Gwendoline Kainembabazi and 4 Others v Namusisi and Another (Civil Suit No. 843 of 2021) [2022] UGHCLD 61 (5 May 2022)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# **LAND DIVISION**

## CIVIL SUIT NO. 843 OF 2021

#### 1. SUZANNE MABEL GWENDOLINE KAINEMBABAZI KAZZORA MUSHERURE $\overline{5}$

# 2. VANESSA MARION GRACE BAHIRANA KAZZORA

3. MARK ALEXANDER KAMPURA KAKONDO KAZZORA

4. MAX PETER KOMUHANGI STOLL KAZZORA

5. MATHEW RICHARD RUBAHAMA KAZZORA ::::::::::::::::::::::::::::::::::::

# $10$

#### **VERSUS**

- 1. SARAH NAMUSISI - 2. JANE NANYONDO :::::::::::::::::::::::::::::::::::

### Before: Lady Justice Alexandra Nkonge Rugadya

# 15

## **JUDGMENT** (EXPARTE)

#### Introduction:

The plaintiffs filed this case against the defendants seeking orders that the defendants were trespassers on property comprised in Kyaddondo Block 253, plot 82, land at Lukuli, measuring 2 acres; a declaration that the suit property belongs to the estate of the late John 20 Wycliffe Rutagyemwa Kazzora; an order for vacant possession of the suit property against the defendants; a permanent injunction restraining the defendants and their agents from dealing with the suit property in any way; aggravated damages; mesne profits; and costs of this suit.

# Background to the case:

It is the plaintiffs' claim that the late John Wycliffe Rutagyemwa Kazzora purchased land 25 comprised in **Plot 82 Block 253 Lukuli Kyadondo** measuring approximately two acres and became its registered owner on 21st May, 1963. The transfer instrument number was KLA37964.

John

That upon purchase of the land, the land was free of any encumbrances and had no squatters' However that sometime during the 1971 war, the late John wycliffe Rutagremwa had to flee to exile. upon his return from exile in 1986, he found the late Mr. Nyamumiza occupying his land

5 as a squatter.

> He approached him and he admitted that he was a squatter and requested for time to leave the land, but unfortunately passed on before he could shift his family, which included the defendants.

As he continued to pursue the process of removal of the defendants, the 1"i plaintiff got married alld the suit property was given to her as wedding gift by her father, the late John wycliffe Ruta\$/emwa. 10

Through the late John Wycliffe Rutagrer.r,wa Kazzora lawyers, notification to the defendalts as illegal occupants ofthe land was made. He however passed on before the defendants vacated the suit land.

15 Ka",?nra was survived by the plaintiffs who obtained letters of adrninistration and who continued to notify the defendants of their continued trespass on the land. Thc plaintiffs who contend that the late John Wycliffe Rutaryemwa Kazzora lawfully purchased thc propcrty and registered proprietor in his names hled this suit therefore to amonB other things, obtain vacant possession thereof.

# 20 Representqtlon:

Thc plaintiffs were rcpresented by the firm of M/s Kfbllko. Musoke & Tend.o Advocqtes and Lcgdl Consultants.

25 As per order of this court granted on l"t December, 2021, utde: MA No. 7840 ol 2021, l}re plaintiffs served the defendants by way of substitutcd service. (Ref: The affidavit of service dated respectively Vh December, 2O21 qnd 3Oth March 2022). 'fllle defendants however did not enter appearance.

#### Issues.'

1. Whether the d.eJend.ants are tresPqssers on the sult l(tnd; and

# 2. What qre the remedies quqllq,ble 30 to the Partles?

2 ]"u

# **Resolution of issues:**

# 1. Issue No. 1: Whether the defendants are trespassers on the suit land;

#### The law:

By virtue of section 101 (1) of Evidence Act, Cap. 6, whoever desires court to give judgment $\mathsf{S}$ to any legal right or liability depending on the existence of any facts he/she asserts must prove that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 at page $78)$ .

The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which

10 the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

Trespass to land is defined in **Black's law dictionary 9th Edition**, as an unlawful act committed against the property of another. Furthermore as stated elaborately in Justine E. M. N. Lutaaya Vs Sterling Civil Engineering Ltd Supreme Court Civil Suit No. 11 of 2002, trespass to land occurs when a person makes unauthorized entry upon land and thereby interferes or pretends to interfere with another person's lawful possession of that land.

Needless to say, a tort of trespass to land is committed, not against the land, but against the person who is in actual possession of the land. Such possession may be physical or constructive. (See EMN Lutaya Vrs Sterling Civil Engineering Company Ltd SCCA NO. 11/2002).

20 Furthermore, in Oala Lalobo versus Okema Jakeo Akech C. S No.20 of 2004 the court also ruled that trespass to land is a continuous tort which cannot be affected by the **Limitation Act** or the Land Act.

(See: Justine E. M Lutaaya vs Stirling Civil Engineering Company Ltd. Civil Appeal No. 11 of 2002).

25 Thus the operative word in the tort of trespass to land is "unlawful"; which simply denotes that which is contrary to the law and for which the trespasser is ultimately liable. (See:Kailash Mine Limited versus B4S Highstone Ltd Civil Suit No. 139 of 2012).

In George Kasedde Mukasa v. Emmanuel Wabende & Others, Civil Suit No. 459/1998 trespass to land was held to be committed where a person wrongfully and unlawfully sets foot upon or takes possession or takes material from the land belonging to another.

$3$ Abboth

Needlcss to say, the tort of trcspass to land committcd not against thc land, but against the person who is in actual or constructivc posscssion of thc land. .f,rccs lro. 22 ol zols abo,btrl Muhamood. & Four Ors uersts illuko',!-ba Ano,'1.sto,nsla & Tatta Wllfred

It is the plaintiffs' unchallenged evidence that the late John wycliffe Rutagremwa Iawfully purchased land and was registered on the 2 1"i day of May, 1963 upon which he took immediate possession of the suit land.

The 1{ plaintiff Ms Suzanne Mabel Kainembabazi Ka":zora Musherure testified as pul, atd, adduced evidence to prove that the plaintiffs'Iate father was currently the registered owner of the land comprised tn plot 82, Block No. 253 Mengo l[strlct.

- The land had been registered in his names on 21"1 May, 1963. The search certilicate dated l4rh April, 2022 was confirmation that the suit land was still under the names of the deceased. Three caveats had been lodged by the administrators on l2rh August, 2005, under Instrument jyo. KLA 278504. A second caveat was lodged on 21"rJunc, 2OO7 by thc 3.d plaintiff and on 23rd July, 2012, and the third caveat was lodgcd by the 2',' plaintiff. 10 - PErh 5 was lrobate and Administration cause No. 826 of 1999 by which the plaintiffs had obtained Probate to administer the estate. It was issucd on 186 Januan/, 2ooo. As per, paxh 2[a/ the plaintiffs granted unrestricted powers of attorney to the l"r plaintifi By the said instrument dated 3'd February, 2000 they had permitted her to deal with all aspects surrounding the estate of the late Kazzora. 15 - It was the testimony of the 1"1 plaintiff that her father owned the land later given to her by her father as a wedding grft. That at the time of purchasing and registration of the land into his names there wcre no squatters or othcr encumbrances. 20

# &es.pluipt\_r -{the egtd;

I have taken careful note of the contents of the pleadings, the evidence and the arguments raised in submission by counsel for the plaintiffs. Thc points raised in therein have not been challenged. 25

sectlon 59 of the Reglstratton o.f rl/tles Act, cdp 2go, states that a certificate of title is conclusive cvidence of all particulars and endorsement appearing therein, ard that the person named therein as the proprietor is possesscd of the estatc or intcrcst described. It is conclusive

proof of ownership. (I(o,mpola Bottlers Ltd Vs Ditr.qnlco (U) Ltd, SCCA No. 22 of 1992). 30

counsel for the plaintiffs rcferrcd to thc authority in wuta - ofel vs rtg.nqi4o,h (196l)s ALJER 596, that in the absence of any other person having lawful possession, a person holding a

4 o\*r)

certificate of title to land has sufficient legal possession of that land to support an action of trespass on land. The interest of a registered proprietor thereforc prevails over any other unregistered interest or claim over the Iand, except where fraud is established.

On record are the several noticcs that had been issued by thc plaintiffs and their father before his death, notifying the defendants regarding their unauthorized posscssion of that land. Such notification dated as far back as 6th l)ecembcr, 1993 for according to Pur2 Kajwenrye Nathan Musime, his personal Assistant at that time, K:az.ora died in November, 1999. 5

In support of her witness statcment PurI adduccd cvidence of a title acquired by the late John Wycliffe Rutaryemwa for the land comprised in Block 253, plot 82, Kgo.doado and registered under his name.

It is further stated that at the time of purchasc there were no incumbrances and no squatters on the land. But that during the 1971 war the late Kaa,zora went in exile and on his return 1986 he found a trespasser called the late Mr. Nyamumiza whom he immediately approached and he agreed to leave the land.

Through his lawyers he notified the late and his family and hc promised to vacate but he passed on before he could conclude removal of his family. The land was given by the deceased to the 1.t plaintiff and this was confirmcd by Kajwenge Nathan Musime who testified as Pur2. 15

Pru2 who worked closely with the late John Whycliffe Rutaryemwa informed court that before Kazmra's demise, the defendants were served with scveral notices to vacate the premises but they have continued to illegally occupy the premises.

The l\* plaintiff furthcr confirmed in her testimony that she together with the city authority demolished illegal structure and sent more notices confirming the continued trespass on the land.

The law is that once a person is registered as proprietor of an estate or interest in land, his/her/its title cannot be impeached except as prescribed under this provision of the Act. Irespass to land will occur when a person makes an unauthorized cntry upon land and thereby interferes or portcnds to interferc with another person's lawful possession of that land. 25

Pu2 further told court that he himself had personally met the defendants but they were adamant and refused to leave the land. That in 2006 thcy werc stopped by the KCC from constructing on the land but that in 2008 they rcsumed, and the structures wcre demolished.

It was also the plaintiffs' evidcncc that on 5'h August, 1996 the dcccased's lawyers lls Sam Kuteesa & Co. Advocates had written to thc 2nd defendant referring to an earlier letter dated

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6th December, 1996 under which they had been requested to vacate the suit land, which they had refused to do, prompting the plaintiffs father through his counsel, to report the matter to Police.

By their correspondence, PExh 3lo the 2"d defendant dated sth August, 1996 notice was given to her to vacate the land and demolish the illegal structures by 3i\* August, 1996, and a notice of intention to sue was also given to the defendants.

PExh 6 p) is proof that the defendants had been summoned by Kampala City Council (KCC) on 151h August, 2O06, about the illega.l four roomed struclurc. PExh 4, is a letter dated 251h September, 2006 from KCC, to thc arca M. P entitled; Nanyondo .lane and Sarah lVcmusisi. It shows that unauthorized structurcs had bcen put up, in contravention of thc building rules and regulations. (Sce also PExh 6(a),lctter dated 14th September, 2006 from KCC).

The l plaintiff filed a complaint on 12s September, 2006 to KCC ald sought their help to remove an illegal structure. This was sufficient conhrmation that the construction works commenced by the defendants and their agents lacked the approved plans artd that no consent had been secured

from the plaintiffs to put up any structure on the suit land. The order to demolish the structure was thereupon made by KCC on 181h September, 2006. 15

The defendants did not respond to any of the summons by court to counter thc allegations against them. In effect there was admission on their part that they lacked interest in the suit land and in the final outcome of this case.

It was also constructive admission that there was unauthorized entry on the land, leading to interfering with the lawful possession of the suit lald by the plaintiffs; and that no fraud had been committed by the dcccased in acquiring this land or his successors in title. 20

# lUhqt iqhts then did the defendants hold on the suil land?

Sectlon 29(5) ol the Land Act, Cqp. 227 provi.d.es that any person who has acquired the interest of the pcrson qualified lo bc a bona fide occupant undcr that section is laken to be a bonafide occupant. n tenant by occupancy on registered land cnjoys sccurity of occupancy by virtue of sectlon 37 of the La.nd. Act. 25

Sectton 29 (2) thereof defines a bonafrde occt)pant as a person who before the coming into force of the Constitution had occupied and utilized or dcvclopcd the land unchallenged by the registered owner or agcnt of the registered owner for twelve ycars or more.

6 I t"t" 14

From the plaintiffs' unchallenged evidence, the defendants who did not take any steps to challenge any of the above actions taken by the plaintiffs'to displace them, appeared to claim from one Nyamumiz,a, since deceased, who occupied the land as a squatter.

5 PulI's testified that her father returned from exile in 1986 and found Nyamumiza on his land. Nyamumiza admitted that he had no authority/ consent to stay on that land; and that he was n a squatter at the time. He then requested Ka"zora for some time to leavc the land, but passed on before he could shift his family.

The element of consent is crucial in relation to land transactions. Thus without consent of the legal owner, the late Nyamumiza could not as a squatter acquire protectable interest under Sectlon 29 (2) ol the Land Act, Cap. 227,

With all due rcspcct thereforc, thc authority by thc late Kazzora lo thc late Nyamumiza to remain on the late for morc time, madc Nyamumiza a mcrc licensee on that land. The issue of license was decided upon in CIUII Appeal No. 52 oJ 2O1O llll/slsl Gabrlel Vs Edeo Ltd & George Raglll Kannol.

Going by its dcfinition, a liccnsce by invitation is a common law principlc and defined by Black Laut Dlctlonary th E.d.ttton at page 7064 a.s: 15

> "One who is expressly or lmplledlg pennltted to enter another's premlse to tra.nsact buslness t/',lth the owner or occr.rpant or to perlorrn an act benefrtlng the owner or occupqnt".

The cardinal principles is that a licensee is simply authoriz€d to do a particular act or series of acts upon the other's land without possessing any estate therein. It is a principle founded on personal confidence, It is gcnerally not assignable or transferrable. No proprietary interest passes to the licensee. It is revocable at u/iU by thc property owncr. 20

Likewise, Nyamumiza in this casc as a licensee could not pass on any valid interest to his family. The family in any case needed to first secure lettcrs of administration for thc estate of Nyamumiza before taking over what was pcrceived by them to bc part of thcir fathcr's estate. 25

Under those circumstances, neither Nyamumiza nor his family could claim this land, as bonaftde occupants so as to warrant any protection as thc cquitable owners thereof.

Accordingly, the defendants were mere trespasscrs on the suit land. The plaintiffs'case against the defendants therefore succeeds, to merit the prayers sought.

7 )oa,.< )

#### Issue No. 2: Remedies:

The plaintiffs prayed for damages, *mesne* profits and costs.

Its trite law that, that damages are direct and probable consequence of the act complained of. This was noted in the case of Kampala District Land Board and George Mitala Vs Venansio Bamweyana CA No. 2 of 2007. Such may be loss of profit, physical inconvenience, mental distress, pain and suffering, (See also Assit (U) Vs Italian Asphault & Haulage & Anor HCCS No. 1291 of

1999 at page 5).

$\mathsf{S}$

It is also a settled position of the law that the award of general damages is in the discretion of court and is always as the law will presume to be the natural consequence of the defendant's act or

omission. The object of an award of damages is to give the plaintiff compensation for the damage, loss 10 or injury he or she has suffered. (See: Fredrick Nsubuga Vs Attorney General S. C. C. A. No. 8 of 1999).

Therefore, in the circumstances of the quantum of damages courts are mainly guided by the value of the subject matter, the economic inconvenience that the party was put through at the instance of the opposite party and the nature and event of the breach.

A party is eligible for damages where loss and inconvenience has been suffered due to the wrongful act of the defendant. He/she must be put in the position he or she would have been in had he or she not suffered the wrong; and must lead evidence or give an indication what damages should be awarded on inquiry as the quantum. (Ongom Vs. AG (1979) HCB 267, cited by court in Kamugira Vs

National Housing & Construction Co. CS. No. 127 of 2009) 20

Thus where the defendant has obtained a benefit at the expense of the plaintiff, justice demands that this should be restored to the plaintiff. This is to secure corrective justice by rectifying an imbalance between the plaintiff and the defendant.

The plaintiffs in this case proved that they failed to enjoy the full benefits and exclusive use of 25 the land on account of the defendants' unauthorized activities over the years; suffered inconvenience and spent time and financial resources trying to claim back the property which according to them is worth *Ugx 200,000,000/=*.

The pleadings however do not show whether or not the defendants were occupying the entire piece and how they were utilizing it, thus leaving much to the discretion of this court.

#### 30 Costs.

The plaintiffs also prayed for an order for costs. Section 27(2) of the Civil Procedure Act, Cap.71 is to the effect that costs are discretional and normally follow the event. (Roko

labor

Construction Co. Ltd Vs. Uganda Co-operative Transport Union. Supreme Court Civil Application No. 32 of 1997).

Accordingly, the following prayers are granted:

a). the defendants are trespassers on the suit land comprised in Plot 82 Block $\,$ 253, Lukuli Kyadondo as it belongs to the estate of the late John Wycliffe Rutagyemwa Kazzora.

b) An order of vacant possession of the suit property issues against the defendants to vacate the land within 3 months from the date of notification of this judgment.

c). an order of permanent injunction issues restraining the defendants, their agents and any other person claiming under them from dealing with the suit property;

d). general damages of Ugx $60,000,000/$ = is awarded to the estate of the late John Wycliffe Kazzora;

e) interest of 20 % is payable per annum against the award of damages, from the date of delivery of this judgment till payment is effected in full.

$\mathsf{S}$

e) costs of the suit.

Alexandra Nkonge Rugadya

**Judge**

5th May, 2022.

Defueed by email Autoly J 5/5/2022