a trespasser on the suit land comprised in FRV 63, Folio 1 situated at Kabulamulilo in Kiboga District; an order of eviction of the defendant from the said land, a permanent Injunction, mesne profits, general damages and costs of the suit.

The plaintiff is a registered proprietor of land comprised in FRV 63 Folio 1 and sometime in 2009 the plaintiff's directors found the defendant and his employees trespassing on the land by clearing and cultivating the suit land, deployment of workmanship of about 15 men and construction of structures on the suit land.

The defendant denied the cause of action of the plaintiff and contended that he is a lawful occupant of the suit land. By way of counterclaim contended that the plaintiff is not the lawfully registered proprietor and sought to have the plaintiff's title cancelled by the Commissioner Land Registration.

The counterclaimant/defendant averred that through the title of lawful occupants before him been a lawful occupant to the suit land for over 20 years. That sometime in 2009, the counter-defendant/plaintiff sent its agents to the suit land claiming ownership of the same land as registered proprietor.

The counterclaimant claimed that the plaintiff's registration and certificate of title are a forgery and that the counter-defendant/plaintiff has no colour or claim of right to come onto the suit land. The plaintiff is not a *bonafide* purchaser for value without notice since the action of plaintiff was fraudulent by forgery of transfer forms, certificate of title and purporting to purchase the land free of any encumbrances.

The counter-defendant in reply to the counterclaim contended that the allegations of fraud and forgery by the counterclaimant are denied and baseless and unfounded and the defendant shall be put to strict proof.

The parties filed a joint scheduling Memorandum with the following agreed facts and issues;

# *Agreed Facts*

- 1. On the 28th day of May, 1998, the plaintiff/counter-defendant was registered as a Proprietor of land comprised in FRV 63, FOLIO 1 situated at Kabulamulilo in Kiboga and Mityana districts under Instrument No. 294366. - 2. The defendant/ counterclaimant is in occupation of the suit land.

# *Agreed Issues*

- *1. Whether the defendant/counterclaimant is a trespasser to the suit land comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and Mityana Districts.* - *2. Whether the plaintiff/counter-defendant obtained registration as proprietor to the suit land comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and Mityana Districts illegally and/ or fraudulently.*

# *3. What remedies are available to the parties?*

At the trial, the plaintiff was represented by *Counsel Tuhimbise Alex*. The defendant was represented by *Counsel Albert Byamugisha*.

This matter was heard from Kampala Civil Division by virtue of an application by the plaintiff's counsel and the same was granted by the Principal Judge on 2/10/2019.

The plaintiff led evidence of 7 witnesses while the defendant had 3 witnesses who all testified and were cross examined in court.

The parties were directed to file final written submissions that have been considered by this court.

#### *DETERMINATION*

# *Whether the defendant/counterclaimant is a trespasser to the suit land comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and Mityana Districts.*

Counsel for the plaintiff submitted that the plaintiff bought this land from Khimchand K Shah Limited who had acquired it on 4th day of January 1969. The suit land came under the hands of government in or about 1972 upon the expulsion of Asians and on 21st day of May 1997, Khimchand K Shah Limited repossessed the suit land. Upon repossession of the same land, it was later sold at 35,000,000/= to the plaintiff and it was duly registered in their names.

The plaintiff's witnesses and specifically PW1 testified that at the time of acquisition the suit land was vacant with no squatters or bonafide or lawful occupants. The said land was under supervision of the Company through Bob Busulwa its Operations Manager from 2001 to 2007 under Bob Busuulwa and later with James Kagoro from 2007 until 2009.

That the land was rich with natural vegetation including trees. Shrubs and grasses which they claim that they had plans to preserve nature and also carry out commercial farming as well to create a holiday home for the family. PW2 testified that Khimchand K Shah Limited handed over peaceful and vacant possession and there were no occupants or squatters or trespassers on the suit land at the time.

The plaintiff's witnesses testified that the defendant trespassed on the land in July 2009. The said land was cleared and cultivated the same with the workmanship of about 15 people with heavy machinery, destroyed trees and shrubs that were on the land and burnt them into charcoal.

The defendant in his submissions contended and testified that he acquired this land from several bibanja owners who were in occupation of the land. The defendant's witness DW III testified that they knew Walsh as the owner of the land and his wife was buried on this land.

The defence counsel submitted that the evidence of PW I on vacant land was hearsay, when she testified that *"in 1998 the suit land was vacant. My husband told me it was vacant".* The defence witness DWIII testified that the plaintiff never took possession of the suit land or carried out any activities. He had lived in the area since 1971 and they never knew the plaintiff as the owner of the land.

# *Analysis*

The foundation of an action for trespass to land is possession and to maintain trespass against a wrongdoer it is not necessary that the plaintiff's possession is lawful. Anyone who is in possession or is deemed to have been in possession at the time of the trespass can bring an action for trespass. Trespass is unjustified intrusion by one person upon land in possession (actual or constructive) of another.

The plaintiff's case for trespass would appear straight forward upon the principles for trespass to land once the plaintiff proved that she was registered owner of the suit land and the defendants occupy/use the land without the plaintiff's consent/authority. However, land ownership and possession must investigate whether the land in issue is not affected by the Land Act which creates interests in land upon possession by lawful or bonafide occupants. This could be equated to squatters acquiring land by adverse possession.

Trespass as a tort is a violation of the right to possession and the plaintiff must show that he has the right to immediate and exclusive possession of the right which is different from ownership. A complaint or claim of trespass however connotes interference with or injury to possession.

The defendant in his defence contends that he was in possession and he never entered on the land as contended by the plaintiff. He acquired interests of land of different persons who were cultivating on this land. The general principle is that until the contrary is proved, possession in law follows the right to possess.

The defendant contended that he was in possession and has cultivated coffee on the entire piece of and after acquiring the interests of several persons who were in possession at the time. The persons who were in possession of the said land were in *de facto* use and occupation and therefore claimed ownership or interest as bibanja owners or lawful occupants under the Land Act. The plaintiff's contention of trespass cannot stand on its own as a common law cause of action in light of clear provisions of the Land Act which takes precedence in the hierarchy of laws in Uganda and gives protection to persons who have taken possession of land and remained in occupation either as bonafide occupants or lawful occupants. Therefore, a person who cannot prove that he is in possession cannot sue in trespass.

The plaintiff acquired this land through a purchase agreement with the former registered owner who repossessed this land in 1998. According to the documents of title and transfer process at land office, the Seller got registered on the land title upon repossession on *28th May 1998 at 11:40AM* vide Instrument No. 294365. After 5 minutes the plaintiff bought or got registered on the same day *28th May 1998 at 11:45AM* vide Instrument No. 294366.

It is clear that at the time the plaintiff acquired this land, they did not inspect the land to acquaint themselves with what was on the land. The former registered proprietors acquired this land in 1969 and they were expelled from Uganda, during which period they were not in Uganda. They only returned and repossessed this land and got registered on the land title in 1998. They do not claim to have been in possession after repossessing the said land. They merely claimed that the land was vacant in 1998. It is inconceivable that this land was vacant without any persons occupying the same as they wish this court to believe for this period of time between 1972 to 1998 when they purchased.

The plaintiff witness testified that the land was rich with natural vegetation including trees, shrubs and grasses and they had plans to utilize the land and wished to preserve nature and carry out commercial farm and create a holiday home. What confirms to this court that the plaintiff's directors had not inspected the land in issue at acquisition is the fact of opening boundaries in 2008 after 10

years since they had been registered in 1998. The evidence of Busulwa (PW3) that the land was vacant and rich in green vegetation between 2001-2009 is quite unbelievable.

The plaintiff in their further evidence they attempted to take possession and control over the land and it proved futile when the defendant repulsed them and prevented them from accessing the land. They reported a case at police on 8th December, 2009 and they claim to have established that the defendant trespassed on the suit land. However, PW 6 testified that around 2008 the defendant applied for permission to utilize the land from the Chairman and the permission was granted. This contradicts the other witnesses of the plaintiff who claimed that the land was vacant.

The defence witnesses (Ssemwanuke) testified that in 2008 the defendant started buying off bibanja holders and he commenced cultivation and he wrote requesting to use the idle land within the area. The plaintiff's directors were not known to be owners of the land in issue through their company. The plaintiff ought to have made it known to the area local authorities that the land in issue was theirs and before they assigned their alleged keepers/managers-Busulwa who were not staying on this land or in the area.

This land was never vacant as the plaintiff contends but rather the same was being utilized by the residents as their bibanja which interest the defendant acquired through purchase. The land was being cultivated by different bibanja owners as stated by PWII who was a Muluka Chief for the area, and he introduced the defendant to the bibanja holders and he purchased the said portions of land and he witnessed some of the sale agreements. Bob Busulwa who testified for the plaintiff as PW3 was not known to any of the residents in the area.

The claims of the trespass against the defendant must be appreciated in light of the above facts. The plaintiff was avoiding the existing legal regime on land which allows or recognizes persons who have held land for some time without any interruption by the registered proprietor. The common law claim of trespass cannot dispossess a defendant who purchased bibanja from the different owners of the different portions of land. It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it.

Indeed, the tort of trespass is so, inextricably, tied to possession that a person in possession of land, even as a trespasser, can sue another person who thereafter comes upon the land. In other words, a person who has no title over a piece of land, but who is in possession may successfully sue if an entry is made into the land without his consent. An action for trespass thus presupposes that the plaintiff is in possession. The plaintiff in this case was not in possession (actual or constructive) and could not sustain an action in trespass to land. However, a trespasser does not by virtue of his/her act of trespass acquire lawful possession of land and cannot sustain an action trespass over the other person who was dispossessed of or ejected from the land.

The plaintiff contended that the alleged purchases were illegal and contrary to the Land Act section 34(3) and 35(1) which prohibits transacting in land without express consent of the landlord. According to counsel the actions of the defendant were illegal since the landlord/plaintiff was not given an option to purchase.

The plaintiff's claim for the land did not arise until the late 2008 when the plaintiff's directors through their agents tried to enter on the land but it was already occupied by the defendant or other bibanja owners or lawful occupants. By this date the cited law was not applicable to the facts of the case and it was not an enacted law since the Land Amendment Act was, 2010 commenced on 12th February, 2010. The actions of the defendant of acquiring the pieces of land in 2008 were not expressly barred by law.

The persons who were occupying the land as bibanja owners or lawful occupants did not know the plaintiff as their landlord. They at all times thought that the land belonged to a one Walsh who had since left the country long ago. The plaintiff never introduced themselves to the different bibanja owners to be known as the new landlords in 1998 and their lack of knowledge cannot be blamed on them. They were at liberty to deal with their bibanja as they so wished with the defendant in absence of the express consent of the plaintiff. The bibanja owners could seek consent from a landlord who was unknown to them and the plaintiff in this matter had never sought to be known by the bibanja owners on the said suit land. *See Asuman Mugenyi v M Buwule SCCA No. 14 of 2016*

The persons who were in occupation of the said land were in possession of the said land since 1970's and remain in possession until they surrendered their interest to the defendant. DW2 testified that he was a resident since 1971 and he confirmed that their where people occupying this land and that they only left the land during the 1981-1986 war. They only returned later and continued utilizing the land until when the defendant sought to acquire their interests in 2008. Long possession is a defence which results in being a bonafide occupant or lawful occupant.

This court is duty bound to consider the totality of evidence lead by each of the parties. The assessment of the said evidence makes the defendant's evidence more credible than the plaintiff on possession and occupation of the land in issue. This has given this court a reasoned belief of the evidence of the defendant or a reasoned preference of his version to the plaintiff. *See Adesina v Ojo (2012) 10 NWLR p.552*

The defendant is not a trespasser on this land since he acquired land interests from several bibanja owners and lawful occupants. The defendant has established a coffee plantation on the entire piece of land and is putting the suit land to good use, which enhances the development in the area and is in full possession of the suit land as confirmed by court during the visit to the locus in quo.

# *Whether the plaintiff/counter-defendant obtained registration as proprietor to the suit land comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and Mityana Districts illegally and/ or fraudulently.*

The plaintiff's counsel submitted that the land was lawfully acquired from the former registered proprietor-Khimchand K Shah Limited who had just repossessed the land vide Certificate of Repossession No. 3037. The plaintiff paid for the said land at a valuable consideration of 35,000,000/= which was paid in full.

Pw2 testified that he personally signed and sealed (executed) the transfer form on behalf of Khimchand K Shah Limited in favour of the plaintiff. The other witnesses equally confirmed that the land is registered in names of the plaintiff upon satisfying all the requirements for registration.

It was the plaintiff's submission that under Section 59 of the Registration of Titles Act it is provided that all courts ought to treat a Certificate of title as conclusive evidence, the fact the person is named on the Certificate of title is the proprietor of the land in question.

The defendant submitted that the names of the signatories of the transferors and transferees on the transfer form are not given. The transfer form was not attested by any witness. In his view it was not duly executed in accordance with the law.

The defendant contends that the transfer of the land was fraudulent since it was indicated in the transfer…the user is grazing. Which in defence counsel's view was false and on this basis he sought to have the title impeached.

## *Analysis*

It is true that the transfer forms never indicated the names of the directors or person who signed on behalf of both companies in the transaction. The companies used their respective company seals which clearly show that the transfer was legal and in accordance with section 132 of the Registration of Titles Act. The two directors who executed the agreement on behalf of the companies appeared in court as witnesses and confirmed the transfer. PW2 in his testimony and cross examination confirmed that the company sold and an agreement was signed to that effect and he personally sealed the same and the transfer forms.

This court cannot take the simple errors in failure to indicate the names of the directors who signed on behalf of the company to be the basis for impeachment of the plaintiff's title allegedly for illegality. Transfer of title is not merely handing over any documents to the purchaser, but documents that enable the purchaser to secure the legal title. The plaintiff was duly handed the relevant documents that secured their legal title and the Registrar accordingly concluded the transfer of the land in their names without any question.

This court agrees with the plaintiff's counsel that the defendant's submission on fraud is redundant, misplaced and of no legal effect. The authorities cited in support thereof are quite distinguishable on the facts in this case. The plaintiff legally obtained registration on the suit land without any fraud.

# *What remedies are available to the parties?*

The plaintiff's claim fails in the circumstances of this case and the defendant is not a trespasser on the said land and stands dismissed with no order as to costs.

The defendant/counterclaimant's counterclaim equally fails since the plaintiff was lawfully registered as a registered proprietor of the suit land. The counter-claim is dismissed with no order as to costs.

I so Order

*SSEKAANA MUSA JUDGE 18th October 2024*