Makubuya v Kimuli and 4 Others (Civil Suit 1243 of 2021) [2024] UGHCLD 215 (20 August 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) **CIVIL SUIT NO. 1243 OF 2021.**

TOMASI MAKUBUYA::::::::::::::::::::::::::::::::::: **VERSUS**

- 1. KIMULI RICHARD - 2. TUSIIME GILBERT - 3. KIRYOWA BASHIR - 4. KIBUUKA MOSES

5. MASAGAZI SYLVESTER ::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. MR. JUSTICE TADEO ASIIMWE**

#### **JUDGMENT**

#### **BACKGROUND:**

The plaintiff's claim against the defendants jointly and severally is for recovery of land measuring approximately one acre and forty decimals at Bukasa, Bulooba, Wakiso District, the declaration that he is the rightful and legal owner of the suit kibanja, permanent injunction against the defendants, order of vacant possession, in alternative an order of compensation for the value of the land, mesne profits, general damages and costs.

On the other hand, the $1^{st} - 5^{th}$ defendants denied the plaintiff's claim and contended that the said kibanja originally belonged to Crespo Samson who gave the same to

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Nalinkirabye Damian. That the said Nalinkirabye Damian bequeathed it to the 1't defendant at the age of 17 years. That the plaintiffhas never occupied the suit land which has been in possession of the 1't defendant with developments including a school built by his son. That the l'' defendant sold a portion ofthe said kibanja to Masagazi Sylvester (51r, defendant). That the plaintifls claim is bad by limitation which ought to be struck out and that the suit land does not belong to Fumbe Clan.

The 2nd defendant pleaded that he is a bonafide purchaser having acquired a portion of land from Timothy Njagweso and Priscilla Nyagweso who had acquired the same from Bakemba Frank and has since developed the land with chicken houses. The rest ofthe defendants also claim to be bonafide purchasers having acquired their interest from persons different from the plaintiff without notice and prayed for dismissal of the suit with costs.

In a scheduling memo, the parties agreed on the following issues; -

- L Whether the plaintiff is the owner of the suit kibanja' - 2. What remedies are available to the parties.

At trial the plaintiff was represented by Counsel Elijah Enyumu while the 1'L5th defendants were represented by Counsel Kajeke Kenneth.

At the conclusion of the trial, both Counsel for filed written submissions which I will consider in this Judgement.

#### THE LAW

The general rule is that he or she who asserts must prove and the burden of proof therefore rests on the person who must fail if no evidence at all is given on either

side. The standard of proof required to be met by either party seeking to discharge the legal burden ofproofis on a balance of probabilities.

### In Miller V Minister of Pensions ll947l2 ALL E R 372 Lord Denning stated:

"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it more probable than not, the burden ofproofis discharged but if the probabilities are equal, it is not."

It is also the position of the Law that the evidential burden does not shift to the defendant unless there is cogent and credible evidence produced on the issue for determination.

In a bid to proof their case, the plaintiffs led evidence of 3 witness and closed while the defendants also called 3 witnesses and court called I witness.

PWl, Makubuya Tomasi testified that the suit kibanja was originally owned by his grandfather late Njala-Emenya Yakobo. That his father Malisio Lubwama built a house on the suit land before he died. That Nlainkilabye Damian was disqualified from becoming heir who had had committed a crime which the clan believed to have caused the death of his father Malisio Lubwama. That Nalinkirabye Damian was only allowed to stay on the suit kibanja but never owned it. That following the death of their grandfather Njala-Emenya Yakobo, his brother Angelo Ssekiwekwa was appointed heir and took over caretaking of the suit land. That over time between 1980 and 1990's all his brothers have passed on including Nalinkirabye Damian leaving only himself and his sister Nabagala Milania. That in 1966, he was appointed aheir to Njala-Emenya Yakobo and in tum to care take the suit kibanja and requested Lubwama Charles son to care take the suit kibanja until his death in 1999. That since 1999, he has been a custodian/caretaker and owner of the suit kibanja until the 1't defendant begun selling portions of the same without his consent despite the fact that

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t rt:

it has graves of family members. That subsequently when he grew up he began his family home in Masaka. That later the 1'1 defendant forcefully made his way on to the suit kibanja at Bukasa and started dwelling there. That in2007, he reported the l't defendant and the clan allowed him to stay on the suit kibanja where he built a small house and started laying bricks. That in 2019,we discovered a third party who had described himself as Salongo Mawazi who had set a permanent structure on the suit land claiming to have purchased from the 1't defendant. He was reported to the clan and a meeting was called and he admitted having sold the land to Salongo whereby he was cautioned against making any further sales of the suit land to third parties before he returns to Masaka. That however he did not take it he went ahead to sell all the kibanja to third parties and left the village after he had been reported to police. That the defendants took advantage of the covid lock down and set up permanent structures on the suit land including a poultry farm and rental houses despite the Court injunction in place blocking access to family graves. That the suit kibanja is a family burial ground and it has a family land for all the years. That he has continued to suffer making trips from Masaka to Kampala to attend this dispute.

In cross-examination, he confirmed that he did not have any document to show ownership. That PE1, is a clan document stopping the l" defendant from further dealing on the land in dispute. That the suit was filed on behalf of Efumbe clan and not in his personal capacity and he did not know how the Fumbe clan got the suit land. That originally his grandfather Njala-Emenya Yakobo was holding the suit land on behalf of the Efumbe clan but passed it to Malisio Lubwama, his father. There is no will and no letters of administration granted to anyone including himself. That the suit kibanja is about 3 acres and he has been in charge ofit on behalfofthe clan (Fumbe). That currently the suit land is in possession of the 1't defendant who has sold some parts. That he does not have a residential house in the suit land. That

he knew late Nalinkirabye Damian as their older brother and their father was Malisio Lubwama and their grand is Yakobo Njala Emenya. That the said Damian Nalinkirabye did not produce children but the suit land was not his so as to give it to the l.tdefendant built. That it is true the l't defendant built a school in suit land without his permission.

In re-examination, he clarified that he did not know the clan members but it is the clan which appoints the caretaker of its land and that in this case it is him who was appointed as a caretaker and no individual clan member has ownership for clan land since it is owned jointly as one parcel and all members of the clan only have user righrs. That the suit land has third parties who have built on it and Fumbe clan did not remain with any portion of the said kibanja as it was sold by his son, the l't defendant.

PW2, Kimuli Godfrey testified that he is well versed with the lineage and birth of his elder Makubuya Tomasi (plaintiff.l. That the clan lineage commenced with late Njala-Emenya Yakobo who was the original owner of the suit kibanja who produced late Malisio Lubwama who in turn produced many boys including the plaintiff and Damian Natinkirabye. That the rest of the children of Lubwama passed away living only the plaintiff as a male child. That the ptaintiff was installed the heir of Njala-Emenya Yakobo by the clan and that the I't defendant is the plaintiff s son. That he is currently the clan leader by appointment and as such has attended many burials of his family members on the suit land. And that at the time of his appointment as a clan leader, the plaintiff was already having the mandate of stewardship of the suit kibanja as a heir. That he received a complaint from the plaintiffthat the 1't defendant has sold his land at Kito without permission and the issue was resolved in spirit of

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forgiveness and the I't defendant was allowed to stay in the suit kibanja at Bukasa. Eventually he received a lot of complaints that the 1'1 defendant had sold a portion of the suit kibanja and a clam meeting was held and he was cautioned never to make any further sales in vain. That after the lockdown he left the suit kibanja he visited Bukasa himself and found permanent structures and mark stones demarcating plots and the land had been graded by Damazo property agents which he protested to the office ofthe LCs. That the l't defendant has caused great headache and as a family and leaders of the clan arising from this illegal and unauthorized sale of the family land to the third parties of which he should be penalized.

In cross-examination he stated that his burial ground is found in the suit landand others like Walusimbi, Dominico and Kikwajuko. That he was appointed a clan (Fumbe) leader in 1999 and he knew Njala Emenya Yakobo as the original owner of the suit land. That the said Yakobo Enjala Emenya acquired the suit land as his private property but now it belongs to the entire clan lineage and no clan member has private/individual property rights. That the plaintiff is just a caretaker who does not have private ownership over it.

That they authorized the plaintiff to sue on behalf of (Fumbe clan). No minutes but can produced later.

That the I't defendant never stayed on the suit land with Damian. The 1" defendant came to the suit land in 1990's and even participated in his selection as a clan head' That so many people have acquired their interest in the suit land from the I't defendant.

PW3, Kasolo Ronald he testified that he is the secretary of records of the sub lineage of "Omutuba gwa Kateebe". That he is aware of the kibanja which originally belonged to Njala-Emenya Yakobo used by all of them as clan members. That he is aware of the history of the kibanja from the time of his birth and which family members have been using the same from when he was bom. That a small part of the suit kibania was in the use of Damina Nalinkilabye who was allowed to use the land as a clan member but was disqualified from inheriting the same arising from his crimes on the village theft. That entire suit kibanja was put under the care and control of the late Balezi Lawrence by the clan as heir of their great grandfather, Njala-Emenya Yakobo. That after the passing of Balezi Lawrence, his son Robert Makubuya was his personal heir but the caretaker role for the suit kibanja passed to his surviving younger brother Charles Lubwama. That after the passing of Charles Lubwama the caretaker role reverted to Tomasi Makubuya the only surviving son of the late Malisiyo Lubwama. That finally Tomasi Makubuya as the last male direct descendant ofthe late Njala-Emenya Yakobo was appointed as heir and caretaker of the suit kibanja. That he also knew Kimuli Richard as a relative bom to Mzee Makubuya Tomasi who brought him from Masaka and is staying on Mzee Makubuya's land in Kito near them but taking care of our great grandmother Sefuloza Namugenyi. That after her death, he stayed on the said land at kito and used it. That he visited Kimuli Richard in 2006 when he was still living at Kito area. That when he returned to Bukasa, he found Kimuli had shifted and was occupying a portion of the suit kibanja in Bukasa. That Kimuli had built a small house on the land, digging thereon and making bricks. That the clan leaders and Mzee Makubuya had no reservations about him using the land as a family member until they discovered an outsider had set up a pernanent structure on a part of the kibanja in 2019. That upon making inquiries they discovered that Kimuli had sold the land to Ssalongo Muwaazi. That he was cautioned against making any further sales of the property and he promised not to make any further sales. That shortly after/towards the end of the covid-19 national lockdown, they discove was breaking ed

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down his house on the land and making effort to leave the village. That they later discovered that Kimuli had sold portions of the suit kibanja to third parties. That the defendants took advantage of the national lockdown and constructed permanent structures on the suit land. That the clan wrote a letter in protest to the Local Council I Chairperson about the said sale. That Kimuli when confronted about these actions in aggregate even threatened that harm might befall him if he continued to fight on behalf of Mzee Makubuya. that all he has stated herein is true and correct to the best of his knowledge and belief as his testimony in chief.

In cross-examination, he did not have an appointment letter as secretary of Mutuba. He stated that the suit land originally belonged to Njala Emenya Yakobo his great grandfather. That Upon Yakobo's death, the suit property was managed by Malisio Lubwama who produced about 7 childrenand the suit property was managed by his son Angelo Sekikwekwa. Upon Sekikwekwa's death, the suit property was managed by Damiano Nalinkirabye who died in 1980's then Balezi Lawrence took over the management who handed it over to Charles Lubwama for caretaking and eventually to the plaintiff who is his grandfather. That the graves are in a small portion. That the suit land is family land for all the descendants of Yokobo. The plaintiff is just a caretaker. That Damian Nalinkirabye had a home in this land. That the l't defendant entered in the suit land in 2007 and built a house which he later demolished and he is a son to the plaintiff. That the l't defendant had a school on the land but Iater demolished it. That they all have user rights not ownership.

In re-examination, he clarified that the burial grounds are over 70 years old and it land measures about 50x,l00ft which contains graves in a state of abandonment' DWl, Kimuli Richard testified that he is the 1't defendant in this suit' That he is a son of the plaintiff. That the suit kibanja comprised in Bukasa village Buloba Parish wakiso sub county, wakiso District originally belonged to the late crespo Samson who gave the same to Nalinkirabye Damian. That the late Nalinkirabye Damian who was childless bequeathed the said kibanja to him and he took possession ofthe same at the age of l7 years. That in or about 2003, he built a school on the said kibanja under the name Platinum College and the said school because fully operational in or around 2014. That the plaintiff has never occupied the suit kibanja and the documents relied upon by the plaintiff did not vest ownership of the said kibanja to the plaintiff and he has never caretaken the suit kibanja on behalf of the plaintiff' That he later sold a portion of the said kibanja to Masagazi Sylvester Domazo' That he was prompted to sell the said kibanja because Bukasa Bukulu was developing very fast and his son wanted to get a more spacious place to shift the school to' That he also sold a portion of the suit kibanja to Kiberu Rogers. That the plaintifls claim is barred by the law of limitation as he has occupied the suit kibanja since the time he was l7 years without any challenge from the plaintiff till 2021 when the plaintiff filedthisSuit'ThatthesuitkibanjahasneverbeenownedbytheFumbeC|anand therefore the confirmation letters have no evidential value. That his occupation of the suit kibanja was lawful and he is not a trespasser thereon. That he makes this statementprayingthattheplaintiffssuitbedismissedwithcosts.

In Cross-examination he confirmed that the suit kibanja was inherited and it is one acrebutoriginallyownedbyCrespoSamson'Hedidnothavedocumentstoprove it but got it from Damian, his uncle. whoo died 37 years ago. That before his death, hewasutilizingthesuitlandtogetherwithhim'Thathewaswaslayingbricksand Damian Nalinkirabye was growing crops since 1980'

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Damian bequeathed the land to him upon his death since o ld. No Letters of Administration were issued to him. That sometimes he would stay at Sefuroza's mother at Kito as visitor. That he never sold land with Sefuroza's remains which were first buried at Kito village and later re-buried in the suit land by the plaintiff with his consent on temporary basis. That the grave yard is about 44years old and the plaintiffhas buried other 4 persons in the suit land.

The clan called me recently after he had had sold the suit land and received about 150,000,000/: (one hundred and fifty million). That he didn't need a clan consent because the land was his. In Re-examination, he clarified that the grave yard measures 70x50 fts.

On being asked by Court to clarify, he confirmed it is him who was in occupation of the suit land. That the plaintiff, his biological father's residence is in Masaka to date and he has never utilized the suit land.

DW2, Tusiime Gilbert testified that he is 2nd defendant in this suit. That he purchased a portion of the suit kibanja from Nyangweno Timothy and Priscilla Nyaneweso who had in tum purchased the same from Bekamba Frank. That at the time of purchase the sellers were in possession and occupation of the suit kibanja' That after purchase he took possession of the suit kibanja and he greatly developed the same without anybody complaining. That he is a bonafide purchaser for the value without notice of defects in title. That the plaintiff has no interest in the suit kibanja and he is not entitled to any ofthe remedies sought for. That his occupation ofthe suit kibanja is lawful and he has not trespassed on the same. That he makes this statement praying that the suit be dismissed with costs.

In cross-examination he confirmed that he bought land measuring 50x100ft from Nyagweso as per (DE3) at shs 12 million.

Its size is found in the earlier agreement (DE2) its 100 x 50ft which I bought in December 2018. That he also bought a kibanja from Masagazi Silvester and Donozio is known to him as businessman but there was no dealings with him. That his agreement is not forged and it was drafted by the seller and he didn't know existence of any title in the suit land at time of purchase.

DW3, Masagazi Sylvester Domazo testified that he purchased a portion of the suit kibanja from Kimuli Richard. That before he purchased the suit kibanja from Kimuli Richard he inquired from the neighbors to the suit kibanja and the area LCs who confirmed that the suit kibanja belonged to Kimuli Richard. That he took possession of the said kibania and he later sold it to Mugerwa Livingstone Kigongo. That the plaintiffhas never occupied the suit kibanja and he has no interest thereon. That the documents from Fumbe Clan do not vest ownership of the suit kibanja in the plaintiff. That he makes this statement to confirm that the plaintiff has no interest in the suit kibanja and the suit ought to be dismissed with costs.

In cross-examination he confirmed that he got notice of intention to sue when he took possession of the land. That he inquired from neighbors and LCI before purchase of the suit kibanjaas per DEI which had a school structure belonging to seller, Kimuli Richard, trees as well and a compound.

CWl, Ndagire Gartrude testified in Court that she knew both the plaintiff in this case, and his son the I 't defendant. That she knows the plaintiff as her father (uncle) and the l.r defendant his cousin brother. That she knows the land in dispute which is registered in the names of administrators of the estate of late Samson Kigozi (Ndagire children. Gartrude and Nalubwama Betty who died i ing behind 4 l9 le

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Two are now dead leaving herself and Bayizi Nalwanga. She further stated that the plaintiff was a brother to Samson Kigozi who donated to him a portion of land (Un registered interest) of about less than an acre. (Less than a football pitch). That they are prepared to give him a title if he wants. The suit Kibanja was given to the l't defendant to use and not sale as he ( 1 't defendant) sold without her consent. She was not sure ofhow long the defendant has used the land' That the suit land is not clan land but plaintiff s private property and she was not aware of the dispute between the parties till summoned by Court. That the plaintiff has never developed the suit land apart from burial of unknown persons. That she has never visited the place recently. The suit land has the l't defendant's house with the plaintiff s consent'

In Cross-examination, she confirmed that the l't defendant has never sought consent to sale the suit land and he has never owned any interest. That the 1't defendant was in the suit kibania as caretaker with permission from the plaintiff'

In further cross-examination by the defendant, she stated that Late crespo Samson was her grandfather and Nalinkirabye Damian was her uncle, who did not have a child. That said Damian was brother to plaintiff. That when Narinkirabye Damian died, the l.rdefendant was installed as his heir with her participated in his selection. That Damian had a house and it was occupied by one Malisio Sekikwekwa. That the house was removed by l.,defendant and he built his own house and a school. That the 1', defendant had right to use suit land the way he wanted and she didn't object to his construction. That they consented to all his activities including farming' The plaintiff has never complained about the 1't defendant's land to them. That as landlords they sold a piece from the suit land to enable them secure the land title in issue and they have never demanded payment of any Busuulu because its occupied by family members' That is was family land being kept by 1't defendant'

## RESOLUTION

## l. Whether the plaintiff is the owner of the suit kibanja

Before resolving this issue, I wish to deal with the question raised by the Defendant's Counsel in his written submissions on time limitation. The defendant's Counsel submitted that the suit is time barred as the 1'1 defendant has stayed on the suit land since 1990's and that is the time the cause ofaction arose.

The Black,s Law Dictionary 4th t5 edition at page 2716 defines limitation as a statutory period after which a lawsuit or prosecution cannot be brought in court.

Order 7 rule 11 (d) Civil Procedure Rules (as amended), provides that; -

The plaint shall be reiected in the following cases-

(d) where the suit appears from the statement in the plaint to be barred by any law;"

Further, under Section 5 of the Limitation Act 80, it's provided that; - "No action shall be brought by any person to recover any land after the expiration of l2 years from the date on which right of action accrued to him or her or if it first accrued to some person through whom he or she claims to that person"-

The period of limitation starts to run from the time the person is dispossessed of the land in dispute. This is because recovery of land is an action by which a person not in possession of land can recover both possession and title from the person in possession if he or she can prove his or her title. The limitation under Section 5 of the Act is applicable to all suits in which the claim is for possession of land, based on title or ownership i.e., proprietary title, as distinct from possessory rights. (See Odyek Alex & Anor Vs. Gena Yokonani, Civil 21Appeal No, 09 of20l7& Kasoya Justine & Anor Vs. William Kaija &3 others Civil Suit No. 6 of 2015)'

The Major Import of the statute of limitation was considered by the Hon. Justice Stephen Mubiru in Odyek Alex & Anor. Vs. Ge i&4othersCivil na Yokon

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Appeal No. 09 of 2017 thus: "Two major purposes underlie statutes of limitations; protecting defendants from having to defend stale claims by providing notice in time to prepare a fair defence on the merits, and requiring plaintiffs to diligently pursue their claims. Statutes of limitation are designed to protect defendants from plaintiffs who fail to diligently pursue their claims. Once the time period limited by The Limitation Act expires, the plaintiffs right of action will be extinguished and becomes unenforceable against a defendant. It will be referred to as having become statute barred.

In this case the plaintiffs cause of action as per the amended plaint on record is for

a. Recovery of land measuring approximately one acre and .forty decimals at Bukasa. Bulooba, Lltakiso District, the declaration that he is the rightful and legal owner of the suit kibanja, permanent iniunction against the defendants, order of vacant possession, in alternative an order of compensation for the value ofthe land, mesne profits, general damages and costs' The defende in their wsD. stated that the l'' defendant has stayed on the suit land when he was lTyears and he testified at the age 57 years'

On the other hand, the plaintiff testified as PWI and confirmed that the 1't defendant forcefully entered the suit land in 2OO7. PWz stated that the l't defendant came to the suit land in 1990's. PW3 confirmed that 1't defendant built a house and a school on the suit land in 2007.

From the plaint and the evidence on record, the nature ofrights the Plaintiffsought to enforce in the suit were ofa possessory nature, hence this was for all intents and purposes an action for recovery of land which was unlawfully possessed by the 1't defendant and eventually sold to other persons.

Therefore, whether the 1'1 defendant came to the suit land in 1990 or 2007 as alleged by the plaintiff and his witnesses, the limitation period begun to run either in 1990's or 2007 when the I st defendant allegedly entered on the suit land'

Either way the 12 years of limitation as enshrined in the law had expired in2021 when this sr,it was instituted.

Besides the plaintiffdid not plead any disability that occurred after he found out that the l'r defendant entered on his alleged land.

In the case of Iga v. Makerere university 1197218A65), court stated that a litigant puts himself or herself within the limitation period by showing the grounds upon which he or she could claim exemption, failure of which the suit is time-barred, the court cannot grant the remedy or relief sought and must reject the claim.

It is also trite law that a Plaint that does not plead such disability where the cause of action is barred by limitation, is bad in law.

As already stated, the plaintiffin this case did not plead any disability that occurred after he found out that the l'1 defendant entered on his alleged land. The plaintiff simply complained the clan members instead of commencing a legal action'

The Limitation Act is a very strict and mandatory law and in the case of Departed Asian Property custodian Board vs Dr. J. M Masambis court of Appeal, civil Appeal No. 04 of 2004, Court held that the action against the appellant was time barred under the Limitation Act Cap.80.

Court further emphasized "that this Court and the Supreme Court have held in many cases that enforcement of provision of a statute is mandatory. . . ."

I therefore find that this suit is barred in law and the objection is sustained.

However, I wish to add that even if the suit was not barred by law, uninterrupted and uncontested possession of land for a long period, hostile to the rights and interests of the true owner, is considered to be one of the legally recognized modes of acquisition of ownership of land (see Perry v. Clissold [1 7l AC 73, at 79). ln

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respect ofunregistered land, the adverse possessor of land acquires ownership when the right of action to terminate the adverse possession expires, under the concept of .,extinctive prescription" reflected in sections 5 and 16 of The Limitation Act. Where aclaim of adverse possession succeeds, it has the effect of terminating the title of the original owner of the land (see the case of Rwajuma v. Jingo Mukasa, H'C'

## Civil Suit No. 508 ot 2012).

As a rule, limitation not only cuts off the owner's right to bring an action for the recovery of land that has been in adverse possession for over twelve years, but also the adverse possessor is vested with title thereto." The plaintiffs case would also fail on the basis ofadverse possession by the l't defendant.

I find no reasons to resolve other issues framed by the parties.

Accordingly, this suit is without merit. The same stands dismissed on the basis of a preliminary objection.

## COSTS.

Ordinarily, costs follow the event and are discretionary as per section 27 of the CPA. In this case the defendants would be entitled to costs. However, the plaintiff is father of the l'1 defendant and in the spirit of promoting reconciliation, I would decline to award costs. Each party shall bear its own costs.

I so order \ tr TADEO JUDGE 2010812024 \

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