Kintu and Another v Kasumba and 8 Others (Civil Suit 2604 of 2016) [2023] UGHCLD 254 (24 August 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DTVTSTON) CIVIL SUIT NO.26O4 OF 2016

1. DICK KTNTU PLAINTIFFS 2. FLAVTA KINTU VERSUS 1. KASUMBA MUTEBI EMMANUEL 2. MUTEBI FRANK 3. KIYAGA EDWARD 4. BAKALUBA FRED 5. ROSE NAMUTEBI ------------DEFENDANTS 6. NALWOGA CHRISTINE 7. NAMAYANJA CAROLINE 8. NANKYA NOERINA 9. NALUMANSI RITA

## JUDGMENT BEFORE AG. HON, I,ADY JUSTICE KANYANGE SUSAIV

The plaintiffs claim against the defendants as for dcciarations that the defendants arc tre spasse rs on the plaintiffs' land situatc at Gayaza Road at Lutccte and spccilically known as Block 187 plot 783, an eviction order against the defendants, pcrmancnt injunction, general damages, interest and costs.

Thc plaintiffs averred that on 4th day ol Novcmber 2OO7 thcy purchased the said land from thc latc Nalumansi Sarah Namulcme and she wrote to thc Secrctary Uganda Land commission rcqucsting for transfer and subdivision of land in their favour in 2010.

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After her death the 1"t defendant claimcd hc was to collect compensation from the said land for his childrcn. ln 2072 the defendants without any claim descended on the plaintiffs'land and started establishing a day-time makc-shift markct thcrcby trespassing on the iand. They uprooted barbcd wire and fencing poles and matter was reported to police.

In their writtcn statement of the defcndants whcrcin thcy also counterclaimcd, the l"t defendant averred that thc latc Nalumansi Sarah Namuleme had only ora,lly agreed to scll 12 decimals of her land to the plaintiffs in 2OO7 but did not sign written contract o[ salc as she did not know English and did not undcrstand thc contcnts of the written agreement.

Further to this that the plaintiffs forged her signature and transfcrrcd land in their names aftcr hcr death. The 1"t dcfcndzrnt avcrrcd that he was thc husband to thc said Nalumansi Sarah Namulcmc and other defendants are hcr childrcn. That shc did not obtain his consent in 2OO7 when selling the family land. Thcy praycd salc is declared null and void for lack of statutory conscnt by spousc, transfer to the plaintiffs be declarcd null and void, the plaintiffs be declared trcspassers on thc dcfe ndants land, ccrtilicate of titlc bc cancelled by the Registrar of Titlcs, eviction ordcr and dcmolish of structures issue, permanent injunction, gencral damages and costs of the suit to be awarded.

In reply to the written statement of defencc thc plaintilfs dcnicd thc contents in the written statement of defcncc and countcrclaim. They averred that the late Na-lumansi Sarah Namulcmc was a scller and absolute owner having inherited the said land lrom her lathcr thc latc Serukwaya Fred and therefore the 1't defendalt's consent was not necessary.

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That it is false that the deceased demanded for re-drafting of the agreement.

### Representation

M/s M. Kannanrzi & Co. Advocates rcprcscntcd thc plaintilfs while M/s Kasiisa & Co. Advocates rcprcscntcd thc dcfendants.

#### Issues

- 1. Whethcr the plaintiffs are the lawful owncrs of the suit land - 2. Whether thc defendants arc trcspasscrs on thc suit land - 3. Whether the parties arc entitlcd to thc rclicfs sought

### Resolution

# 1. Whether the plaintiffs are the lawful owners of the suit land.

The 1"t piaintiff Dick Kintu testified that on thc 4th day of Novcmber 2OO7 lrc purchased land measuring approximatcly 0. 1 <sup>O</sup>t hcctarcs off O.42O hectares comprised in Kyadondo Block 1t37 plot No.043 leasc hold Register Volume 3378 folio 27 at Gayaza road Luteetc lrom the former owner the latc Nalumansi Sarah Namuleme. Thc said Sarah had inheritcd thc samc from her late lather Serukwa.ya Frcd in form of a kibanja. Transfer documents were cxecuted and thc plaintilfs were registered on the land.

After her death thc l"t defendant husband and the defcndants hcr relatives asked for his documents which hc handcd over. Prcviously he had also bought Block 187 plot 64 1 from the latc Nalumansi Sarah Namuleme. Hc enjoyed quiet possession of suit land from 2OO7 until September 2Ol2 wlrcn the dcfendants trespasscd on his land and he reported to police.

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PW2- Andrew Kisitu a neighbor and closc fricnd to Nalumansr Sarah Namuleme testified that the deceased had family challenges and requested him to keep her certificatc of titlc for Block 187 plot 643. She requested him in 2OO7 to call thc l"t plaintilf and shc informed him she wanted to sell part of her land and also nccdcd hcr title. A sales agreement was made for purchasc ol 0. 101 hcctarcs olf O.42 hectares between her and the ptaintiffs. He witncsscd the plaintiffs' handing over the money to the dcceased and thc title for subdivision. The residue title was returncd to him which hc later handed ovcr to the childrcn after thc death of Namulcmc.

DW-1- Nankya Noelina a daughter to the dcccased Nalumansi Sarah Namuleme testified that her mother was illiteratc and did not know how to read and write. That shc callcd hcr on thc 4th day of Novcmbcr 2OO7 to interpret the agreement but shc had already signcd it. Shc said she had agreed to sell only 12 dccimals of lamily land to thc plaintiffs but not 25 decima-ls.

They assured her that Land Commission did not allow titlc ol <sup>12</sup> decimals and thcy do not intend to takc more of that and promiscd to correct the mistake. That she was the only child consulted on thc purchase, but other family members werc not consultcd and there was no spousal consent.

DW-2- Kasumba Mutebi Emmanucl thc husband to thc dcccascd and father to the Znd,3rd,4th,Sth,7rh,8th and 9rh dcfcndants, tcstilicd that the wife was illiterate and unable to communicate in any other language apart from Luganda. That aftcr hcr dcath he learnt of thc plaintiffs and had no knowledge that his wilc had sold part of thc family land without his consent and consent of his adult childrcn.

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The 1"t plaintiff gave him documents for proof of purchasc and salc was null and void.

Counsel for the plaintiffs submitted that the plaintiffs are in possession of certificate of titlc and its conclusivc prool of ownership as exceptions have not been provcd. That DW-1- Nankya witnessed sa,le and told the 1"t dclendant when hcr mother was still in hospital. Hc did not dispute thc salc.

Further to this that land is not family land as she inhcritcd it from her late father and sold it in her own right. That area sold was 25 decimals and not 12 decimals.

In reply counsel for the defcndants submittcd that thc dcccased was illiterate and that this was family land and no spousal consent was obtained from the 1"t defendant. That the l"t defendant conceded to sale ol 12 decimals but not the <sup>13</sup> decimals which he learnt about after death of thc wifc. Furthcr to this that the 2nd,3,d,4th, srh and 8,h defendants wcrc carrying on farming on thc suit land which gardcns wcrc dcstroycd by the plaintiffs.

Under S.59 of the Registration of Titles Act posscssion of a certificate of title by a rcgistered pcrson is conclusivc cvidcncc of ownership of the land.

Further under S. 176(cl a registered proprietor of land is protected against an action for ejectmcnt cxccpt on ground o[ fraud.

Scc Kampala Bottlers versus Darnanico (U) Ltd SC Civil Appeal No.22 of L992 and Katarikawe versus Katuramu & Anor L977 HCB pg. 187. Therclorc thc plaintilf can only bc

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impeached on grounds of illegality or fraud attributablc to thc transfcrcc.

Fraud should be specifically plcadcd and strictly provcd as pcr the case of G. M Combined Limited versus A. K Detergents (U) Limited Civil Appeal No.7 of 1998 (2OOO) UG SC 9 <sup>14</sup> February 2OOO.

The defendants in this case did not plead fraud but alleged that the area sold to the plaintiffs was not 25 decimals but <sup>12</sup> decimals and that the deceased signcd the agrccmcnt without understanding it as shc was illiteratc and thcrc was no spousal consent and children consent as it was family 1and.

The term illiterate is defined undcr S.1(b) of thc Illitcratcs Protection Act to mean in relation to any documcnt a pcrson who is unable to read and understand the script or languagc in which the docu.mcnts is written and printed.

S.2 thereof provides for verification of the illiteratc's mark or any document and that prior to the illitcrate appcnding his or her mark on the document it must be read ovcr and cxplaincd to him or her.

S.3 thereof requires that thc documcnt writtcn at the rcquest on behaif or in the name of any illiteratc must bear ccrtification that it fully and correctly represents his or hcr instructions and was read over and explained to him or hcr.

The purpose of thcsc provisions wcre considcrcd in thc casc of Tikens Frances and Another versus The Electoral Commission & 2 Others HC Election Petition No.1 of 2012 where it was held that the input ol S.3 of thc Act is to cnsurc that documents which arc purportedly writtcn lor and on

w instructions of illiterate persons arc understood by such persons if they are to be bound by thcir contcnt.

These stringent requirements were intended to protcct illiterate persons from manipulation or any oppressive acts of literate persons.

In instant case, the agreement ol salc of land dated 40' November 2007 was signcd by Nalumansi Sarah Namuleme. She appended her names. It indicate s that she sold off approximately 25 decimals at shs 10,000,000 and was witnessed by DWl Nankya hcr daughtcr. Hcr letter to thc secretary to Uganda land commission was writtcn on 14th November 2007 requesting to transfcr 25 dccimals to plaintifls and she wrote her namc on it. Thc plaintiffs wcre registcred on the land on 25th August 2008

I do not believe the defendants vcrsion that thc dcccascd did not understand thc document she signcd or that shc was illiterate. She was able to write hcr namc and sold olf 25 decimals and not 12 decimals as they claim. Thc agrcemcnt was witnessed by DW1 Nzrnkya Noclinc hcr daughtcr. Shc claimcd shc was only called by mother on 4th Novembcr to intcrprctc the agreement. I wonder why after she read it shc did not cnsure it was corrected. She claims that plaintiff told thcm, they would not issue title of that acreage but this did not stop thcir agreement reflecting the correct arca sold.

In cross examination she claimcd she signcd to acknowledge receipt of money and did not interprete agrccmcnt apart lrom lettcr to Uganda land commission.

I find that the deceased Nalumansi Sarah Namulcmc was not illiterate and she sold off 25 decimals to thc plaintiff and not 12 decimals as the defendants claim and she understood what shc was signing.

## Spousal consent

S.39(1) (c) of the Lzrnd Act provides that no person may scll or enter into any other transaction in re spcct of land on which thc person ordinarily resides with his or her spouse and from which they derivc their sustenance except with prior conscnt of his or her spouse.

## In the case of Alice Okiror& Anor versus Global Capital Save And Another.

It was held that the Land Act provides for sccurity

of occupancy of the family iald which mcans land whcrc the residence of the family is situatc. Before such land is sold or mortgaged there must a clear spousal conscnt. Whilc in casc of Muwonge versus Kintu High Court Divorce Appeal No.135 of L997 (Unreported) Justice Bbosa obscrved "Matrimonial property is understood differently by diffcrcnt pcoplc. Thcrc is always property which thc couplc chosc to call homc. Thcrc may bc propcrty which may bc acquircd scparatcly by cach spouse before or after marriagc. Then thcre is propcrty which a husband may hold in trust for the clan. Each of thcsc should in my view bc considercd differcntly.

The property to which each spousc should bc cntitlcd is that property which the parties chose to call home and which they jointly contribute.

In this casc it's not in dispute that thc dcccascd Nalumansi Sarah Namulcmc inhcritcd thc land in issue from latc Serukwaya Fred her father. Shc first sold off part of thc kibanja to the plaintiffs measuring 72 feel by 1O mctres ol road rcscrvc

by 212 feet along Gayaza road for 12 million on thc l'L day o1 march 2OO4. That agreement was not witncsscd by thc 1"1 defendant ald does not indicate hc conscntcd to the salc.

In regards to the land in issue the deccascd was seiling ofl a portion of land approximately O. O1 hcctares oll O.42O hcctares and PW2 Kisitu who kept for her land titic said it was bccausc she had family challenges. The 1"t defendant from his cvidencc was not only residing at Luteete but says he resides in differcnt places ,Kasunga,Kalungu, Lutecte, Matugga and Migaddc and has another wife in Masaka. He also says hc docs not disputc thc 12 decimals but only the additional 13 decimals.

Its trite that even in marriage thc right to own propcrty individually is constitutionally prcscrvcd in Article 26( 1) of the constitution.

The deceased inherited thc land from hcr fathcr and it was hcr individual land. She was residing on part of it with hcr family and cultivating on it. I lind that she had a right to sell off portion ofthe land as she had challenges and she did not need spousal consent of the l"t defendant who has diffcrcnt rcsidences elsewhere and did not derive his sustenancc lrom thcrc' Whcn court visited the land at locus in quo, it was vacant land and it had been fenced off by the plaintiffs. Thcre wcrc no signs of graves as thc dcfendants had claimcd. Court was shown thc remaining portion that had rcmaincd and it had bcen dividcd by defendants and most had been sold off. Thc 1"t dcfcndant was not residing near the suit land.

I thereby find there was no necd for spousal conscnt and deceased sold land to plaintilfs so they arc thc rightlul owncrs of the suit lald

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2)Whether the defendants are trespassers on the suit land. In the case of Justus E M N Lutaaya versus Sterling Civil Engineering Co. SCCA No.1l of 2OO2 rclicd on by both counsel trespass was statcd to occur whcn a pcrson makcs unauthorized cntry upon land thcrcby intcrlcring or prctcnds to interlere with another pcrson's lawful posscssion of land. in ordcr to succced on trcspass thc Court ol Appcal in Sheik Muhammed Kitaka Enterprises Ltd CA No. O4 of L987 observcd that one must provc;

- i. That the disputed land bclongcd to thc plaintifl - ii. That thc delendant entcrcd upon it - iii. That the entry was uniawful in that it was madc without permission or that thc dcfcndant has no claim or right or interest in the disputcd 1and.

The 1"t plaintiff Kintu Dick testified that he bought thc land on the 4th day of November 2OO7 and fcnced it oll to protcct his interest. That on the 3'd day of Scptembcr 2012 Lhc dcfcndants descended upon the land uprooted his barbed wire and established a day-time make-shift markct. I-Ic rcportcd to policc and opened up civil suit. They wcre removed aftcr a court injunction had becn given to him.

DW- 1- Nankya testified that the market was se t upon thcir land and not that of the plaintiff.

DW-2- Kasumba Mutebi Emmanuel tcstificd that thcy had a plantation on that land and graves and that the markct was established outside the 25 decimals.

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Counsel for the plaintiff submitted that thc actions ol the defendants in trying to build a markct thercon as admittcd in their evidcnce amounted to trespass.

Counsel for the defendants submitted that it was the defendants'evidence that they were on land prior to its illcgal acquisition by the plaintiffs until it was graded and thcy were forcefully evicted. That the status was aitered and all crops plantations and structures erased down. Hc prayed that I find that the defendants are not trcspassers on thc land.

It's evident that the piaintiff took over posscssion of thc land in 2OO7 aftcr purchase and fenccd it oll. This was during the tifetimc of Nalumansi the scller who dicd in 2OOU. Thc act of the defendants removing the barbed wires and crccting a markct on that portion of the land amounted to trespass.

I thereby find that the defcndants trespassed on the plaintiffs' land.

## 3) Whether the parties are entitled to the reliefs sought.

Having found that the plaintiffs arc thc rightful owncrs of thc suit land and that thc dclendants trcspasscd thcrcon, . Iudgment is found in favour of thc plaintifl with thc lollowing orders praycd for,

- 1) A declaration that the defcndants are trespassers on land situate at Gayaza road Luteetc on Block 187 plot 783. - 2) A permanent injunction hereby issucs against the defendants restraining them from trespassing on thc land. - 3) General damages and interest

Gcneral damages are compensatory in naturc. Thcy should restore somc satisfa.,rorrr." far as moncy can do to thc

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injured plaintiff. see case of Takye Kushwahire and another versus Kayongo Denis CACA 85 OF 2O11

In Uganda Commercial Bank versus Kigozi 2OO2 L EA pg 35, court gavc guidancc on how to asscss thc quantum of damages. That the consideration should mainly bc thc valuc of thc subject mattcr, thc cconomic inconvcnicncc that <sup>a</sup> party may have bccn put through and thc naturc and cxtcnt of the breach or injury suffercd.

When court visited the locus in quo it found plaintiff had fenced off the land and plantcd grass.l"L plaintilf tcstificd that when he got the interim order and injunction, thc makeshift market was removed. Though he has not yct devclopcd that portion of the land as he is waiting lor this casc to end. Considcring the fact that defendants wcrc rcmovcd from thc land after the injuction, I do not find it ncccssary to grant general damages and interest.

4) The plaintiffs are awarded costs of the suit.

t- .l (4e DAY OF -- <sup>2023</sup> DATED AT KAMPALA THIS

fr KANYANGE SUSAN AG JUDGE LAND DIVISION.