Mboineki and Others v Gahwera and Others (LAND CIVIL SUIT NO.045 OF 2023) [2025] UGHC 233 (3 February 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **LAND CIVIL SUIT NO.045 OF 2023 [Formerly Masindi High Court Civil Suit No.0068 of 2020]**

**1. MBOINEKI JOHN 2. ATUGONZA CRISPUS 3. NSEKU SAYUN ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS (Suing by representative action on behalf of themselves and 170 Others)**

#### **VERSUS**

**1. GAHWERA FRANSCO 2. MUJUNI ROBERT 3. MUJUNI ALEX 4. KABAGAMBE COLLIN 5. BUSINGE GODFREY 6. MUGEMA ALFRED NYAMAZABO 7. KABAIKARAMU VINCENT 8. TUMWESIGYE DENIS 9. GAMBE COLLINS :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

*Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **JUDGMENT**

### **Background**

- [1] The Plaintiffs bought this suit in a representative capacity on their behalf and on behalf of 170 Others having obtained representative order vide **Misc. Application No.37 of 2020.** - [2] The Plaintiffs' claim against the Defendants jointly and severally is for a declaration that the suit land located in **Kansisi, Kayeke, Waikitu and Wamamba (Kirama village) Buliisa district** belong to the Plaintiffs and 170 Other farmers, a permanent injunction halting the Defendants from

trespassing on the land, eviction, compensation for damage and destruction of trees, general damages, mesne profits and costs of the suit.

- [3] It is the Plaintiffs' case that at all material times, the Plaintiffs customarily owned the suit land which they have used for grazing life stock, cultivation and other activities and continued to occupy and utilize undisturbed. - [4] That during the process of acquiring land for the **Resettlement Action Plan 2** (RAP 2), the Defendants with **Atacama consulting Agency,** took chance of the Plaintiffs' absence, surveyed the suit land for purposes of acquiring the same for oil and gas related activities and a consent was signed by the Defendant claiming to be the rightful owners. - [5] The plaintiffs lodged complaints with **Atacama consulting Agency** through the L. C1 Chairman of Kirama village in regard to land grabbing by Bagema clan of Kirama village and an **Adhoc committee** was constituted following the Kigwera sub county council meeting of 30/8/2018 under Minute 8/8/2018 which issued a report confirming that the land belonged to the Plaintiffs and the Other 170 farmers. - [6] The Plaintiffs contend that they are aggrieved by the actions of the Defendants as they continually fraudulently claim the suit land, intimidate farmers, cut down trees and illegally construct structures to benefit from the compensation for the Oil pipeline. - [7] In their joint Written Statement of Defence (WSD), the Defendants save for **Businge Godfrey** (the 5th Defendant), denied the Plaintiffs' claims and averred as follows: - a) That some of the defendants were born and are in occupation, utilisation of part of their clan land undisturbed and have built permanent, semi and temporary structures, buried relatives and are activating and rearing animals on their respective portions they customarily inherited from their forefathers, the Bakurasi-Bagema clan as the rightful owners.

- b) That the 7th Defendant occupies part of the suit land he acquired long ago and that it was subject to a court dispute and the matter was determined in his favour. - c) That the Plaintiffs are a group of land grabbers who do not have any development on the suit land but are hiding under the alleged 170 farmers not known in the Defendants' area to own any piece of land. - d) That the plaintiffs' alleged complaints to Atacama consulting RAP services and the alleged **Adhoc committee Report** are misplaced because they are neither aware nor were party to those complaints.

# **Counsel legal representation**

[8] The Plaintiffs were represented by **Mr. Omara Daniel of M/s Amani Law Chambers & Advocates Hoima** while the Defendants were represented by **Mr. Willy Lubega** being assisted by **Mr. Joachim Mutyaba** both of **M/s Lubega, Babu & Co. Advocates, Kampala**. Both firms of advocates filed their respective submissions for consideration in the determination of this suit.

# **Issues for determination**

- [9] As per the joint scheduling memorandum filed on 18/10/2022, the following issues were framed for determination by this court. - 1. Which of the parties is the lawful owner of the suit land. - 2. What remedies are available to the parties.

# **Issue No.1: Which of the parties is the lawful owner of the suit land.**

[10] Counsel for the Plaintiffs submitted that the Plaintiffs as farmers and members of Kirama farmers Group were the owners of the suit land. That as per **PW1's** evidence, the plaintiffs' forefathers owned and utilized the suit land for grazing and upon their demise, the plaintiffs continued utilizing the same undisturbed until 2018 when the Defendants started claiming it, after parts of it had been earmarked for acquisition for the **Resettlement Action Plan No.2** (RAP 2). That upon the Defendants' claims, the Plaintiffs complained to Atacama and Total Energies **(P. Exh.1)** and Kigwera sub county which formed an Adhoc Committee to investigate ownership and the committee came up with the findings which among others are to the effect that the land belonged to the Plaintiffs **(P. Exh.2).**

- [11] Counsel contended that the Defendants illegally constructed and established houses on the suit land as per the photos **(P. Exh.4)** which were confirmed by court on its locus visit of the suit land. - [12] That on the other hand, **DW1** could not tell the size of the land acquired by his grandfather or describe the boundaries or **DW2** naming any person buried on the suit land. - [13] Counsel concluded that on a balance of probability, the plaintiffs as members of Kirama Farmers Group, proved that they are the owners of the suit land. - [14] Counsel for the Defendants on the other hand submitted that the plaintiffs brought this suit out of greed. That having discovered that the Defendants were compensated for part of their land which was affected by the oil pipeline, the plaintiff decided to file this suit without basis. - [15] That the suit land had earlier on been litigated upon in the judgments of the Chief Magistrate's Court of Buliisa vide **C. S No.03 of 2020** between **Asiimwe Merida** (9th plaintiff/PW3) and **Mujuni Alex** (3rd defendant) in favour of the Defendant **(D. Exhs.1&2),** and then Chief Magistrate's Court of Buliisa, **C. S No.17 of 2015** between **Wandera Christopher & Anor Vs Mujuni Alex** (3rd Defendant) **& Anor** in favour of the Defendants **(D. Exhs. 3 & 4).** - [16] Counsel concluded that the Defendants are in possession of the suit land while the plaintiffs are not hence the Defendants have a better title to the suit land, **Drabo Stanley Vs Madira Jimmy, HCCS No.24 of 2013** thus he prayed for dismissal of the suit with costs.

- [17] It is trite that he who approaches the court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. In **Sebuliba Vs Coop. Bank Ltd [1982] HCB 130,** It was held that in Civil suits, the burden of proof lies with the plaintiff who has to prove his or her case on the balance of probabilities. **Ss. 101 & 103 of the Evidence Act** are to the effect that 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. He who asserts must affirm, see also **Jovelyn Barugahare Vs A. G, SCCA No.28 of 1993.** - [18] In the instant case, the evaluation of evidences as adduced by the plaintiffs' witnesses; **Mboineki John** (PW1), **Nseku Sayuni** (PW2) and **Asiimwe Merida** (PW3) is to the effect that though some of the plaintiffs have houses on the suit land, others like **PW1**, do not stay on the land but they carry out agricultural and livestock activities thereon. Others own thereon trees. The plaintiffs' evidence is supported by the **Kigwera Sub county Adhoc Committee** which was set up to investigate the ownership of the land following a complaint made by the plaintiffs and group addressed to **Atacama Consulting Agency** which had identified and were surveying the land for purpose of acquisition for oil and gas related activities. The Committee came up with a report **(P. Exh.2)** to the effect that the suit land belongs to the plaintiffs. - [19] The K**igwera Sub county Adhoc Committee** was constituted following the Kigwera Sub county meeting of 30/8/2018 under **Minute 8/8/2018** to investigate/look into the land in Waikitu, Kansisi, Kayeke and Wamamba (the suit land) between the family of **Wandera Mugema** (the Bagema) and Farmers community. The "farmers" in the report are referred to as Plaintiffs while the "Bagema" are referred to as the Defendants of the Bagema clan. - [20] The Kigwera Sub county Adhoc Committee findings contained in its report **(P. Exh.2),** are among others:

- **1. According to the evidence adduced to the Committee, farmers cultivated this land to the extent that each was required to procure a roll of barbed wire in the initial stages.** - **2. Acquisition of land was by vacant occupation and it was not for a particular family. There was also evidence that the farmers knew their neighbours and the committee during site visit, saw old boundary marks.** - **3. Gardens started from Kansisi and when someone vacated, his land remained as evidenced by sell of land by other farmers to a one Kaahwa Francis and Vicent Dollar Man [alias Kabaikaramu Vicent - 7 th Defendant/DW3].** - **4. The committee established that farmers left this land at different periods while others remained behind cultivating cotton. But even those who went to Ngwendu still owned the land (Bigambu) and no body encroached or occupied the said land until oil development activities started. This is evidenced by only new structures the committee found in the said land.** - **5. Bagema clan members did not appear before the committee as they chose to write to the committee with reasons for not attending. However, the farmers turned up in big numbers which justifies their claim.** - **6. The farmers also raised a number of complaints among them, assaults by Bagema, Bagema cutting down big trees and destroying their features to destroy their evidence. They also complained of Bagema putting up new structures in the land as a way of claiming ownership.** - [21] The committee concluded with the recommendations but majorly that the Plaintiff farmers have a genuine claim against the Defendant Bagema. The acts of beating up people, threatening violence were intended to destroy evidence. That the formers should be allowed to use their land without any hindrance. The Defendant Bagema rushed to put up structures to benefit from the compensation for the oil pipeline. The contents of the findings of the committee are consistent with the evidence of **PW1** who at **p.9 of the proceedings** stated thus:

*"The defendants are oppressing us because they know we are*

*to benefit from oil benefits such as compensation. We allowed TOTAL to proceed with the activities as we battle this suit."* See **P. Exh.4***.*

[22] As regards the violence orchestrated by the Defendants against the Plaintiffs highlighted in the report, **PW2** during cross examination stated thus:

> *"The defendants have trespassed on our land where we carry out cultivation of crops. Their motive is to secure the TOTAL compensation forms….. The defendants cane whoever they see come to the land to cultivate. They have forcefully occupied it."*

- [23] Counsel for the Defendants referred to the Kigwera Sub county Committee Report **(P. Exh.2)** as not authentic because though certified, the certifying officer did not attach a cover letter to that effect addressed to court. I find that it has never been a legal requirement that a certifying officer of a document has to necessarily attach a cover letter to prove the certification of the document. - [24] 2ndly, that though the Report was signed by a one **Hon. Alijunaki Julius Abayo** and other members of the **Adhoc Committee**, none of these members testified in court. I find that **P. Exh.2** being a public document under **S.73(a) ii of the Evidence Act** such a document is admissible in evidence for proof of the contents thereof under **Ss.75,76 and 77(1)(c ) of the Act** without requiring the authors or responsible officers appearing in court to testify, save if the contents are contested with adverse evidence, which I find was not the case in the instant case. - [25] The **5 th Defendant** never filed a defence and the **3 rd , 4 th , 5 th , 6 th , 8 th and 9th Defendants** never testified in court. It is taken that they did not challenge the Plaintiffs' case because their case is not a "representative action defence" envisaged under **O.1 r.8 CPR** where the evidence of the 1st, 2nd and 7th Defendants would be taken to be that of the Defendants who did not testify. The 1st, 2nd and 7th defendants who testified, they did not challenge the contents of the **Adhoc Committee Report (P. Exh.2).**

- [26] The **Adhoc Committee Report** is also consistent with the findings of court at locus. **Kabaikaramu Dollarman Vicent's** (DW3) land was noted and it is referred to in the report, that he bought it from **Gabolya** family of the Plaintiffs' farmers' Group. Though it is located on the land owned by the farmers, he legally acquired it and indeed, it was recognised in **D. Exh.3** together with that of **Kaahwa Francis** which borders it. The Plaintiffs' complaint is **DW3's** claim beyond his recognised boundaries to include the portion affected by the pipeline yet as he admitted during locus, his portion which was affected, he was fully compensated. The same also apply to **Mujuni Alex** (3rd defendant). His portion of land was noted during locus and it recognised in **D. Exhs.1&2**. It is however outside the suit land which comprises of the part affected by the pipeline. It is his wrongful claim of that portion which is outside the suit land that is irking the Plaintiffs. - [27] In conclusion, I find that the claims of the Defendants that the Plaintiffs are not in possession of the suit land not correct. As per the Report of the **Kigwera Sub county Adhoc Committee** which investigated complaints regarding the suit land, it is the Plaintiffs in possession carrying out agricultural activities and homes thereon. As a totality of the above, I find the Report, **P. Exh.1** credible and therefore reliable as proof of the Plaintiffs' claims. As per the locus sketch map, **Asiimwe Imelda** (PW3) neighbours **Alex Mujuni** (3rd Defendant) and she unsuccessfully disputed part of the portion of the land with the 3rd Defendant vide **Buliisa Chief Magistrate's court, C. S No.03 of 2020.** During locus, her agricultural activities were noted. - [28] The possession of the suit land attributed to the Defendants therefore in this case, is a consequence of their trespass to the suit land but not a result of true ownership of the land. As a result of the above, I find that the Plaintiffs have proved on the balance of probabilities that they are the rightful owners of the suit land. The 1st issue is accordingly found in favour of the Plaintiffs.

## **Issue No.2: What remedies are available to the parties.**

- [29] The Plaintiffs having been found to be the rightful owners of the suit land, judgment is entered in their favour for the following: - a) **A declaration** that the Plaintiffs and 170 Others are the rightful owners of the suit land. - b) **A permanent injunction** halting the Defendants from trespassing on the suit land accordingly issues. - c) **Compensation for damage to land and trees:** The Plaintiffs have not adduced evidence regarding the trees destroyed for assessment of the compensation. This claim accordingly fails. - d) **Eviction of the Defendants from the suit land.** The Defendants having been found trespassers on the suit land belonging to the Plaintiffs, they are liable for eviction. In the premises, an eviction order accordingly issues. - e) **General damages:** These are the inconveniences and losses the Plaintiff suffer as a direct and natural consequence of the defendant's actions which the law presumes, and the court will assess the damages based on the value of the subject matter, economic inconvenience and the nature and extent of the injury or loss, **Wangala Philip Vs Steel & Tube Industries Ltd, HCCS No.212 of 2018.** Considering the trauma and inconvenience the Defendants have occasioned to the Plaintiffs, violently denying them use of their land, I award the Plaintiffs **Ugx 340,000,000/=** thus entitling each plaintiff or his/her estate **Ugx 2,000,000/=** which shall carry an interest of **12% p.a** from the date of judgment till payment in full. - f) **Costs:** The Plaintiffs being the successful parties are granted costs of the suit **(S.27 CPA).**

Order accordingly.

Dated at Hoima this **3 rd day of February, 2025.**

> **……………………………………… Byaruhanga Jesse Rugyema JUDGE**