Mubangizi v Gumisa and 19 Others (HCT-01-LD-CS 21 of 2019) [2024] UGHC 708 (12 July 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### **HCT-01-LD-CS-021 OF 2019**

**MUBANGIZI HARUNA ::::::::::::::::::::::::::::::: PLAINTIFF**

| VERSUS | | |-----------------------------|------------------------| | 1.<br>ABERI GUMISA | | | 2.<br>KASAGURE | | | 3.<br>GAMBAGYE ISSA | | | 4.<br>NYDANABO FEREDRIKO | | | 5.<br>KANYAMADINDA JIRIGORI | | | 6.<br>MARIA DAN | | | 7.<br>KABAMWERERE DINAH | | | 8.<br>ENSINIKWERI JUSTUS | | | 9.<br>KAGURUTSI | | | 10.<br>MUGISHA DAN | | | 11.<br>KOBURANGA MARY | ::::::::::: DEFENDANTS | | 12.<br>ISSAYA | | | 13.<br>KASHIJA MARITOZARE | | | 14.<br>NTEGYERIZE FAUSTA | | | 15.<br>BANYWANA YOSUM | | | 16.<br>ALINAITWE CRIZESTOM | | | 17.<br>MUHAMADI MUGISHA | | | 18.<br>KALISA MOSES | | | 19.<br>KAMANZI PEACE | | | 20.<br>BYENSI FELIX | |

### **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

### **EX PARTE JUDGMENT**

#### **Introduction**

The plaintiff filed this suit against the defendants jointly and severally for a declaration that he is the owner of the suit land situate at Bujunjura village, Nyangye parish, Rwentuha Sub-county in Kyegegwa District, a declaration that the defendants are trespassers on the suit land, a permanent injunction restraining the defendants from further trespassing on the suit land, general damages, mesne profits, and costs of the suit.

# **Brief Facts**

The plaintiff's claim, as gathered from his pleadings, is that he purchased the suit land from Issa Muramuzi and Mwasaza Dauda in 2013 and immediately took possession of it. That in 2017, the defendants, without the plaintiff's consent, forcefully entered the suit land, destroyed the plaintiff's properties thereon, and forcefully evicted the plaintiff. Efforts by the plaintiff to settle the matter with the defendants were unsuccessful, leading to the filing of the instant suit. The defendants did not file their respective written statements of defence to deny the plaintiff's claims.

## **Representation and Hearing**

At the hearing, Mr. James Ahabwe, R. I. P., represented the plaintiff. The matter proceeded *ex parte*. In support of his case, the plaintiff led evidence from five witnesses. The hearing proceeded by way of witness statements.

## **Issues for Determination**

The court framed three issues for determination:

- 1. Whether the plaintiff is the owner of the suit land. - 2. Whether the defendants are trespassers on the suit land. - 3. What remedies are available to the parties?

## **Burden and Standard of Proof**

In civil matters, the burden of proof rests on the plaintiff who must adduce evidence to prove his or her case on the balance of probabilities to obtain the relief sought (*See: sections 101-103 of the Evidence Act Cap 8).* The court must be satisfied that the plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that the more probable conclusion is that for which the plaintiff contends (**See:** *Lancaster Vs. Blackwell Colliery Co. Ltd 1982 WC Rep 345* and *Sebuliba Vs Cooperative Bank Ltd (1982) HCB130*).

## **Consideration by Court**

## **Issue 1: Whether the plaintiff is the owner of the suit land.**

The plaintiff, who testified as PW1 told the court that he acquired part of the suit land from his father the late Hajji Swalik Babumbura, as a gift, and bought other parcels of the suit land from his brothers, who had been gifted their respective shares by his late father.

The plaintiff testified that on 9th September 2013, he bought part of the suit land from his brother, Issa Muramuzi. He then purchased another part of the suit land from Bowumugisha Yunusu on 25th March 2014, and acquired yet another part from Ainebyona Ismail on 11th December 2015.

A copy of a gift deed dated 10th March 2013 was admitted in evidence as Pexh 1 pending translation into the court's language. The plaintiff, however, did not file a translated copy of Pexh 1, as directed by this court. A copy of the land sale agreement dated 9th September 2013 was admitted as Pexh 2, a copy of the land sale agreement dated 24th March 2014 was admitted as Pexh 3 while a copy of the land sale agreement dated 11th December 2015 was admitted e as Pexh 4.

The plaintiff further told the court that upon purchasing the respective parcels of the suit land, he fenced it, used part of it for cattle grazing, and another part for growing seasonal crops. However, in 2017, the defendants forcefully entered the suit land, each occupying a separate piece and destroying the properties thereon.

Other plaintiff witnesses, PW2, Ainebyona Ismail; PW3, Bowomugasho Yunus; and PW4, Muramuzi Issah, told the court that they sold the shares they had acquired from their father, the late Hajji Swalik Bambumbura, to their brother, the plaintiff, which forms part of the suit land. PW5, Ephraim Kashagure, the LCI of Bunjura Village, told the court that when he came to Bujunjura Village in 2001, he found the late Hajji Swalik Bambumbura occupying the suit land. PW5 further told the court that on 10th March 2013, the late Hajji Swalik Bambumbura distributed the suit land to his children, including the plaintiff, who had been using the suit land until 2017 when the defendants evicted him.

The *locus in quo* visit was conducted by the Deputy Registrar. According to the *locus in quo* visit notes, the suit land measures approximately 60 acres. The court observed the following: the 15th and 8th defendants each occupy a portion of the suit land, measuring 2 acres, where they have buildings and grow seasonal crops. The 11th and 12th defendants also each occupy 2 acres of the suit land. There is another person, Grace Kyabeishiki, who resides on the suit land neighbouring the 20th defendant. The 8th defendant occupies part of the suit land, having purchased 1½ acres from the plaintiff. The plaintiff admits this but asserts that the 8th defendant also occupies 1¼ acres belonging to the plaintiff. The 1st , 2nd, 5th, 9th, 14th, 16th, and 17th defendants also each occupy 2 acres of the suit land.

The plaintiff identified the land he bought from his brother Yukubu which is approximately 8 acres. Bowomugasho Yunus, who testified as PW3, also informed the court that he sold 9.2 acres to the plaintiff. Ainebyona Ismail, who testified as PW2, also showed the court 9 acres he sold to the defendant. Issa Muramuzi, who testified as PW4, also showed the court the portion of land he sold to the plaintiff which measures approximately 9 acres.

# **Court's Analysis of Issue 1**

I note that the testimony of the plaintiff who testified as PW1 sets up a case different from the one pleaded. In his plaint, under paragraph 4(a), the plaintiff states that:

> *"a) In 2013, the plaintiff purchased the suit land situate in Bujunjura Village, Nyangye Parish, Rwentuha subcounty in Kyegegwa district from two people, namely Issa Muramuzi and the 2nd part from Mwasaza Dauda…"*

In his testimony, however, the plaintiff set up a different case and testified that he acquired the suit land from 4 people: his late father the late Hajji Swalik Bambumbura, and his brothers – Issa Muramuzi, Bowomugisha Yunusu, and Ainebyona Ismail. He never testified, as he pleaded in the plaint that he bought part of the suit land from Mwasaza Dauda.

The *locus in quo* notes show that the suit land measures approximately 60 acres. This would mean that, going by the plaintiff's pleadings, the suit land measures 9 acres he bought from his brother Issa Muramuzi, plus the part that the plaintiff allegedly bought from Mwasaza Dauda, although he did not testify on the later acquisition. The plaintiff's testimony that he acquired the suit land from his late father and other brothers like Bowomugisha Yunusu, and Ainebyona Ismail was never pleaded, in the first place. This only came up at the trial.

At the *locus in quo*, the plaintiff also showed part of the suit land that he allegedly acquired from his other brother Yakubu, but the plaintiff neither mentioned that fact in his pleadings nor testified on the same while in court.

Clearly, the plaintiff's testimony at the trial departs from his pleadings. The issue of departure from the pleadings by any party to a suit is settled. Order 6 Rule 7 of the Civil Procedure Rules Provides that:

> *No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading.*

In the case of *Jani Properties Ltd Vs. Dar es Salaam City Council [1966] EA 281* it was held that:

> *"Parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record and moreover, the court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings" (Also see: Semalulu Vs. Nakitto (supra)).*

In the case of *Interfreight Forwarders (U) Ltd. Vs. East African Development Bank, SCCA No. 33 of 1992*, the Supreme Court held thus:

> *"[A party] will not be allowed to succeed on a case not set up by him and be not allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by the way of amendment of the pleadings."*

The plaintiff did not amend his plaint to reflect that he acquired the suit land from both his father and his brothers, who are not mentioned in the plaint. This departure from the pleadings strikes at the core of the truthfulness of the plaintiff's testimony and casts doubt on the authenticity of his claim against the defendants.

In the premises, I am inclined to apply the foregoing principles on departure from pleadings, and it is my finding that the plaintiff's case at the trial is inconsistent with what he pleaded. Therefore, the plaintiff's claim of ownership of the suit land cannot be proved on balance of probability. Issue 1 is therefore answered in negative.

Having answered issue one 1 negative, I find no reason to delve into the merits of issues 2 and 3.

Resultantly, the plaintiff's claim against the defendants fails, and the suit is hereby dismissed with no order as to costs.

It is so ordered.

This Judgement was made ready by 30th June 2024 before the 7th Revised Edition of the Principal Laws was published and therefore sections cited herein apply mutatis mutandis.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**