Galiwango v Kimbuge and 9 Others (Civil Suit 28 of 2021) [2024] UGHCLD 171 (25 June 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DMSION)

#### CIVIL SUIT NO. OO28 OF 2021.

GALIWANGO WILLIAM:: : : :: : : : : : : : : :: :: :: : : : : :: : ::: : : : : : :PLAINTIFF

#### VERSUS

l. KTMBUGWE EMMANUEL (KAWEESA)

- 2. KYABAGU JOSEPH - 3. HENRY MUTEBI - 4. TEBANDEKE SEZALO - 5. KAYONDO ALI - 6. MUSANJE BAMWEYANA: : : : : : : : : : : : : : : : : : : : : : : : : : : :DEFENDANTS - 7. NDAWULA HERBERT - 8. WASSWA DAVID - 9. NAKIBINGE GOERGE WILLIAM - IO. KABAKA OF BUGANDA

#### BEFORE: HON. MR. JUSTICE TADEO ASIIMWE

### JUDGMENT

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#### BACKGROUND:

The plaintiff s claim against the defendants is for recovery of land at Maganjo "B" Kawempe-Jinja Mawuno, and land at Manja, General damages, punitive damages and costs.

On the other hand, the 1't - 9th defendants admitted the plaintiffls claim and entered a consent Judgment which was set aside by this Court on the application of Counsel for Kabaka hence an amendment to add the lOth defendant.

The lOth defendant denied the allegations of the plaintiff claiming ownership of the suit land and arguing that the transactions between the plaintiff and the 1s-9th defendants are null and void. That the I'L91h defendants had no powers to deal with the suit land without the consent ofthe lOth defendant.

In a scheduling memo, the parties agreed on the following issues; -

- l. Wherher the plaintiff lawfully acquired the suit land/kibanja. - 2. What remedies are available to the parties.

At trial the plaintiff was represented by Counsel Namugali Julius while the l't-9th defendants were represented by Counsel Semugenyi Fred and the lOth defendant was represented by Counsel Mukasa T aha.

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The plaintiff s Counsel dropped his case against the 1't defendant who is dead and the same was allowed by this Court. He then made an application for Judgement on admission against the 2nd to 9th defendants who did not deny the claim. Owing to the nature of lOth defendant's case, this Court deferred the decision till all evidence has been is fully recorded for <sup>a</sup> meaningful decision to avoid confusion related to issues of execution on ground. As a result, counsel for the 1s to gth defendants never led any evidence in the case save the pleadings.

At the conclusion of the trial, both Counsel for filed written submissions which I will consider in this Judgement.

#### THE LAW

The general rule is that he or she who asserts must prove and the burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on a balance of probabilities.

## In Miller V Minister of Pensions 1194712 ALL E R 372 Lord Denning stated:

"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If the evidence is such that the tribunal cqn sqy, we think it more robable than

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not, the burden of proof is discharged but if the probabilities are equal, it is not."

It is also the position of the Law thqt the evidential burden does not shift to the defendant unless there is cogent and credible evidence produced on the issue for determination.

In a bid to proof their case, the plaintiffs led evidence of 8 witness and closed while the defendants called 1 witnesses and court called one witness.

To prove its case, the plaintiff called I witness while the defence also called 1 witness.

PWl, Galiwango William testified that he was approached by members of the Malyante Clan/linage lst-8th defendants seeking for his services to help restore their head Prince Kimbugwe Emmanuel (deceased) as a true heir of Omutuba gwa Kaweesa linage. That the heirship and leadership to the said linage had been taken over by a one Prince Suuna Joseph, the ultimate wilder of all powers and decision making in the sais Mutuba of Kaweesa freezing out the rightful heir. That under the said memorandum of understanding, he was supposed to be paid in kind through land out of land forming the Mutuba of Kaweesa property, approximately 6 acres, 3 from Kawempe Kinja Mawuno and the other 3 from Manja all within Kawempe in Wakiso district, at completion of his duty of aiding the return of leadership of Mutuba of Kaweesa to Prince Emmanuel K bu

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That in tracing the true heir to the Omutuba gwa Kaweesa, the Chief Prince set up a committee of Princes from the Royal Kingdom of Buganda who carried out through investigation about the rightful heir to the clan of Malyante Omutuba of Kaweesa and came up with the conclusion that indeed Prince Emmanuel Kimbugwe was the rightful heir and head of Omutuba gwa Kaweesa who was eventually installed to be in charge of all the properties belonging to the said Omutuba gwa Kaweesa. That in recognition of his efforts, the I't-Sth defendants made an agreement to give him 6 acres of land as per the memorandum of understanding (PE I ). That he took possession of the said land and started construction of houses. However, some unscrupulous persons under the instructions of the defendants chased offhis builders and have since refused him to step on the land. That when matters were brought to Court, the l0th defendant through his attorney objected his ownership to his suit land and stated that the land belongs to the l0th defendant by presenting a copy of the land title. That the Kabaka is a custodian of the land on behalf of the Royal family and that the suit land had been given to Prince Kaweesa the son of Ssekabaka Kiggala the 5th Kabaka of Buganda Kingdom and therefore the land in issue belongs to Omutuba gwa Kaweesa since some of the l't-Stl' defendants have old houses and burial grounds. That he has been violently stopped by Buganda Royal Guards from accessing the land yet has erected houses on the same. That he has been frustrated by the actions of the members of Malyante together with agents of the 1Oth fendant from

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enjoying the fruits of his labor (suit land) and other lands, yet the same was part payment of his efforts under a memorandum of understanding between him, I'I-8th defendants. That several reminders to the defendants to give him vacant possession of his rewards has fallen to deaf ears, leaving him frustrated in fear that the entire memorandum of understanding may be breached by the defendants.

In cross-examination by lOtr' defendant Counsel, he confirmed that the suit land was acquired from I'L9th defendants and that he got a kibanja as payment for services offered to I \$-9th defendants to reclaim the leadership of the "Mutuba gwa Kaweesa." That the work he did was restoration of the I't defendant as the head of the Omutuba gwa Kaweesa which had been taken over by one Joseph Suuna, a stranger to the lineage- That he however doesn't have any role in Buganda Kingdom but is aware that the registered proprietor of the suit property is His Highness the Kabaka of Buganda by virtue of his office. That the Kabaka and his agents did not consent to my memorandum of understanding (PE I ) between him and 1 't-9th defendants. He further confirmed that the head of Buganda Royal clan is currently one Musanje Kikulwe Godfrey and he was the head when the M. O. U (PEl) was signed but did not sign on the MOU (PEl). That however the royals through the plaintiff previously sold of part of the suit land to 3 different persons,, Augustine Twesiime as per DE2, Mugabe Gilbert and Nyehaiveyo Aggrey. That the Kabaka o uganda and the f

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Royal head did not consent to these sales. That the said buyers were chased away by Kabaka's Royal guards and Kabaka protection unit on behalf of the Kabakaship. That there is a signpost by agents of Kabaka in the suit land signifl,ing Omutuba-Gwakawesa as owners.

In Re-examination, he clarified that the Kabaka is just a trustee of the suit land for the Royal clan who own the suit land but the suit land was given to Kaweesa.

color of right in the suit land and could not pass anv bette nterest to the DWl, Kizito Bashir Juma testified that he holds Power of Attorney of the 1Oth defendant under which he is authorized to represent His Majesty in Courts of law and give evidence on his behalf. That he knows the suit land being part of the land belonging to the Kabaka of Buganda and the same is located at Maganjo B Kimbejja-Jinja Mawuuno. That the portion which is the subject of the suit land has always been preserved by the Kingdom of Buganda for cultural significance. The suit land is fenced with a perimeter wall constructed by Buganda Land Board and the same is equivalent to approximately 03 acres and guarded by the l0th defenclant's Royal Guards. That the 10tr'defendant is the Principal care taker of the suit land and not the l't-9th defendants as portrayed' That the suit land has always been preserved and the same is not available for sale and/or be parted with by way of donation or gift except with the consent of the Kabaka of Buganda. That the I'L9th defendants have no interest or

r r Page 7 plaintiff. That when the l0tr' defendant obtained information that the plaintiff and the I'L9Ih defendants were illegally transacting with the suit land, and subdividing the land into several pieces, he instructed the deployment of the Royal Guards to safeguard the land from encroachers' That the plaintiff and the 2nd defendant appear to be illegally selling the suit land on l0'h, March 2020 to third parties even before the filing of this suit in court and without the consent of the lOth defendant. That the plaintiff has no cultural role/function in the Kingdom of Buganda in the streamlining and restoration of royal heads within the Royal clan. Such powers are vested with the chief Prince (ssabalangira) under the guidance and direction of the Kabaka of Buganda. The current Chief Prince is Kikulwe Musanje Godfrey who also operates on directions of the Kabaka of Buganda. That I't-9tr' defendants had no such powers to appoint the plaintiff and bestow upon him powers to align and stream the leadership of "Omutuba gwa Kaweesa" under which he claims to have acquired the suit land as consideration for his services. The services the plaintiff claims to have rendered to the l'L9th defendants cannot be quantified in monetary terms. He prayed that this Honorable Court declares that the transactions between the plaintiff and I't-9th defendants as illegal and void and such, the l.t-9th defendants could not convey any interest on the land. He further prayed that the plaintifT suit be dismissed with costs as against the defendant with costs. \

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ln Cross-examination he confirmed that he joined Buganda Land Board in october 2009 as a chief Surveyor and is conversant with the suit land which is owned by the Kabaka of Buganda in his official capacity since 1900 and title was obtained on29llll923 as per DEl, the title. That the Kabaka can pass on interest in form of leases only and not interest in perpetuity. That the Kabaka can also recognize unregistered interest through Buganda Land Board by giving consents for transactions of Bibanja interests and acquisition of certificates of occupancy through the Board. That the suit land is located at Jinja Mauno and preserve of Kingdom/given to Abalangira (Royal clan) for cultural activities in respect of the royals to the King. That the suit property belongs to "OMUTUBA GWA KAWESA" to perform cultural activities towards the Kabaka and to a person holding the office. That the suit land is occupied by both the Royals and other ordinary Ugandans who have trespassed since it was vacant in 2009. That the reigning head of the royals is sabalangira Kikulwe and that he is not aware of any consent to land sale transactions. That the Royal head has no such roles on behalf of the Kabaka. That he is aware of illegal dealing in the suit land by the Royal clan. That a non-Royal cannot perform functions or resolve issues ofthe Royals and that the leadership issues which could only be streamlined by the Royals and the King.

In re-examination, he clarified that Royals do not have powers to deal with the suit land other than perform cultural functions and not even the

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Katikiro can deal with the land without consent. That the Ssabalangira cannot represent the Kabaka in any land transaction and that it is presence of Kabaka's Attorneys on land matters and Buganda Land Board who are authorized as agents.

## RESOLUTION

## l. Whether the plaintiff lawfully acquired the suit land/kibanja

The plaintiff s counsel in his submission stated the suit land /kibanja formed part of Omutuba gwakawesa son of the former kabaka. That the suit land belongs to the 1'I to the 9th defendants who by PE I gave it to the plaintiff as a payment for aligning and restoring the defendant's lineage. That the same claim was admitted by the 1't to the 9th defendants. The 1Oth defendant counsel did not agree with the plaintiff arguing that the suit land could not be dealt with by the I \$ to 9il' defendants as it belonged to the Kabaka of Buganda. That any Kibanja dealings cannot be done without the consent of the Kabaka.

To begin with, it is an agreed fact that that the legal interest in the suit land belongs to the kabaka of Buganda by virtue of his office. This is evidenced by the DEl, a Title over the suit land. Both the PWl and DWI confirmed that the Kabaka of Buganda is the registered proprietor of the suit land.

Further it is clear that the plaintiff is a non - royal and therefore cannot officially perform functions or resolve issues of the Royals the plaintiff

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wants this court to believe on the basis of PE l, the MOU between the 1't to 9th defendants and the plaintiff. This definitely puts the MOU, PEI in question. Much as it was admitted by the plaintiff in cross examination that the kabaka holds the suit land in trust for the 1't to the 9th defendants, there is no evidence that they hold any better interest to the suit land than user rights as opposed to private ownership. To the contrary DW1 confirmed to this court that the suit land was given to the royals of Omutuba Gwa Kaweesa to perform cultural functions. This explains the plaintiff s evidence that the head of Buganda Royal clan is currently one Musanje Kikulwe Godfrey and he was the head when the M. O. U (PEl) was signed but did not sign on the MOU (PEl). Further DWl confirmed that Royals do not have powers to deal with the suit land other than perform cultural functions not even the Katikiro can deal with the land and the Sabalangira cannot represent the Kabaka in any land transaction. This indeed confirms that the royals only have user rights on the suit land for cultural functions. Therefore, it is my considered view that the Royals, (lst-lth defendants) had no powers to execute PEI which dealt witlt the Suitland without the Kabaka's consent.

Besides, even if the plaintiff had proved ownership of a kibanja interest, the position would not be different as the law is quite ear on how to handle transactions on bibanja interests.

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It is a cardinal requirement under section 34(9) of the land act, that no transaction to which such a section applies shall be valid and effective in passing interest in land if undertaken without consent of the land lord-

Further section 35 Of the land act provides that a tenant by occupancy who r.l,ishes to assig or sell interest must give the first option to the owner ofthe land short of which would invalidate the sale transactions. The same would be true for gifts.

This was emphasized in the case of Byatike v Kikonyogo (Civil Appeal No.3 of 2014) as cited by counsel for the l0th defendant where court stated that The principle of Law settled among others is that in selling/purchasing of a Kibanja on o titled land, the consent of the Landlord is mandatory. Therefore, the answer to the first issue that was before the trial Magistrate is that the Plaintiff/Applicant did not acquire a Title to the Kibanja he paidfor because he did not have the Landlord's consent. He did not acquire protectable interests on the land.

In this case it is not in dispute that as per DEI the kabaka of Buganda is the registered proprietor of the suit land and as such a landlord of the same.

It is also not in dispute that PEI, the MOU between the parties purportedly passed on a kibanja interest to the plaintiff withou involving the Kabaka of Buganda as the land lord.

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I therefore find that for lack of the consent from the Kabaka of Buganda as the landlord of the suit land, PEI is an illegal document that could not pass any interest to the plaintiff and as such does not afford him any protection under the law. [n effect the transaction and the understanding as contained in PEI is illegal and it cannot pass any title to the plaintiff as an owner of the alleged kibanja.

Issue one is resolved in the negative.

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## Issue Two: What remedies are available to the parties.

Having found that the plaintiff acquired no interest in the suit land, he is not entitled to any of the remedies sought.

I therefore find no merit in the plaintiffls case and the same is hereby dismissed with costs. The said costs are only for the 1Oth defendant who successfully defended the case.

Isoor TADEO ASI JUDGE \

25t06/2024.

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