Mukundufile Evarist Sebisaho v Nyando Sub County Local Government Council (Land Civil Suit No. 17 of 2017) [2021] UGHCLD 60 (31 March 2021)

### **THE REPUBLIC OF UGANDA**

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

#### **LAND CIVIL SUIT NO. 0017 OF 2017**

`

#### **MUKUNDUFITE EVARIST SEBISAHO---------------------------------PLAINTIFF**

**VS**

#### 10 **NYUNDO SUB-COUNTY LOCAL GOVERNMENT COUNCIL--DEFENDANT**

#### **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

#### **JUDGMENT**

- 15 The plaintiff sued the defendant seeking: - 1. A declaration that the plaintiff is the owner of the suit land - 2. An order directing the defendant to vacate the suit land - 3. A permanent injunction and eviction order - 4. Special Damages totalling UGX 104,500,00/= - 20 5. General Damages - 6. Costs of the suit.

#### Plaintiff's claim

The Plaintiff is the lawful owner of the suit land located at Mukungu village, Nyundo Parish, Nyundo Sub-county, Kisoro District, having purchased the land from Mr. John Mareeba on the 16th July 2000. Upon purchase, the Plaintiff took possession of the land, which shared a boundary with the Defendant's land, by planting pine, Cyprus and eucalyptus trees. Minutes of the Defendant's meeting dated 14th 5 January 2007

acknowledged the Plaintiff's ownership of the land. The Plaintiff applied to the have the suit land converted from customary tenure to freehold tenure in 2005.

Subsequently, the Defendant's agents, Mr. Tushabe, Mr. Katarikawe and all the then Councillors of Nyundo Sub-County trespassed on the suit land. When the Plaintiff 10 complained about the trespass, the Defendant's agents caused his arrest alleging that the land belonged to the Defendant and that the Plaintiff had forged the land sale

agreement.

Mr. Sam Nyonzima, Sub-County Chief of the Defendant forced the Plaintiff to surrender the original sale agreement to him and since then he has never got it back.

15 And the Plaintiff was forced to sign a memorandum to surrender the suit land to the Defendant. The vendor, Mr. John Mareeba was also threatened into denying selling the suit land to the Plaintiff.

The Defendant took over the suit land in 2011 and cut all the trees acts belonging to the Plaintiff which amounted to trespass, hence this suit.

20 Defence

The Defendant contended that the suit land has at all material times been government land the Defendant has never acknowledged the Plaintiff's ownership thereof. The Plaintiff was hired by the Defendant to plant trees on the suit land and was paid for his work. It was the Defendant's assertion that the Plaintiff voluntarily surrendered the suit

25 land to the Defendant through a signed memorandum of understanding. At no time did

the Defendant and its agents confiscate the Plaintiff's original sale agreement. The suit was therefore baseless and ought to be dismissed with costs.

At the trial, three witnesses testified for the Plaintiff and eight witnesses testified for the Defendant. This court visited the locus in quo on the 11th September 2020. Prior to

5 that, the court visited the home of Mr. John Mareeba, 85 years old, who was unable to make the journey to court to testify on account of being bedridden. His testimony was crucial, in my view to the determination of this matter since the Plaintiff testified that he purchased the suit land from this old man.

I received submissions from Counsel for the parties and I have taken note of the reasons 10 stated for late filing which I accept. All the submissions have been duly considered by this court in arriving at its decision.

Turning to the issues, the same were not articulated by Counsel in their Joint Scheduling Memorandum filed on the 11th September 2020. In their submissions, Counsel for the Plaintiff and the Defendant proposed the following issues for this court's determination;

- 15 **1. Whether or not the Plaintiff is the lawful owner of the suit land?** - **2. Whether the Defendant trespassed on the suit land?** - **3. Whether or not the Plaintiff was threatened/ coerced by the Defendant's sub-county chief Sam Nyonzima to sign a memorandum making him surrender the suit land to the Defendant?**

#### 20 **4. Whether the Plaintiff is entitled to the remedies sought?**

In my view, before any of these issues can be resolved by this court, this court must first resolve the issue of **which land comprised suit land?** This question was of paramount importance in determining the rights of the parties to this suit.

### **RESOLUTION**

25 **Issue 1**

#### **Which land comprised the suit land?**

According to the Plaint filed on the 27th April 2017, the cause of action in this suit is indicated under paragraph 4(i) as follows;

'*The Plaintiff is lawful owner of land located at Mukungu village, Nyundo Parish,*

5 *Nyundo Sub County, Kisoro District having acquired the same by way of purchase from one John Mareeba on 16th July 2000.'*

There is no further description of the suit land in the Plaint. In his evidence in chief under paragraph 5, the Plaintiff described the suit land by its boundaries and indicated that; '*on the left side it is Government land.'*

10 DW8, John Mareeba testified that he sold land to the Plaintiff. In his testimony, he stated,

*'I sold the land at Mujebe to the Plaintiff. I have never cultivated in Ibambiro. I have never stepped there…Yes, I sold the land at Mujebe to the Plaintiff, not the Ibambiro land. I don't know the land at Ibambiro.'*

15 When this court arrived at the locus in quo at Mukungu Cell, the Plaintiff testified as follows;

'*Before us is Ibambiro hill. It belongs to the Government. I do not own any land on that hill. My land is at Mujebe.'*

This court walked further to the second vantage point at Mujebe hill at Mukungu village 20 and the Plaintiff was recalled again and stated;

'*This is the boundary of the Mujebe hill, my land is below the swamp. The trees you can see are my pine trees. The iron roofed house belongs to Didas (DW1) and Bigyero Charles(DW4).'*

Finally, this court visited the third site also at Mujebe hill where again, the Plaintiff was recalled to point out his land and he stated;

'*This is the land I bought from Mareeba's family and Jogo. You cannot see the land I bought from Mareebe as an individual (Exb. P.1). In total, the land I bought from*

5 *Mareeba's family is 3 acres approximately. I bought from Mareeba 8 plans. 1 plan is 2 football fields.'*

A perusal of the Written Statement of Defence filed on the 23rd May 2017, makes no distinct description of the suit land and appears to maintain its description as contained in the Plaint. At all times in the WSD, the Defendant refers to the land as; 'the suit land'.

- 10 However, the Defendant's witnesses; DW1, Garubanda Didas, DW2, Mpagazihe Daudi, DW3, Barugahare Africano, DW4, Byigyero Charles, DW5, Ndyanabo Peter, DW6, Ntahontuye John and DW7 Nteze Mpaka Herbert, each referred to the land as the '*suit Government land*' in their statements filed on the 10th September 2020. In particular, DW7, former Sub-county chief of the Defendant, under paragraph 3 of his - 15 witness statement, testifies that;

'*I know the suit Government land located at Ibambiro- Mukungu village, Nyundo Subcounty, Kisoro District on a hill known as Ibambiro and it exclusively belongs to the Defendant.'*

The Plaintiff makes no claim over the Government land in Ibambiro as described by the 20 Defendants. He specifically acknowledged this position at the locus in quo. His claim is over land at Mujebe, which he acquired by purchase from DW8, John Mareebe. At the locus in quo, the Plaintiff attempted to explain that he bought two pieces of land. One from John Mareebe in his own right and another from John Mareebe's family. The Plaint makes mention of only one piece of land acquired on the 16th July 2000 from 25 John Mareebe. Any attempt to add a further claim, by the Plaintiff amounted to a departure from his pleadings which is prohibited. See **Herbert v Vaughn (1972) 3 All ER 122.**

I find that the suit land is as described under paragraph 4(i) of the Plaint; l**and located at Mukungu village, Nyundo Parish, Nyundo Sub County, Kisoro District** 5 **acquired by way of purchase from John Mareeba on 16th July 2000.**

#### **Issue 2**

#### **Whether the Plaintiff is the lawful owner of the suit land?**

The Plaintiff testified that he purchased the suit land from DW8 John Mareebe who was called by the Defendant to prove this very claim. All the other witnesses for the

10 Defendant acknowledged that the Plaintiff owned land at Mujebe. Exb. P.1 is a copy of the sale agreement to that effect. When court visited the locus in quo, the Plaintiff pointed out the land and none of the Defendant's witnesses disputed his evidence.

I am satisfied that the Plaintiff is the lawful owner of the suit land.

#### **Issue 3**

#### 15 **Whether the Defendant trespassed on the suit land?**

'*Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land.'*

20 Mulenga, JSC, in Justine E. M. N. Lutaaya V Stirling Civil Engineering Company Ltd Supreme Court Civil Appeal No.11 Of 2002

The trespass complained of by the Plaintiff was allegedly committed by Tushabe and Katarikawe, who were both Councillors of the Defendant. Paragraph 4(v) of the Plaint which makes reference to trespass, is silent on when and how the trespass occurred.

In his testimony before this court, under paragraph 10 of his evidence in chief, the Plaintiff stated that Katarikawe Valence and Tushabe and others, claiming to be acting on the instructions of the Defendant, cut down some trees on the suit land in 2012. I find that these specifics on date and nature of the trespass amounted to a departure in

5 the pleadings as contained in the Plaint.

Under paragraph 16 of his evidence in chief, the Plaintiff testified that Sam Nyonzima, the Defendant's Sub-county chief, took over the suit land and ordered porters to cut down the Plaintiff's trees valued at UGX 104,500,000/=. Again, this assertion was a departure from the pleadings. Sam Nyonzima is mentioned in the Plaint, under 10 paragraph 4(i). The complaint thereunder is that he forced the Plaintiff to surrender his original sale agreement in 2012.

Neither of the Plaintiff's witnesses, PW2, Columbus Stanley and PW3, Benon Rwamakuba, corroborated his evidence on the participation of Tushabe, Katarikawe and Nyonzima as trespassers on the suit land. In my view, the cutting of 1000 trees, as

- 15 claimed in the Plaint, is a labour intensive, time consuming and memorable event. If it had taken place illegally, there certainly would be a record of it. PW3 testified that the suit land is developed with trees such as eucalyptus and pine among others. He spoke in the present tense. Indeed, the Plaintiff pointed out the pine trees on the suit land when this court visited the locus in quo. - 20 I agree with Counsel for the Defendant that the evidence adduced by the Plaintiff fell short of proving on a balance of probabilities that the Defendant's employees trespassed on the suit land.

### **Issue 3**

## **Whether the Plaintiff was threatened/ coerced by the Defendant's Sub-county**

# 25 **chief Sam Nyonzima to sign a memorandum making him surrender the suit land to the Defendant?**

The Plaintiff testified under paragraph 11 to 13 of his evidence in chief that the Defendant's Sub-county chief confiscated his original sale agreement on grounds that he had forged it. Denying the assertion, DW7, Nteze Mpaka Herbert, testified that the Plaintiff surrendered the suit land under a voluntarily executed memorandum of 5 understanding made prior to his release from police custody. The document was retained by the police. DW7 admitted that he was not present when the MOU was made.

This court has not seen the memorandum of understanding. These events complained of took place in 2012. It is not clear why the Plaintiff waited 5 years to bring this case against the Defendant in 2017. Such passage of time did not favour the chances of

10 having cogent evidence to support one's claim. Threats, coercion and confiscation of property are potentially criminal offences. While the burden in civil matters is on a balance of probabilities, the Plaintiff is still expected to adduce evidence to prove that the acts complained of took place.

In my view, the Plaintiff has not discharged his duty to prove that the Defendant's

15 employee, Sam Nyonzima threatened and coerced him to relinquish his original sale of land agreement. This issue is resolved in the negative.

#### **Issue 4**

#### **Remedies**

The evidence adduced indicates that the Plaintiff is the lawful owner of the suit land. It 20 has also been established that the Government land at Ibambiro is not the property of the Plaintiff but belongs the Defendant. Since the Plaintiff has been unable to prove trespass against the Defendant, upon the suit land, he is not entitled to any other remedies. This suit has been only partially successful, therefore, each party shall bear their own costs.

#### 25 **I hereby order as follows;**

- 1. **The Plaintiff is the lawful owner of the suit land located at Mukungu village, Nyundo Parish, Nyundo Sub County, Kisoro District acquired by way of purchase from John Mareeba on 16th July 2000.** - 2. **The land at Ibambiro, Mukungu village, Nyundo Sub-county, Kisoro** 5 **District exclusively belongs to the Defendant.** - 3. **Each party shall bear their own costs.**

**-----------------------------------**

10 **Olive Kazaarwe Mukwaya**

**JUDGE**

**31st March 2021**

**Delivered by email to Counsel for the Parties.**