Kahaawa v Ntakimanye and 7 Others (Civil Suit 57 of 2023) [2024] UGHC 1139 (6 December 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CIVIL SUIT (LAND) NO. HCT-16-LD-CS-0057 OF 2023

FRANCIS KAAHWA::::::::::::::::::::::::::::::::::

#### **VERSUS**

NTAKIMANYE DEO & 70 ORS::::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### **IUDGMENT**

- The Plaintiff instituted this suit against the Defendants jointly and $\bigcap$ [1] severally for trespass to land, a declaration that the 1<sup>st</sup> Defendant's actions of instigating and or facilitating the $2^{nd}$ – $71^{st}$ Defendants to enter on the Plaintiff's land is illegal and unlawful, a declaration that the Plaintiff is the rightful owner of the suit land located in Wantebo (formerly Booma Village) in Butiaba Town Council, Buliisa District; an order of vacant possession/eviction against the Defendants, a permanent injunction restraining the Defendants, their assignees and those claiming interest under them from further interference with the Plaintiff's quiet enjoyment of the suit land, general damages and costs of the suit. - It is the Plaintiff's case that the Plaintiff is the lawful owner of the $[2]$ suit land located at Wantebo (formerly Booma Village) in Butiaba Town Council, Buliisa District, measuring approx. 700ha, the land having been allocated to him by the Buliisa District Land Board. The Plaintiff has been in possession of the suit land under the watchful eye of his caretaker. That in or around 2019, without his consent, an unknown person entered on and occupied approx. 200 acres of part of the land and was later followed by the $2^{nd}$ -71<sup>st</sup> Defendants who constructed/erected structures for their occupation, and carrying out their various activities.

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- It is the contention of the Plaintiff that the $2^{nd}$ $71^{st}$ Defendants' $[3]$ entry on his land was instigated and or facilitated by the $1^{\mbox{\tiny st}}$ Defendant. That upon hearing of the Defendants' unlawful entry on his land, the Plaintiff requested the Defendants to vacate his some of the Defendants reached $an$ and whereas land understanding with him to temporarily use his land, others remained adamant hence this suit. That as a result of the Defendants' unlawful entry on his land, the Plaintiff has been inconvenienced, suffered mental anguish and distress and has been deprived of the right to use and enjoyment of his land for which he holds the Defendants liable for damages. - Lastly, that besides, the Plaintiff had previously sued different $[4]$ persons in respect to the same suit land before the Chief Magistrate's Court and on appeal to the High Court (Masindi Chief Magistrate's Court Civil Suit No. 12 of 2017 and H. C. C. A. No. 11 of 2022) where he obtained judgment in favour. - In their joint defence, the Defendants flatly denied the Plaintiff's $[5]$ claims and contended without pleading the basis, that the suit is res-judicata and the same is pending appeal before the Court of Appeal.

## **Counsel legal representation.**

- The Plaintiff was represented by Mr. Omara Daniel of M/s Amani $[6]$ Law Chambers & Advocates, Hoima City, while the Respondents were represented by Mr. Idambi Paul of M/s Cumberland Advocates, Kampala. - On the $22/3/2024$ when this matter came up for hearing, in the $[7]$ presence of both Counsel for the parties, court directed Counsel for the Defendants who had not complied with the court directions to file their respective trial bundles, to do so by $12/4/2024$ . The matter was then adjourned to $7/6/2024$ for mention. On the $7/6/2024$ , again, in the presence of both Counsel, parties having complied with the court directions and filed their respective trial

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bundles, the matter was fixed for hearing on $24/6/2024$ at On the 24/6/2024, neither the Defendants nor their 2:00pm. Counsel was present in court. The matter was adjourned to $9/7/2024$ for hearing and fresh hearing notices to that effect were accordingly duly issued to and served upon Counsel for the Defendants. On the 9<sup>th</sup> day of July, 2024 when the suit was slated for hearing, once again, neither the Defendants nor their Counsel was present. This court left with no other option directed the suit to proceed in their absence.

## **Issues for determination.**

- The issues for determination as formulated in the Plaintiff's [8] scheduling notes are as follows: - (1) Whether the Plaintiff is the rightful owner of the suit land. - (2) Whether the Defendants are trespassers on the suit land. - (3) What remedies are available to the parties.

### Issue No.1: Whether the Plaintiff is the rightful owner of the suit land.

- Counsel for the Plaintiff submitted that the Plaintiff is the lawful $[9]$ owner of the suit land, the land having been lawfully allocated to him by the District Land Board. That the Plaintiff obtained the land from the then Masindi District Land Board by way of allocation That the inspection of the land when it was vacant and free. conducted by members of the Area Land Committee confirmed that the land was free and therefore available for allocation to the Plaintiff (P. Exhs.1 & 2). - [10] Counsel submitted further that the Plaintiff has ever litigated in court in respect of the suit land with other different people and the court found in his favour, that the suit land belongs to him (P. Exhs. $5 \& 6$ ).

- [11] Counsel concluded that the Defendants on the other hand failed to establish how they obtained their alleged interest on the suit land or how they came to own and possess the suit land. - [12] It is the law that in civil cases, it is an established principle that the burden of proof lies on the Plaintiff to prove his/her case on the balance of probabilities. Therefore, a party can only be called to dispute or rebut what has been proved by the other side. This is so because the person who allege is the one who is interested in the court believing his contention, (see Miller Vs Minister of Pension, [1947] 2 ALL ER 382, Lugazi Progressive School & Anor vs Sserunjongi & Ors [2001-2005]2 HCB 12). - [13] Sections 101, 102, 103 and 106 of the Evidence Act place the burden of proof on the party who asserts the affirmative of the questions or the issue in dispute. The sections impose the burden of proof upon a person who alleges the facts to exist. - [14] In the instant case, as I have already observed, the Defendants opted to offer no evidence in support of their defence. In their W. S. D, the Defendants severally denied the Plaintiff's claims without giving particulars of the denial save for stating that the suit is *res-judicata* and pending appeal in the Court of Appeal. - [15] In Esso Petroleum Co. Ltd Vs South Port Corporation [1956] A. C. 218, at p.241, it is stated:

"The function of pleadings is to ascertain with precision the matters on which the parties defer and points out upon which both parties desire a judicial decision. In order to attain this object, it is necessary that the pleadings between the parties should be conducted according to those Rules (of procedure)".

#### [16] Under **O.6 r.8 CPR**, it is provided thus:

"It shall not be sufficient for a defendant in his or her written statement to deny generally the grounds alleged by the statement of claim, or for the plaintiff in his or her written in reply to deny generally the grounds alleged in a defence $4$ | Page

by way of counterclaim, but each party must deal specifically with each allegation of fact of which he or she does not admit the truth, except damage".

**r.10** provides thus:

"When a party in any pleading denies an allegation of the fact in the previous pleading of the opposite party, he or she must not do so evasively, but answer the point of substance. Thus, if it is alleged that he or she received a certain sum of money, it shall not be sufficient to deny that he or she received that particular amount, but he or she must deny that he or she received that sum or any part of it, or else set out how much he or she received".

- [17] From the above, it appears pretty clear to me that if the Defendant makes a general denial, as in this case, he cannot without seeking amendment of the defence, be allowed to give evidence other than that which is intended merely to prove the denial. The defence cannot be permitted to adduce evidence beyond what the denials in the W. S. D permit. To conduct their case on a different footing is unacceptable as that would amount to departing from his or her pleadings, O.6 r.7 CPR, see also Byrd vs Noun [1877]7 Ch. D 287 where the defendant was precluded from calling evidence to establish what he had denied in his defence. In this case, the defence is found general and evasive thus contravened **O.6 rr 8 &** 10 CPR. - [18] In the instant case, besides the general denies which contravene O.6 rr. 8 & 10 CPR, the Defendants claimed that the suit is res-The doctrine of *res-judicata* is to the effect that a iudicata. decision on merits given by a court with competent jurisdiction over the cause of action and the parties, which disposes, with finality, of a matter decided so that it cannot be re-litigated by those bound by the judgment, except on appeal, S.7 CPA, see also Maniraguha vs Nkundiye C. A. C. A. NO. 23 of 2005. So, res**judicata** prevents a party from bringing a claim once that claim has been subjected to a final judgment in a previous case or law suit.

- [19] The Defendants did not in this case provide or attach any judgment to prove their claim of *res-judicata*. The Plaintiff on the other hand pleaded and adduced evidence of 2 judgments, Masindi Chief Magistrate's Court Civil Suit No. 12 of 2017 and on appeal vide H. C. C. A No. 11/2022 (P. Exhs.5 & 6), while explaining that he has ever litigated in court in respect of the suit land with other different people and court found in his favour that the suit land belongs to him. Upon perusal of both **P. Exhs.5 & 6, I do find that** the 2 decisions did not determine the rights of the parties in this suit. Though the suit is in respect of the suit land, it determined the rights of the Plaintiff and other different people but not the Defendants in this case. The suit is therefore in the premises found not to be res-judicata. - [20] As regards the merits of the suit, though in the instant case the Defendants offered no evidence in support of their case, their failure to do so does not relieve the Plaintiff of his legal duty to prove his case to the required standard. A plaintiff must succeed on the basis and on the strength of his own case and not on the strength of deficiencies in the defendant's case, see Piaro vs Tenalo [1976] 10 NSCC 700. - [21] The Plaintiff in this case adduced evidence that was not controverted that he applied for the land when it was vacant and not in occupation by any one. The land was then inspected by the members of the Area Land Committee and it was allocated to him by the Buliisa District Land Board (P. Exhs.1 & 2). That upon allocation, it was recommended that he proceeds the process of obtaining a certificate of title. The Plaintiff took possession of the land and placed caretakers thereon who include Rugongeza Hannington (PW2). - [22] That it was in or around 2019/2020 that floods occurred in Butiaba Town Council and caused displacement of many people by submerging their houses. As a result of the floods, many people including the Defendants were affected and they entered on the suit land without his consent, put up structures to shelter themselves. That upon receipt of the information, the Plaintiff 6 | Page

engaged these people illegally on his land and those that responded, were permitted to occupy the land as per copies of the memorandum of understanding with them on record (P. Exh.4). However, for the Defendants, after the floods had ceased, he requested them to vacate the land but they became adamant because of the instigation of the $1^{st}$ Defendant. His evidence was supported and corroborated by that of PW2, the caretaker of the suit land.

[23] In the absence of any evidence to the contrary, I find that the Plaintiff is the rightful owner of the suit land. There is no contrary evidence as to how the Defendants obtained any interest on the land or how they came to possess the land. The $1^{st}$ issue is therefore in the premises found in favour of the Plaintiff.

### Issue No.2: Whether the Defendants are trespassers on the suit land.

- [24] It is evident from the instant case that the Defendants flocked onto the Plaintiff's land upon being displaced by foods that submerged their houses in Butiaba Town Council. Upon the floods ceasing, since they had entered the land without his knowledge and consent, they outlived their stay and were supposed to leave or reach an understanding with the owner of the land, the Plaintiff. - [25] The Defendants' refusal to vacate the suit land when required to do so by the Plaintiff amounted to trespass within the meaning of Justine EMN Lutaaya vs Sterling Civil Engineering Co. Ltd S. C. C. A No. 11 of 2012 which defined trespass thus:

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

[26] In Wuta-Ofei vs Danquah [1961]3 ALL ER 596, at p.600, the privy council put possession thus:

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"...in order to establish possession, it is necessary for the claimant to take some active step in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and un enclosed land which is not being cultivated, there is little which can be done on the land to indicate *possession... In these* circumstances, the slightest amount of possession would be sufficient".

- [27] In the instant case, I find that the Plaintiff secured and had possession of the suit land by placing it under the watchful eyes of his caretakers who included PW2. Besides, the land had other people who are in occupation with his consent. He required the Defendants to vacate his land upon the cessation of the floods but they refused to leave. - [28] In the premises, I find that the Defendants entered the Plaintiff's land without his knowledge and consent and upon their failure and or refusal to vacate the land on his request, they are trespassers thereon.

#### Issue No.3: What remedies are available to the Plaintiff.

- [29] This court having declared that the Plaintiff as the rightful owner of the suit land and that the Defendants are trespassers, judgment is entered in favour of the Plaintiff with the following orders: - - An eviction order issues against the Defendants and or take $\mathbf{1}$ . an opportunity of reaching an understanding with the Plaintiff and regularize their stay on the land. - A permanent injunction issues restraining the Defendants, $\overline{2}$ . their agents or those claiming title under them from further trespassing on the suit land. - **General damages:** The plaintiff is awarded general damages 3. of ugx $71,000,000/$ = payable jointly and severally by the Defendants for the inconvenience, trauma and stress suffered as a result of trespass.

**Costs:** Under **S.27 CPA,** costs follow the event. The Plaintiff $4.$ being the successful party, he is entitled to the costs of the suit.

Dated at Hoima this $6<sup>th</sup>$ day of **December**, 2024.

Byaruhanga Jesse Rugyema **JUDGE**