Kafeero Ssentongo v Kizito and Another (Civil Suit 27 of 2016) [2022] UGHCLD 283 (16 December 2022)

# THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

### CIVIL SUIT NO.27 OF 2016

(ARISING FROM NAKAWA HIGH COURT CIVIL SUIT NO.282 OF 2002)

5 JOHN KAFEERO SSENTONGO..……………………………..……. PLAINTIFF

VERSUS

1. VINCENT KIZITO 2. MAWAZI NSUBUGA ………………..……………………. DEFENDANTS

# 10 BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO. ANTHONY OJOK JUDGMENT

#### Brief facts:

The plaintiff brought the instant suit against the defendants jointly and severally to secure a permanent injunction to restrain them, their agents and 15 workmen from interfering, intimidating, encroaching or in any other way interrupting the plaintiff's use and enjoyment of the suit land, general damages for trespass and an eviction order against the 2nd defendant.

It is the plaintiff's case that sometime in 1997, he acquired a lease comprised in LRV Folio 9, Plot No. 192 Mawokota Block 266 from Nsubuga Emmanuel 20 who was the Mailo land owner and was assisted by his own son Vincent Kizito to carry out the transaction.

That the suit land did not have any developments. The lease was for a period of 20 years effective 25/01/2000. The plaintiff commenced construction of a fuel service station thereon operated by Petro City (U) Ltd. All payments were

25 made, a lease agreement executed, land surveyed and lease registered into the name of the plaintiff. The plaintiff also later acquired a mailo interest in land comprised in Mawokota Block 266 Plot 192 hence the lease and the reversion merged.

On the 26th October 2002, the plaintiff was disturbed when the 1st defendant 30 appeared on his premises and purported to subdivide it, giving a portion of it to the 2nd defendant claiming that he had sold a piece of the suit land to the 2nd defendant.

That the 2nd defendant has since constructed and removed one mark stone from the plaintiff's land. Effort to stop the encroachment has been futile.

The defendants on the other hand denied the contents of the plaint and the 1st defendant contended thatthe plaintiff only acquired a lease measuring 80ft by 5 90ft.

That the 2nd defendant's acquisition measuring 20ft by 90ft from Emmanuel Nsubuga does not form part and parcel of the land belonging to the plaintiff.

That he is the owner of the land formerly comprised in Mawokota block 266 plot 35 measuring 90ft by 20ft.

10 Thus, the plaintiff illegally and fraudulently caused the land comprised in Mawokota block 266 plot 192 to be registered in his names by amalgamating his portion with that of the 2nd defendant.

The plaintiff adduced evidence of one witness that is himself while the defendants also did not call any other witnesses save from themselves.

# 15 Representation:

The plaintiff was represented by Mr. Gilbert Nuwagaba of M/s KGN Advocates, while the defendants were represented by Mr. Mayanja Twaha of M/s Mayanja Nakibuule & Co. Advocates. Both counsel filed written submissions.

#### 20 Issues for determination:

- 1. Whether the 2nd defendant is in trespass on the plaintiff's land comprised in mawookota block 266 plot 192? - 2. What are the remedies available to the parties?

#### Submissions:

# Issue 1: Whether the 2nd 25 defendant is in trespass on the plaintiff's land comprised in mawookota block 266 plot 192?

Counsel for the plaintiff quoted Halsbury's laws of England on the definition of trespass as a wrong act done in disturbance of possession of property of another, against his will and the case of Justine Lutaaya v. Stirling Civil 30 Engineering Co. Ltd, C. A No.11of 2002, where it was held that;

> "Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the

tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of <sup>t</sup> <sup>h</sup> e land has capacity to sue in trespass. Thus, the owner of an 5 unencumbered land has such capacity to sue, but a landowner who grants a lease of his land, does not have the capacity to sue, because he parts with possession of the land. During the subsistence of the lease, it is the lessee in possession, who has the capacity to sue in respect of trespass to that land. An exception is that where the trespass results in 10 damage to the reversionary interest, the landowner would have the capacity to sue in respect of that damage. Where trespass is continuous, the person with the right to sue may, subject to the law on limitation of actions, exercise the right immediately after the trespass commences, or any time during its continuance or after it has ended. 15 Similarly subject to the law on limitation of actions, a person who acquires a cause of action in respect of trespass to land may prosecute that cause of action after parting with possession of the land.

Counsel for the plaintiff submitted that the plaintiff in his witness statement stated that sometime in 2000, he was informed that the late Emmanuel

20 Nsubuga of kayabwe was leasing off part of his land comprised in mawokota block 266 plot no. 35. That he approached the said Emmanuel Nsubuga who agreed to lease part of the land initially 80ft in width and the length to be measured later. That on the 25th day of January 2000, they signed a lease agreement forthe said land off mawokota block 266 plot 35.

25 That his intention in acquiring the lease was for purposes of constructing a fuel service station thereon. That he noticed while giving him the dimensions for the width, there was a small portion of land measuring approximately 20ft which would cause problems with whoever acquired it and would pose a danger to his fuel business. That he then approached the late Emmanuel 30 Nsubuga to also lease the said 20ft and the late Nsubuga asked him to go and

see his lawyers then the late Sendegeya to draw up the lease for the whole of the portion of 100ft.

That the late Sendegeya advised the plaintiff to get a surveyor and survey off his portion and that it is final survey dimensions that would be reflected on 35 the mailo title to be mutated off plot 35 from which the lease would be granted. That following his advice the plaintiff got a field surveyor, Mr. Lukwago who carried out a survey in his presence and that of the 1st defendant.

The measurements made were approximately 0.081 acres and the mutated title was known as mawokota block 266, plot 192 land at kayabwe. That it is from this title that he obtained a lease of 0.081 acres which was registered in his name on the 6th September 2000 under LRV 2835 Folio 9 plot 192 block 266 mawokota for 20years with effect from 1st 5 February 2000.

The plaintiff further started that while the plaintiff was in the process of constructing his fuel station in 2002 he noticed the 2nd defendant constructing structures on his land. That he instructed his lawyers M/s Mwesigwa-Rukutana & co. Advocates to write to the 1st defendant informing him of the 10 encroachment.

That subsequently, after the death of the late Emmanuel Nsubuga, the widow, Mrs. Kevina Nakibowa, Administrator of the estate of the late Emmanuel Nsubuga sold to him the reversionary interest and as such the lease merged with the reversion leading to the lease title being submitted to the land registry 15 for cancellation. That he has occupied the suit land unchallenged ever since.

Counsel added that upon the 2nd defendant entering onto the plaintiff's land, he started constructing a grass thatched hut for purposes of selling eats and alcoholic drinks thereon. That the plaintiff in fear of the same catching fire and endangering his station as well as the entire Kayabwe town, had the roof 20 removed and it is upon this that he was arrested and charged at buwama court for malicious damage to property.

That upon recovering the certificate of the title the plaintiff, just handed over the same to the deceased but little did he know that the size transferred by the plaintiff was more than what had been agreed upon in the lease agreement 25 until the matter was brought in court.

Furthermore, that in about 2001, the deceased decided to sell the remaining portion of his land measuring approximately 20ft by 90ft to the 2nd defendant at a sum of UGX 1, 500,000/= vide a sale agreement dated 11th July 2001. That prior to the said transaction, the deceased together with his mother

Nakimbowa Kevina (widow to the deceased), the 1st 30 defendant and the LC1 chairperson the late Kasirye Deo inspected the said land with the 2nd defendant and clearly ascertained the boundaries.

That the said kibanja measures approximately 20ft by 90ft and it stretches from the deceased's boundary, in width it stretches to the tarmac road, on the 35 right it borders with the plaintiff and a one Mutange Godfrey.

Counsel for the plaintiff contended that the agreement between the late Emmanuel Nsubuga and the 2nd defendant dated 11th of July 2001 for land measuring approximately 20ft by 90ft land comprised in mawokota block 266 Plot No.35 was no longer in existence as it had been subdivided giving rise to Plot No. 192 and the residue of Plot 193. That this means that the land was in possession of the plaintiff as lessee and the late Emmanuel Nsubuga as well as

the 1st 5 defendant had no authority or power to deal with the land which was in the plaintiff's possession as the registered proprietor of the leasehold described as leasehold register volume 2835 folio 9 plot no. 192 block 266 Mawokota at Kayabwe for 20 years.

That the late Emmanuel was an owner of the reversion. Likewise a landowner 10 who grants a lease cannot purport to sell or in any way deal with the land already leased out as per the provisions of Section 46 of the Registration of Titles Act, which provides that,

"The person named in any certificate of title or inst rumen t s <sup>o</sup> registered as the proprietor of or having any estate or interest in or 15 power to appoint or dispose of the land described in the certificate or instrument shall be deemed and taken t o be duly regist ered as a proprietor of the land."

Section 59 of the Registration of Titles Act, also provides that a certificate of title is conclusive evidence of ownership.

- It was further argued for the plaintiff that 1st 20 defendant seemed to imply that the plaintiff only acquired land measuring 80ft by 90ft and that the plaintiff wrongfully extended his portion 100ft by 90ft. That the late Emmanuel Nsubuga ought to have first impeached the plaintiff's certificate of title for having been issued in error or by fraud which he never did. - Counsel concluded that the 2nd 25 defendant therefore, entered on the land and constructed thereon without the consent and or authority of the plaintiff who was the registered proprietor. Thus, the 2nd defendant is a trespasser on the plaintiff's land comprised in Mawokota Block 266 Plot 192 at Kayabwe. - It was submitted for the defendants on the other hand that the 2nd defendant 30 stated that he bought the suit kibanja in 2001 from the late Emmanuel Nsubuga measuring about 20ft x 90ft. During this transaction, the late Emmanuel Nsubuga called the 1st defendant, introduced him as his son and directed him to draft a sale agreement between himself and the deceased. That accordingly, the 1st defendant drafted a sale agreement with the terms agreed - 35 upon with the deceased such as the purchase price, size of the kibanja which was the subject of the sale agreement and the surrounding neighborhood which were all included in the sale agreement.

It was further submitted that prior to the execution of the sale agreement, he inspected the said kibanja with the assistance of the deceased, in the company of the 1st defendant and the widow to the late Emmanuel Nsubuga and immediately after execution of the sale agreement, he took vacant possession

5 of the kibanja and started utilizing the land by among others constructing thereon a commercial building with two rooms, another grass thatched h ouse and a pit latrine.

That by the time the 2nd defendant purchased the said kibanja, the plaintiff was in occupation of his part which he had hitherto bought from the deceased

10 and he was one of his neighbors, he saw him developing the said kibanja but he never stopped him nor did he complain at all.

Counsel for the defendants further submitted that in 2007, the plaintiff in the company of some men destroyed the 2nd defendant's grass thatched house and deroofed it. That he instituted a criminal case vide Criminal case 15 MPI/03/TO/0224/2007 and court convicted him of malicious damage to property and directed him to compensate the 2nd defendant for the loss which the plaintiff has ignored to date.

Counsel argued that this means that the defendant enjoyed quiet possession of the said kibanja without disturbance until 2002 after the demise of the

20 deceased when the plaintiff falsely claimed to have purchased this portion. That the 2nd defendant has never trespassed onto the plaintiff's land and has always been in possession of the suit land. On the contrary it is the plaintiff that illegally amalgamated the 2nd defendant's portion of land with his to create the certificate of title.

# 25 Issue two: what are the remedies available to the parties?

The plaintiff prayed for an order of a permanent injunction restraining the defendants, their agents, servants and / or from threatening, encroaching or in any way interrupting the plaintiff's use and enjoyment of the suit land, general damages for trespass, an order for demolition of the structures constructed by the 2nd 30 defendant, costs of the suit and interest on the decretal amount from the date of judgment till payment in full.

In regard to general damages counsel for the plaintiff relied on the case of Dennis Desire Mitti v. Patrick Ssewagudde Musoke and Others, High Court Civil Suit No.449 of 2016 which cited with approval the case of Takya 35 Kushwahiri and another versus Kajonyu Denis C. A. C. A No. 85 of 2011 in

which it was held that; general damages should be compensatory in nature in that they should restore some satisfaction as far as money can do it to the injured plaintiff.

In the case of Uganda Commercial Bank v. Kigozi (2002)1 EA 35 court gave guidance on how to assess the quantum of damages by stating as follows;

5 "The consideration should mainly be the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered".

The plaintiff in the circumstances of this case prayed that court be pleased to award a sum of UGX.150, 000, 000/=as general damages.

10 The plaintiff also prayed for an order of a permanent injunctionwhich would ensure that the plaintiff has vacant possession of the property.

Counsel for the plaintiff concluded that this honorable court has the discretion to grant interest on any award by the court under Section 26 of the Civil Procedure Act. And that costsfollow the event as per the provisions of S ection

15 27 of the Civil Procedure Act. Counsel prayed for an award of costs of the suit as well as interest at court rate on the general damages as well as the costs since it is a case of 2002.

Counsel for the 2nd defendant on the other hand submitted that the plaintiff's acts of disturbing the 2nd defendant for over 20 years and deliberately refusing

20 to settle the issue with the latter have caused great loss, injustice, inconvenience to the 2nd defendant which but for the plaintiff's character would have been avoided. That in the circumstances, the 2nd defendant is entitled to general damages.

Counsel added that the object of an award of general damages is to give the 2nd 25 defendant compensation for the damage, loss or injury he has suffered. (See: Robert Coussens v. Attorney General, S. C. C. A No.8 of 1999 at P.5). Counsel prayed that the 2nd defendant be compensated for the loss he suffered as a result of the plaintiff's actions. Thus, in favour of the 1st and 2nd defendants this court orders the plaintiff to cause the sub division of the 2nd defendant's land in his favour and costs of the suit be awarded to the 2nd 30

defendant.

# Counter claim:

It was submitted for the 2nd defendant that he is the lawful owner of the part of land formerly comprised in Mawokota Block 266 Plot 35 measuring 35 approximately 20ft by 90ft having purchased the same from Nsubuga

**7 |** P a g e

Emmanuel by a sale agreement dated 11th July, 2001. And that prior to the defendant's acquisition of the aforesaid land, the plaintiff purchased a lease comprised in part of land comprised in Mawokota Block 266 Plot 35 measuring approximately 80ft by 90ft from the late Nsubuga Emmanuel and

5 in 2004 converted the lease into mailo as indicated in the sale agreement between himself and Kevina Nakibowa.

The 2nd defendant pleaded that the plaintiff illegally, fraudulently and without any colour of right whatsoever caused the land comprised in Mawokota Block 66 Plot 192 to be registered in his name including the portion of 20ft x 90ft owned by the 2nd 10 defendant without his consent.

The 2nd defendant prayed for the following orders;

- a. A declaration that part of the suit land measuring approximately 20ft x 90ft which the counter claimant acquired by virtue of the sale agreement dated 11th July 2001 belongs to the 2nd defendant/counter 15 claimant. - b. An order directing the plaintiff to cause the subdivision of the counter claimant's land herein above in favour of the counter-claimant. - c. A permanent injunction restraining the plaintiff and or agents, nominees, representatives and or any one claiming title under or from - 20 him from trespassing, threatening, intimidating, interfering or in any way dealing with the counter claimant's land, general damages and costs of the counterclaim.

Counsel for the plaintiff on the other hand contended that the counterclaim is premised on the assumption/ claim that the purchase of 20ft by 90ft by the 2nd defendant was lawful whereas not. That besides, the 2nd 25 defendant's counterclaim has no locus of claiming that the plaintiff, illegally fraudulently without a color of right caused the land comprised in mawokota block 266 plot 192 to be registered in his names whilst he has never been a registered proprietor or claimant of the same. That as per the evidence adduced, the 30 mailo land title was lawfully transferred to the plaintiff by Kevina Nakibowa.

Thus, the counterclaim should be dismissed with costs.

#### Analysis of court:

#### Law applicable:

Sections 101 of the Evidence Act provides that;

- 35 "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist."

## Section 103 of the same Act provides as follows;

"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 the proof of that fact shall lie on any particular person."

5 The burden in this case therefore, lies on the plaintiff to prove his case as against the defendants on a balance of probabilities.

### Issue one:

The plaintiff in this case claims to have acquired a lease on the suit land measuring approximately 80ft by 90ft from the late Emmanuel Nsubuga and 10 prior to the registration of the lease, got into a mutual agreement with the late and he was added the remaining small portion of 20ft summing up to 100ft which he surveyed and merged together. The first transaction of the plaintiff is supported by a sale agreement dated 25th January 2000 and the second land acquisition was allegedly mutual however, there is no documentary proof of 15 the same adduced by the plaintiff to this court. This court therefore, cannot

ascertain what the terms of the alleged mutual agreement were.

The 2nd defendant on the other hand claimed to be the lawful owner of the part of land formerly comprised in Mawokota Block 266 Plot 35 measuring approximately 20ft by 90ft having purchased it from Nsubuga Emmanuel. And a sale agreement dated 11th 20 July, 2001was executed to that effect.

It is my considered view that prior to the defendant's acquisition of the aforesaid land, the plaintiff obtained a lease in part of land comprised in Mawokota Block 266 Plot 35 measuring approximately 80ft by 90ft from the late Nsubuga Emmanuel in 2000. In 2004 converted the lease into mailo after

- 25 a purchase as indicated in the sale agreement between himself and Kevina Nakibowa. The defendant bought his portion of land in 2001 that was before the purchase made by the plaintiff in 2004 and these were distinct pieces of land. The plaintiff also claimed that he was given an additional piece of land by the deceased however, this was not supported by any documentary proof. - 30 The plaintiff is his evidence admitted that upon purchase of the mailo interest when he was doing the merging of his two interests under one title he included more than what was leased to him. This is a clear indication that the plaintiff illegally added the 2nd defendant's land to his title.

During the locus visit the plaintiff was unable to support his claim in regard to the suit land with any documentary proof and the 2nd 35 defendant was found in occupation and usage of the same and had a sale agreement to support his acquisition. The plaintiff merely told court that he sat and agreed with the late

Nsubuga Emmanuel that he is added the suit land being a small portion onto the lease he had earlier obtained. I am however, not inclined to believe this piece of evidence, since it is not corroborated by any documentary proof or additional oral evidence. Land is not like buying tomatoes one is expected to 5 be vigilant and go an extra mile to secure their interest.

On the other the 2nd defendant started construction on the suit land when the late Nsubuga was alive and was not challenged and he also produced a sale agreement to prove his purchase of the same. For one to be said to be a trespasser they should have entered on to the property of another without 10 their consent as was rightly cited by both counsel. The widow to Nsubuga only

sold reversionary interest in the lease hold to the plaintiff and nothing more.

In the instant case I find that the 2nd defendant has a sale agreement to support his purchase of the suit land from Nsubuga Emmanuel and he has been in occupation of the same from the time he bought it. The plaintiff on the other

15 hand was unable to discharge the burden of proof in support of his claim in regard to his acquisition of the suit land and how the 2nd defendant was a trespasser thereon.

I therefore, find no acts of trespass were committed on the part of the 2nd defendant in this case.

20 The first issue is therefore answered in the negative.

### Issue two:

The plaintiff in the instant case failed to prove his interest in the suit land to the satisfaction of this court on a balance of probabilities. He is hereby not entitled to any remedies prayed for.

25 I accordingly find no merit in this suit and it is hereby dismissed with costs payable to the defendants.

### Counter claim:

The 2nd defendant in this case proved his interest in the suit land and this was backed up by a sale agreement dated11th July, 2001. And he told court that he 30 had been on the suit land unchallenged until 2007 when the plaintiff destroyed his grass thatched house. Whereof he instituted a criminal case against the plaintiff on charges of malicious damage to property and he was convicted thereof and ordered to compensate the 2nd defendant.

The 2nd defendant prayed for general damages, for the acts of the defendant that resulted to loss. The 2nd 35 defendant however did not guide this court on the

quantum of general damages this court should award much as this is done at the discretion of court. During locus it was also observed that the 2nd defendant had been utilizing the suit land for commercial purposes, meaning there is no loss he has suffered. I am not convinced to award any general damages since I find no justification fronted by the 2nd 5 defendant for court to do so. I therefore, make no award as to costs.

I hereby allow the counter claim in favour of the 2nd defendant with the following orders;

- a. A declaration that part of the suit land measuring approximately 20ft x 10 90ft which the counter claimant acquired by virtue of the sale agreement dated 11th July 2001 belongs to the 2nd defendant/counter claimant. - b. An order directing the plaintiff to cause the subdivision of the counter claimant's land measuring 20ft by 90ft herein above in favour of the 15 counter-claimant. - c. A permanent injunction restraining the plaintiff and or agents, nominees, representatives and or any one claiming title under or from him from trespassing, threatening, intimidating, interfering or in any way dealing with the counter claimant's land. - 20 d. Costs of the counterclaim.

.………………………….

### OYUKO ANTHONY OJOK

JUDGE

25 16/12/2022