Mutazindwa & 3 Others v Mushana (Civil Suit 78 of 2019) [2024] UGHCLD 151 (31 May 2024)

# **THE REPUBLIC OF UGANDA**

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

## **(LAND DIVISION)**

#### **CIVIL SUIT NO.0078 OF 2019**

# **1. DEO MUTAZINDWA**

- **2. SITUMA WOTSUNA PAUL** - **3. RUTH MUTAZINDWA** - **4. WOTSUNA AGNES ::::::::::::::::::::::::::::::::::: PLAINTIFFS**

## **VERSUS**

**MUSHANA JULIUS ::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

#### *Introduction;*

- 1. Deo Mutazindwa, Situma Wotsuna Paul, Ruth Mutazindwa and Wotsuna Agnes hereinafter referred to as the plaintiffs instituted this suit against Mushana Julius hereinafter referred to as the defendant for the following: - a) A declaration that the defendant trespassed on the suit land comprised in Kyadondo Block 213 Plot 28.

- b) An order for vacant possession. - c) Permanent injunction restraining the defendant from further acts of trespass onto the plaintiffs' land. - d) General damages - e) Interest at 25% from the date of filing this suit until full payment. - f) Costs of the suit.

#### *Background;*

- 2. The plaintiffs are registered proprietors of land comprised in Kyadondo Block 213 Plot 28 hereinafter referred to as the suit land. The defendant acquired portions of the suit land from John Lukeke, Nalongo Katana, Sarah Walugembe and Mohammad Kagezi. At the time the defendant acquired the portions of the suit land, the plaintiffs were not the registered proprietors but rather Damali Namusoke who later transferred to the plaintiffs. That sometime in 2011, the defendant poured murrram on the suit land claiming to have interest in the suit land as a Kibanja holder. - 3. The defendant occupies the said portions of the suit land and erected developments thereon including a washing bay/Parking

yard. The plaintiffs claim the defendant is a trespasser on the suit land and it is against this background that the plaintiffs filed this suit.

- 4. The defendant denied the plaintiffs' claim. The defendant contended that he has been in quiet possession thereof since 2009. That at the time of acquisition of the bibanja interests, the plaintiffs were not the registered proprietors of the suit land. The plaintiffs have never occupied the portion currently utilized by the defendant. The defendant contended that he is a Kibanja holder and his activities on the suit land are lawful. - 5. At the trial the plaintiffs led evidence of two witnesses that is: Situma Watson Paul (PW1) and Deo Mutazindwa (PW2). - 6. The defendant led evidence of one witness that is Julius Mushana (DW1) - 7. Court visited locus on the 28th day of February 2024 in the presence of Counsel for the plaintiffs and Counsel for the defendant. The defendant and the plaintiffs were also present.

#### **Agreed issues**

*1. Whether the defendant is a trespasser on the plaintiffs' land comprised in Kyadondo Block 213 Plot 28 at Bukoto? 2. Whether the plaintiffs are entitled to the remedies sought?*

#### **Representation**

8. The plaintiffs were represented by Counsel Nuwagaba Gilbert of KGN Advocates while the defendant was represented by Counsel Kakande Edward of F. Aogon & Co Advocates.

#### *Resolution and determination of the issues;*

# **Issue 1: Whether the defendant is a trespasser on the plaintiffs' land comprised in Kyadondo Block 213 Plot 28 at Bukoto?**

- 9. Counsel for the plaintiffs submitted that in the year 2012, the plaintiffs jointly purchased the suit land and were registered on the title on the 8th day of October 2012. That it is agreed as a fact that the defendant purchased portions of the said land from Nalongo Katana, Sarah Walugembe, Lukeke John and Mohammad Magezi. - 10. Counsel for the plaintiffs also submitted that the defendant's trespass onto the land is based on the illegal acquisition of

portions on their land and proceeding to occupy the same without first obtaining the written consent of the land owners. Counsel relied on Section 34 (1) of the Land Act Cap 227 for the proposition that a tenant by occupancy may in accordance with the provisions of this section, assign, and sublet or subdivide the tenancy with the consent of the Land Owner.

11. That under Section 34 (9) of the Land Act no transaction to which this section applies shall be valid to pass any interest in land if it is undertaken without consent. Counsel relied on **David Byatike Matovu (Adminstrator of the Estate of the Late Nalunga Ndagire) v Richard Kikonyogo Civil Appeal No.3 of**

**2014**.

12. Counsel also added that entry on land by a purchaser of a Kibanja without consent of the registered proprietor/ land owner constitutes trespass. Counsel relied on **Steven Mulerangabo v**

#### **Esther Allen Natocho & Others HCCA No. 0079 of 2012.**

13. Counsel for the plaintiffs also submitted that the defendant during his own cross examination stated that at the time he purchased the bibanja interest, he made no attempts and indeed did not obtain the consent of the registered land owner. That it

was also his admission that it was not necessary to obtain the said consent.

- 14. That the plaintiffs having obtained a transfer form from Damalie Namusoke the former registered proprietor, all rights, powers and privileges accrued to the transferees. It then did not matter whether the defendant acquired the bibanja before the plaintiffs were registered as proprietors as they acquired all such rights that the former registered proprietor had. Counsel relied on Section 92 (2) of the Registration of titles Act. - 15. Counsel added that the defendant having failed to obtain consent, the plaintiffs were within their rights to have the defendant declared as trespasser as he came onto the land without their consent or that of their predecessor. That the defendant is therefore not a lawful occupant within the meaning of Section 29 (1) (b) of the Land Act as he did not purchase with the consent of the land owner. - 16. That on the authority of **Justin EMN Lutaaya v Stirling Civil Engineering Co Ltd**, the defendant is a trespasser on the plaintiff's land.

- 17. Counsel prayed for court to find the defendant as a trespasser and also prayed for various remedies as stated in the plaint. - 18. In reply, Counsel for the defendant submitted that trespass to land occurs when a person directly enters upon another's land without permission and remains upon the land, places or projects any object upon the land. Counsel relied on **Adrabo Stanley v Madira Jimmy HCCS No 0024 of 2013.** - 19. Counsel stated that at the time the defendant purchased his Kibanja on the suit property, the plaintiffs were not the registered proprietors of the suit land and the then landlord Damali Namusoke did not contest the existence of the defendant and the same applies to a one Kamanya Henry who too acknowledged the existence of the defendant on the land as a Kibanja holder. - 20. Counsel for the defendant maintained that from the testimony of the defendant, it is very clear that the plaintiffs are and were aware of his existence on the suit land as a Kibanja holder. That PW1 and PW2 confirmed and admitted in court that the defendant is a Kibanja Holder on their land. - 21. Counsel also submitted that the plaintiffs misapplied the provisions of Section 34 of the Land Act to claim that the defendant

illegally acquired a Kibanja on the suit land without obtaining the landlord's consent.

- 22. That the above section puts the onus on the tenant by occupancy who in the circumstances of this case are the former Bibanja holders to obtain consent not the defendant. That the law calls for consent when the tenant by occupancy wants to assign, subdivide or sublet and not when he or she wants to sell his Kibanja. - 23. That the fact that the defendant stated in court that he did not find it necessary to obtain consent from the former Landlord who was the registered proprietor at the time he purchased all his bibanjas does not invalidate or hold his purchase null and void since the onus was not on him to seek the consent and that the former landlord was not brought before court to deny his occupancy. He also added that the consent is optional as per the law. - 24. Counsel for the defendant added that the plaintiffs in the first place acquired equitable interests in the suit land from Lukeke John just like the defendant, making the plaintiffs and defendant bibanja holders. That the mere fact that the plaintiffs later

obtained a legal interest, does not imply that the defendant's equitable rights in the suit property ceased nor does it render him a trespasser. Counsel relied on Section 35(8) of the Land Act Cap 227 as Amended.

- 25. Counsel further submitted that a mailo land owner under section 3(4) of the Land At Cap 227 holds land subject to the rights of lawful or bonafide occupants and the change in ownership of the title does not affect the Kibanja holder under Section 35(8) of the Land Act who enjoys security of occupancy. Counsel relied on the decision in **Nalubega Edisa and Anor v Kivumbi David and** - **3 Others Civil Suit No. HCT- 00- LD- CS- 0176- 2019**. - 26. That the plaintiffs' claim in trespass as landlords is in contravention of the law and are violating the defendant's constitutional right to own Kibanja enshrined under Article 237 (8) of the Constitution of the Republic of Uganda, 1995 as Amended and under Section 31(1) of the Land Act Cap 227 as Amended. - 27. Counsel prayed that the defendant be declared the lawful Kibanja holder on the suit land with the right to enjoy his Kibanja,

that the plaintiffs have no right to interfere with his quiet enjoyment of the same and that the suit be dismissed with costs.

- 28. In rejoinder, counsel for the plaintiff submitted that the defendant set out the law on trespass but sadly failed to apply the trespass to the fact that the defendant admittedly acquired his Kibanja interest from Kagezi, Lukeke John, Walugembe Sarah and Katana Halima without obtaining consent. Counsel maintained that the consent is mandatory and that the provisions of Section 34 extend to the transferee of the Kibanja interest. Counsel relied on **David Byatike Matovu (supra)** and **Steven Mulerangabo (supra).** - 29. Counsel for the plaintiff also remarked that the term Section 34(1) deals with transactions in land held inter alia by a tenant by occupancy such as a Kibanja. Counsel relied on **Ponsiano Katamba v Cotilda Nakirijja CA No. 169 of 2017**.

## *Analysis*

30. According to the Supreme Court in **Justine E. M. N Lutaaya v Stirling Civil Engineering Co. SCCA No 11 of 2002** trespass to land occurs "when a person makes an authorized entry upon land,

and thereby interfering, or portends to interfere with another person's possession of that land.

- 31. In order to succeed in an action of trespass, the Court of Appeal in **Sheikh Muhammad Lubowa v Kitara Enterprises Ltd CA No. 4 of 1987** observed that one must prove: - *a) That the disputed land belonged to the plaintiff* - *b) That the defendant had entered upon it, and* - *c) That entry was unlawful in that it was made without permission or that the defendant had no claim or right or interest in the disputed land.* - *32.* In the instant case, it is not in contention that the plaintiffs are the registered proprietors of land comprised in Kyadondo Block 213 Pot 28 situate at Bukoto Nakawa Division, Kampala. The certificate of title was tendered in evidence as P. EXH1. - *33.* It is also not in contention that the defendant purchased and occupies portions of the said land from a one Nalongo Katana, Sarah Walugembe, Lukeke John and Muhammad Magezi. The agreements were tendered in evidence as D. EXH1, 2, 3 and 4. The locus visit established that the defendant is in occupation of the said portions.

- *34.* The plaintiffs' case as I understand it to be is that the defendant is a trespasser on the suit property for having acquired his bibanja interests without the consent of the current registered proprietors or their predecessor in title. - *35.* The law is that he who alleges the existence of certain facts must prove so. (See Section 101 of the Evidence Act). The standard of proof in civil cases is on the balance of probabilities. *(See; Nsubuga v Kavuma [1978] HCB 307.)* - *36.* It is now a settled position of the law that an agreement purporting to sell and transfer a Kibanja holding is not sufficient proof of acquisition of a lawful Kibanja holding in the absence of proof of essential facts that would constitute creation of the Kibanja holding, namely consent of the mailo owner**.** *(See; Muluta*

## *Joseph v Katama Sylvano S. C Civil Appeal No 11 of 1999).*

*37.* In addition, a person does not acquire interest as a Kibanja holder merely because he or she has been referred to as such in isolation of the provisions of the law. In Tifu Lukwago v Samwiri Mudde Kizza and Another, SC Civil Appeal No. 13 of 1996, the procedure for obtaining consent from the landlord was stated as follows:*"Whenever, a kibanja is sold, the seller introduces the*

*buyer to the owner of the Mailo land on which the Kibanja is. If the owner has an agent who looks after that land the buyer is introduced to that agent who in turn introduces him to the owner. In either case, the buyer upon so being introduced gives to the Mailo land owner or to the agent as the case may be, a gift called a kanzu, Thereupon the buyer is recognized by the owner as the new Kibanja holder."*

- 38. During cross examination, when DW1 the defendant was asked "Is it right to buy land without going to the then landlord?" he responded that "I don't know if it is true but me I bought the Kibanja". He added that "it was not necessary to obtain the consent" - 39. In defense, counsel for the defendant submitted that under Section 34 (1) the onus is actually on the tenant by occupancy who in the circumstances of the case are the former Bibanja holders to obtain consent not the defendant. I acknowledge the fact that section reads *"A tenant by occupancy……….."* without making specific reference to a transferee or assignee of the interest however I respectfully disagree with Counsel for the defendant's

interpretation of the import of the section in line with decided cases.

- 40. In **David Byatike Matovu (Administrator of the Estate of the Late Ndagire) v Richard Kikonyogo Civil Appeal No 3 of 2014**, my learned brother Hon Justice Wilson Kwesiga observed as follows: *"Under cross-examination, the plaintiff/respondent showed that he knew the kibanja is an interest on registered land and there must be a landlord for the kibanja owner. He had a duty to take the essential step of obtaining the consent of the registered proprietor and there is no proof that he took this diligent prerequisite to purchasing the kibanja and therefore the transaction between him and his purported seller offended the provisions of Section 34(3) of the Land Act and the transaction did not transfer Kibanja Holding"* - 41. To further elaborate on the decisions in the case of **David Byatike Matovu (Supra)** and **Tifu Lukwago case** (Supra), it is my interpretation that the essence of the decisions underscores the necessity for the involvement of the transferee or any individual acquiring interest, subject to the consent of the landlord, in the process of obtaining the said consent. Specifically, they must

possess a thorough understanding of the circumstances surrounding the consent's acquisition and be capable of articulating these details through testimony to substantiate its validity.

- 42. Failure to possess adequate knowledge regarding the circumstances surrounding the acquisition of the consent may potentially cast doubt on its legitimacy and easily lead to a conclusion that it was never obtained. - 43. In the instant case, I find that the defendant did not display adequate knowledge of the circumstances surrounding the acquisition of the consent when he stated that he did not find it necessary to acquire the consent and that he doesn't know if it is true that you should see the landlord before your purchase the Kibanja interest. This suggests that he actually never met the landlord at any single point in time for the consent. - 44. Again, in defense, it was submitted that that the law calls for consent when the tenant by occupancy wants to assign, sublet or sub-divide the tenancy and not when he or she want to sell his Kibanja.

- 45. In my opinion and with due respect to Counsel for the defendant, I don't find merit in the argument that the provisions of Section 34 of the Land Act do not apply to a sale. I believe an assignment could involve the transfer of ownership or control of property which could amount to a sale. But also, in **Ponsiano Katamba v Cotilda Nakirijja Civil Appeal No 169 of 2017** it was observed that the section deals with transactions in land held by a tenant by occupancy which includes selling. - 46. It was also submitted in defense that the section is not couched in mandatory terms. That one may seek the consent or not and in simple terms, the same would not necessarily invalidate a transaction made by a tenant in occupancy. - 47. I do not agree with counsel for the defendant that the consent from the landlord is not mandatory. In **David Byatike Matovu (Supra)** it was held that in selling/purchasing of a Kibanja on titled land, the consent of the landlord is mandatory. - 48. Furthermore, it was submitted in defense that at the time the defendant purchased his Kibanja interest on the suit land, the plaintiffs were not the registered proprietors of the suit land and the then landlord Damali Namusoke and Kamanya did not contest

the existence of the defendant's Kibanja. However, the said acknowledgments are not substantiated. Be that as it may, I agree with Counsel for the plaintiffs that **Section 92(2) of the Registration of Titles Act** operates to pass all such rights, powers and privileges belonging to the transferor (Damali Namusoke) to the transferee (the plaintiffs).

- 49. Again, it was submitted for the defendant that the plaintiffs were at all times aware of the defendant's existence on the suit land as a Kibanja holder. The defendant cited among others the complaint to the President's office (D. EXH 7), complaint to the Assistant Town Clerk D. EXH8, Complaint to the RCC D. EXH 9 and minutes D. EXH5 where the defendant was referred to as a Kibanja holder. - 50. As I have noted earlier, one is not clothed with a Kibanja interest merely because he's referred to as such by the public or a section of the public in absence of proof of essential facts that would constitute creation of the Kibanja interest. **(See Owembabazi Enid v Guaranty Trust Bank Limited and Others Civil Suit N0. 0063 of 2019)**

- 51. I have not found any evidence to establish that the plaintiffs are estopped from denying the interest of the defendant or acquiesced in his occupation on the land not as a trespasser but as Kibanja Holder. In fact, PW2 when asked in cross examination when the wrangles started, he stated that **"it was in 2011 when the defendant poured murram on our land".** The plaintiffs since then have contested his interest in the land and attempts were made to settle the dispute as well. - 52. The defendant invoked the provisions of **Section 35(8) of the Land Act** as Amended that a change of ownership of title effected by the owner by sale, grant and succession or otherwise shall not in any way affect the existing lawful occupants or bonafide occupant and the new owner shall be obliged to respect the existing interests. While it is true that a transferee is bound by the earlier interests in the land prior to the purchase, such interests must be genuine interests and not illegitimate. - 53. Section 34(9) of the Land Act provides thereof that No transaction to which this section applies shall be valid and effective to pass any interest in land if it is undertaken without consent as provided for in this section.

*54.* The defendant having bought his interests without the consent of the landlord contrary to section 34(1), the plaintiffs were not bound by his interests as a Kibanja holder since no interest had vested in him at law. (See Section 34(9) of the Land Act). In my view, the defendant then was nothing but a trespasser on the suit land. *(See; Steven Mulereangabo v Esther Allen Natocho HCCA No. 0079of 2012)*

# **Issue 2: Whether the plaintiffs are entitled to the remedies sought?**

55. The plaintiffs sought the following remedies from court;

- a) A declaration that the defendant trespassed on the suit land comprised in Kyadondo Block 213 Plot 28 - b) An order for vacant possession - c) A permanent injunction restraining the defendant from further acts of trespass in the plaintiffs' land. - d) General damages. - e) Interest as well as costs. - 56. Having determined the first issue in the affirmative, I find and declare that the defendant is a trespasser on land comprised in

Kyadondo Block 213 Plot 28 and in the result, I grant the plaintiffs vacant possession of the suit-land.

57. In addition, I hereby grant a permanent injunction restraining the defendant and any person claiming under him from dealing with the suit land.

#### *General damages*

- 58. In **Charles Acire v Myaana Engola HCCS No 143 of 1993** it was held that: *"A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if he or she had not suffered the wrong"* - 59. In **Halsbury's Laws of England 4th Ed, Vol 45 (2) (London: Butterworth's 199 at paragraph 526** the law on damages for trespass is stated as follows: *"In a claim for trespass, if the claimant proves trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the claimant actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the*

*claimant's land, the claimant is entitled to receive by way of damages such a sum as should reasonably be paid for that use... …Where the defendant cynically disregards the rights of the claimant in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased."*

- *60.* The defendant's conduct is thus key to the amount of the general damages awarded. If the trespass was accidental or inadvertent, damages lower. If the trespass was willful, damages are greater. And if the trespass was in between i.e. the result of the defendant's negligence or indifference, then the damages are in-between as well. *(See; Adrabo v Madira (Civil Suit No. 0024 of 2013)* - 61. I have considered the fact that the defendant had arrangements in form of sale agreements with the previous occupants. It cannot then be overlooked that the defendant indeed spent money when acquiring the property. It is also not contested that the defendant has developments on the land.

- 62. However, I also need to emphasize that the plaintiffs' rights were violated by the defendant. The defendant was also given an opportunity to regularize his occupation but deliberately refused **(PEXH.5)**. The defendant also by testimony of PW1 poured 10 trucks of murram thereby blocking the drainage whenever it rained. It is not in contention that the defendant has been utilizing the land as a parking yard and also collecting rent from the houses thereon. This was the state of affairs at least from 2011. Counsel for the plaintiffs prayed to court to award Shs. 100,000,000 as damages. - 63. I have taken into consideration the value of the land, the conduct of the defendant and for all these I award general damages of **Shs. 40,000,000/= (Forty million Uganda Shillings only)** at an interest rate of 10% per annum from the date of judgment until payment in full. - 64. The plaintiffs are also granted costs of the main suit. - 65. In the premises, judgment is entered for the plaintiffs with the following orders; - a) A declaration that the defendant is a trespasser on land Comprised in Block 213 Plot 28 land at Bukoto.

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- b) The defendant is hereby ordered to vacate the suit property and give vacant possession to the plaintiffs within 3 months from the date of this judgment. - c) An order of a permanent injunction is hereby issued restraining the defendant, his agents and servants from further acts of trespass. - d) The plaintiffs are awarded general damages in the sum of Shs. 40,000,000/= payable by the defendant. The said sum shall carry an interest at 10% per annum from the date of judgment till payment in full. - e) The plaintiffs are awarded costs of the suit.

# **I SO ORDER.**

**…………………………..**

# **NALUZZE AISHA BATALA**

# **JUDGE**

### **31st/05/2024**