Kayongo v Nampala & 5 Others (Civil Suit 174 of 2020) [2024] UGHCFD 87 (24 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (FAMILY DIVISION)

### **CIVIL SUIT NO. 0174 OF 2020**

**KAYONGO PAUL MARK ::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

1. NAMPALA ANITA 2. ANGEL MARY NAKAMYA NAMUWAYI 3. JULIAN GELLA WEYUNA NABULYA 4. NSOBYA JOSEPH 5. BAKKA FAUSTINE 6. SSEBISUBI JOHN PAUL::::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA

#### **JUDGMENT**

1]. The plaintiff's claim against the defendants jointly and severally is for a declaration that he is the lawful owner of a plot and house located at Mutungo Parish, Nakawa Division, Kampala, general damages, punitive damages and costs of the suit.

2]. The facts constituting the plaintiff's cause of action against the defendants as stated in his plaint is as follows; -

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- That on the 13th June 2015 the plaintiff entered into a sale of $(i)$ land agreement with the 1st defendant for the purchase of a plot and house located at Mutungo Parish, Nakawa Division, Kampala District for a total consideration of one hundred and eighty million shillings (180,000,000/=). - That the plaintiff agreed to pay fifty million shillings $(ii)$ $(50,000,000/=)$ with the remaining balance to be paid later. - That on the 14th March 2017, the plaintiff entered the third and (iii) final agreement with the 1st defendant whereby he completed payment of the total purchase price by paying the remaining fifty million shillings $(50,000,000/=)$ and was assured by the defendants that he was free to utilize the plot and house after seven months to allow the $1^{st}$ defendant to relocate. - $(iv)$ That after the completion of the above agreement, the 1st defendant did not vacate the premises and this forced the plaintiff to take up the matter with the relevant local council authorities of the area.

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- That around 2018, after several attempts at resolving the issues $(v)$ between the plaintiff and the 1st defendant, it was revealed that the suit property had been the property of the late Nakaweesa Florence and the 1st defendant a sister to the deceased was the one who had been the occupant of the same for twenty years. - That on 24th August 2019, the 2nd and 3rd defendants who are $(vi)$ daughters of the late Nakaweesa Florence then ratified the agreement between the plaintiff and the 1st defendant their aunt and the plaintiff added them thirty million shillings $(30,000,000/=)$ and they assured the plaintiff that he was now free to use the suit property for his own purposes without any more family disturbance and as such any cases that had been filed in the various courts of law would be withdrawn. - That as the plaintiff was in the process of occupying his $(vii)$ premises, the 4th, 5th and 6th defendants through their agent a one Kato Peter Kirunda without any colour of right broke into the suit premises and is still illegally occupying the same which forced him to report a criminal case against him for

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recomme

criminal trespass at the Magistrates Grade One Court at Luzira which is still pending vide Nak - Co. 507 of 2019.

- That the $2^{nd}$ and $3^{rd}$ defendants had filed a case against the said (viii) Kato Peter Kirunda in the Chief Magistrates' Court of Nakawa for vacation of the suit premises, but were ordered by the court to obtain letters of administration as the best alternative. - That the 2nd and 3rd defendants filed Civil Suit No. 91 of 2020 $(ix)$ against the 4th to 6th defendants in this court seeking among others, an order revoking the grant of letters of administration of the estate of the late Nakaweesa Florence that had been granted to them and a declaration that they are the right persons to be granted the letters of administration for the same estate. - That the $2^{nd}$ and $3^{rd}$ defendants aver that being daughters of the $(x)$ late Nakaweesa Florence and as such sole beneficiaries, they should be granted letters of administration for the same while revoking those of the 4th to 6th defendants who they claim fraudulently obtained the letters of administration for the

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estate of the late Nakaweesa Florence vide Administrative Cause No. 1226 of 2019.

- The plaintiff contends that he is the lawful owner who bought $(xi)$ the suit land from the family of the late Nakaweesa Florence, bonafide, which indeed agreed to hand over the house to him but because of ulterior motives such as greed, some of them want to deprive him of his interest in the land. - $(xii)$ The plaintiff further contends that all the family members including the 4th, 5th and 6th defendants agreed to the above mentioned sale as evidenced during the various meetings that took place with the family members and local authorities, which agreement was corroborated by their agent Kato Peter Kirunda's statement and as such he is surprised as to why the $4th$ , $5th$ and $6th$ defendants are suddenly changing their positions now. - That it is because of this that the plaintiff wants to protect what $(xiii)$ is lawfully his since it is clear that the property located at Mutungo Parish, Nakawa Division Kampala District does not

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and should not be considered as part of the estate of the late Nakaweesa Florence.

- The plaintiff contends that the defendants have no colour of $(xiv)$ right to interfere with the suit land and that the defendants' actions are illegal and amount to deprivation of his rights to property for which he will seek for recovery of the same. - $(XV)$ That in the alternative and without prejudice to the foregoing, the plaintiff seeks for recovery of his purchase price from the defendants. - The plaintiff further contends that as a result of the conduct of $(xvi)$ the defendants, he has suffered inconvenience and anxiety for which he will claim for general damages. - The plaintiff further contends that the defendants' actions are $(xvii)$ unconstitutional and should not be allowed for which he claims for punitive damages.

$3$ . The plaintiff also $i$ s seeking for following the declarations/remedies; -

$6$ | Page - $(i)$ A declaration that he is the lawful owner of the suit land. - That the suit land does not form part of the estate of the late $(ii)$ Nakaweesa Florence. - In the alternative but without prejudice to the foregoing an (iii) order compensation $\mathbf{of}$ for the purchase price $\overline{of}$ $180,000,000/=$ . - $(iv)$ General damages. - $(v)$ Punitive damages. - $(vi)$ Interest at the rate of 22% on (iii) and (iv) from the date of judgment till payment in full. - $(vii)$ Costs of the suit. - (viii) Any other relief that this court deems fit.

4]. Much as the defendants filed written statements of defence, they never appeared in court to defend the case though they were duly served and there is an affidavit of service on record.

5]. The plaintiff proceeded by way of a witness statement and filed written submissions.

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The issues to determine now are whether the plaintiff is entitled to the remedies he sought in his plaint.

6]. The plaintiff adduced evidence that he purchased the suit land which was a plot situate at Mutungo Parish, Nakawa Division, Kampala District a consideration of one hundred and fifty million shillings at $(150,000,000/=)$ from the 1st defendant. The sale agreements were tendered in court and marked as exhibits P1 to P4.

7]. The plaintiff also adduced evidence that the 1st defendant did not vacate the premises and he reported the matter to the local authorities of the area. The plaintiff further stated that the $2^{nd}$ and $3^{rd}$ defendants who are daughters of the late Nakaweesa Florence approached him and told him to add them thirty million shillings (30,000,000/-) which he paid to them and they ratified the agreement he had made with the 1st defendant and they assured him that he was free to use the suit land.

8]. The plaintiff stated that as he was in the process of occupying his premises, the 4th, 5th and 6th defendants through their agent a one Kato Peter Kirunda broke into the suit premises which they are still occupying

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and he reported a criminal case against them at the Magistrate Grade One Court of Luzira vide NAK. Co. 507 of 2019.

9]. The plaintiff contended that the family members including the $4^{th}$ , $5^{th}$ and 6th defendants agreed to the said sale. The plaintiff's evidence was corroborated by Kaweesa Boaz the local council 2 Chairman for Mutungo area Parish who also adduced evidence by way of a witness statement.

10]. He stated that he witnessed the sale transaction of the suit land between the plaintiff and the 1st defendant. He also stated that the family members consented to the sale.

11]. The plaintiff's evidence was not challenged by the defendants. It is a general principle of law that failure to defend a case operates as an admission of all the allegations raised in the plaint

I find that the plaintiff has proved his case since he was not challenged by the defendants.

12]. Judgment will therefore be entered for the plaintiff with the following declarations/orders; -

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- $(i)$ The plaintiff is the rightful owner of the suit land. - $(ii)$ The defendants should give vacant possession of the suit land to the plaintiff. - (iii) If the suit land has been transferred to third parties, the defendants are to compensate the plaintiff in the sum of one hundred and eighty million shillings (180,000,000/=). - $(iv)$ The plaintiff will be awarded general damages of forty million shillings $(40,000,000/=)$ for the inconvenience caused to him by the defendants. - The defendants will pay interest on (iii) at the rate of 10% $(v)$ per annum from day of the cause of action till payment in full. - $(vi)$ The defendants will pay interest of 10% per annum on general damages awarded (iv) from the date of judgment till payment in full. - The plaintiff is also awarded the costs of this suit. $(vii)$

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Hon. Justice John Eudes Keitirima.

24/05/2024