Mwesigwa v Balinda and 2 Others (HCT-01-CV-LD-CS 1 of 2017) [2024] UGHC 265 (29 April 2024)

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

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

#### **HCT-01-CV-LD-CS-001 OF 2017**

**MWESIGWA DAVID :::::::::::::::::::::::::::::::::::::: PLAINTIFF**

## **VERSUS**

### **1. BALINDA GERTRUDE**

**3. KASAIJA GEORGE**

**2. KIIZA ROSE ::::::::::::::::::::::::::::::::: DEFENDANTS**

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

#### **JUDGMENT**

### **Introduction**

The plaintiff filed this suit against the defendants seeking for a declaration that he is the owner of the suit land, an order for removal of the caveat on the suit land lodged by the defendants, a declaration that the defendants trespassed on the suit land, general damages and costs to the suit.

### **Brief Facts**

The plaintiff's claim against the defendants is that he is the owner of the suit land which he initially occupied as a *kibanja* holder or lawful occupant and later constructed commercial houses on it. In the year 2016, he purchased the reversionary interests on the same land from the landlord and was subsequently registered as the proprietor of the suit land. On the 9th of November 2016, the defendants, purporting to be the owners of the land, issued a notice to the tenants thereon,

notifying them of their ownership of the suit property. On the 13th of November 2016, the defendants convened a meeting with the tenants on the suit property and directed the tenants to commence paying rent to them. The defendants further lodged a caveat on the plaintiff's certificate of title which prompted the plaintiff to file this suit.

In the written statement of defence, the defendants denied all the plaintiff's claims and counter-claimed that the suit land is family property. They had appointed the plaintiff, who is their nephew, to manage the same for the benefit of all the family members. Further, the defendants counterclaimed that as a caretaker of the suit property, the plaintiff was mismanaging the same and that he fraudulently registered himself as the proprietor of the suit land. The defendants sought for the cancellation of the plaintiff's certificate of title for the suit land, general and special damages, interest, and costs of the suit.

### **Representation and hearing**

At the hearing, the plaintiff was represented by Mr. Enock Wahinda while the defendants were represented by Mr. Timothy Atuhaire. To prove their case, both the plaintiff and the defendants presented 3 witnesses, each. The hearing proceeded by way of witness statements. Counsel for the plaintiff filed written submissions which I have considered in this judgement.

#### **Issues for Determination**

In their joint scheduling memorandum, counsel for the parties agreed on the following issues, which have been slightly modified under Order 15 Rule 5 of the Civil Procedure Rules, for this court's determination:

- 1. Whether the plaintiff is the lawful owner of the suit land. - 2. Whether the defendants have any interest in the suit land. - 3. Whether the defendants committed acts of trespass on the suit land. - 4. 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 43).* 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 lawful owner of the suit land.**

The plaintiff who testified as PW1 stated that he initially occupied the suit land, as a lawful occupant, deriving interests from his grandmother, the late Jerulina Katutu. When his grandmother died, his aunt, Olive Rose Kabege, was appointed as the administratrix of the estate and allowed him to use the suit land. A copy of the letters of administration was admitted in evidence as Pexh 1. The plaintiff further testified that with the approval of the administratrix, he developed the suit land with permanent houses. In the year 2009, he purchased the reversionary interests in the suit land from the landlord. A copy of the sales agreement was tendered in evidence as Pexh 3. Upon completing the payment of the purchase price, a final sales agreement was made on the 23rd of February 2012. A copy of the sales agreement dated 23rd February 2012 was admitted in evidence as Pexh 5.

PW1 further testified that he was then registered as the proprietor of the suit land with the consent of the administratrix. A copy of the consent of the administratrix was admitted in evidence as Pexh 6 while a certificate of title for the suit land comprised in Block 69 plot 54 land at Lwengoma, Burahya was admitted in evidence as Pexh 7.

PW2, William Mufumu, told the court that he sold the reversionary interest of the suit land as the co-administrator of the estate of the late Nyangoma Joan Rusongoza who was the landlord of the suit land. The suit land was initially held by the plaintiff's grandmother, the late Katutu and upon her death, the plaintiff together with the administratrix of the estate of the late Katutu took over management of the suit land.

PW3, Olive Rose Kabege, who is the administratrix of the late Jerulina Katutu told the court that the suit land was initially held by the late Juerulina Katutu as a lawful occupant. Upon acquiring the letters of administration to the estate of the late Jerulina Katutu, she permitted the plaintiff to construct permanent houses on the suit land which houses are currently occupied by tenants. The plaintiff subsequently bought the reversionary interest in the suit land and was registered as the proprietor of the same.

The defendants, on the other hand, allege that the plaintiff committed acts of fraud during the conversion of the suit land from customary to freehold tenure.

The 1st defendant who testified as DW1, told the court the late Jerulina Katutu was the owner of the suit land having been gifted the same by her friend, the late Joan Nyangoma Rusongoza as titled land comprised in Burahya Block 69 plot 8. However, Joan Nyangoma Rusongoza died before transferring the certificate of title in the name of the late Jerulina Katutu.

PW1 further testified that the defendants' mother consented to the grant of letters of administration to the estate of the late Jerulina Katutu to their sister who testified as PW3. Upon the death of their mother, Peradosi Kasoomi, in the year 2004, the administratrix gave each of the defendants a room from where they started deriving rental income. The defendants, however, placed the suit property under the care of the plaintiff who has failed to account for the proceeds from the rental income. The plaintiff, out of dishonesty, got registered as the proprietor of the suit land to defeat the unregistered interests of the defendants.

The general rule under section 59 of the Registration of Titles Act is that a certificate of title is indefeasible and can't be impeached by reason or on account of any informality or irregularity in the application or the proceedings previous to the registration of the certificate. However, there are exceptions to this general rule especially when such a certificate is procured by fraud or illegality *(see: Sections 77 and 176(c) of the Registration of Titles Act Cap. 230* **and the case of** *TransRoad Uganda Ltd Vs. Commissioner Land Registration Civil Suit No 621 of 2017).*

In the instant case, the plaintiff has a certificate of title of the suit land which is comprised of Block 69 Plot 94, land at Lwengoma, Burahya which was admitted in evidence as Pexh 7. The defendants, on the other hand, claim that the suit land was donated to their late Aunt, Jerulina Katutu as a registered land comprised in Burahya Block 69 plot 8.

The question that this court must answer is whether the certificate of title of the plaintiff is impeachable due to fraud.

Quoting *Black's Law Dictionary 6th Edition, Page 660*, the Supreme Court in the case of *Frederick J. K. Zaabwe (supra*) gave an elaborate definition of fraud. That case underscores the fact that fraud is intricate and encompasses various forms. So, to speak, fraud entails intentional distortion of truth to induce reliance, leading to harm or loss. It includes misrepresentation through words, actions, misleading statements, or concealed information. Fraud encompasses any deceptive means employed to gain an unfair advantage over another. It differs from negligence as it is always intentional.

In the case of *David Sajjaaka Nalima v Rebecca Musoke SCCA No. 12 of 1985* Wambuzi, CJ (as he then was) quoting *Wainiha Saw Milling Co. Ltd Vs. Wainone Timber Co. Ltd. (1926) A. C 101* held thus:

> *"Fraud in these actions i.e. actions seeking to affect a registered title means actual fraud, dishonesty of some sort not what is called constructive fraud – an unfortunate expression and one very apt to mislead, but often used for want of a better term to denote transactions having consequences in equity similar those which flow from fraud."*

In the instant case, the plaintiff testified that he initially occupied the suit land as a lawful occupant deriving interest from her late grandmother, Jerulina Katutu, and that he later bought reversionary interests in the suit land from the landlord which subsequently enabled him to get registered as the owner of the suit land.

The defendants allege that the plaintiff acted fraudulently in procuring his registration on the suit land by uttering false documents to the Registrar of Titles. Unfortunately, they did not show this court which false documents that are alleged to have been uttered by the plaintiff.

In *Kampala Bottlers Ltd Vs. Damanico (U) Ltd SCCA No. 22/92,* Wambuzi C J (as he then was) held that *"fraud must be proved strictly, the burden being heavier than on a balance of probabilities generally applied in civil matters."*

However, in all cases, fraud is a conclusion of the law. This was emphasised by Oder, JSC (as he then was) in the case of *J. W. R. Kazzora Vs M. L. S. Rukuba SCCA No 13 of 1992* quoting the case of *B. E. A. Timber Co. v. Inder Singh Gill (1959) E. A. 463 at 469* when he held thus:

> *"Fraud, however, is a conclusion of law. If the facts alleged in the pleading are such as to create fraud, it is not necessary to allege the fraudulent intent. The acts alleged to be fraudulent must be set out, and then it should be stated that these acts were done fraudulently, but the acts fraudulent intent may be inferred."*

The defendants allege that the suit land was gifted to the late Jerulina Katutu as a titled land comprised in Burahya Block 69 plot 8. However, the defendants neither adduced a certificate of title to that effect nor any documents proving that the suit land was gifted to the late Jerulina Katutu as titled land. During cross-examination, all the defendants stated that they were not present during the time the suit land was gifted to the late Jerulina Katutu.

From the testimonies of all the defendants' witnesses and the evidence on record, the defendants have not discharged their burden to prove that the certificate of title in the name of the plaintiff was procured by fraud. Instead, there is cogent evidence to show that the plaintiff bought reversionary interests from the landlord by the agreement executed between the plaintiff and PW2, who is the co-administrator of the estate of the late Nyangoma Joan Rusongoza. There is also evidence that the administratrix of the estate of the estate of the late Jerulina Katutu consented to the registration of the plaintiff as the owner of the suit land.

It is therefore my finding that the defendants have not shown that the plaintiff uttered any false documents before the Registrar of Titles or gave any false information to be registered as the owner of the suit land. As such, on the balance of probabilities, it is my considered view that the defendants have not discharged their evidential burden to prove to this court that the plaintiff got registered as the proprietor of the suit land through fraud.

Be that as it may, from the testimony of PW1 and PW3, the late Jerulina Katutu had an equitable interest in the suit land as a lawful occupant. Although the plaintiff testified that he inherited those interests as the grant son, PW3, who is the administratrix of the estate of the late Jerulina Katutu, told the court that he permitted the plaintiff to use the suit land and during his time of using the suit land, the plaintiff constructed permanent houses on the same which are currently occupied by the tenants. During cross-examination, the plaintiff also stated that he used the suit land together with the administrator and that he would sometimes share the proceeds with the defendants. The plaintiff also told the court that by the time he bought the reversionary interests, other beneficiaries, especially, PW3, were benefiting from the suit property. DW1 also told the court that each of the defendants had a room on the suit property from which they corrected rent and had appointed the plaintiff to manage the property on their behalf.

From the foregoing, my conclusion is that the plaintiff used the suit land well knowing that it has equitable interests of the late Jerulina Katutu who was lawful occupant. The plaintiff did not show any proof that he inherited the late Jerulina Katutu's equitable interests in the suit land or that the same equitable interests on the suit land had been extinguished at the time he was registered as the owner of the same.

Therefore, in view of the foregoing, it is the finding of this court that the plaintiff is a lawfully registered proprietor of the suit land subject to the equitable interests of the late estate of the late Jerulina Katutu, who was a lawful occupant of the suit land.

## **Issue 2: Whether the defendants have any interest in the suit land.**

The defendants claim that the suit land is family property and they are the beneficiaries of the estate of the late Jerulina Katutu. Both the 1st and 2nd defendants testified they are nieces of the late Jerulina Katutu while the 3rd defendant is the nephew of the late Jerulina Katutu. The plaintiff did not adduce any evidence to the contrary. During crossexamination, the 3rd plaintiff who testified as DW3 told the court that he was benefiting from Paredesi (his late mother who was a sister to the late Jerulina Katutu)

It is also the defendants' testimony that their mother, Peredesi Kasoomi, lived with the late Jerulina Katutu, as sisters, with the former taking care of the latter. DW1 also testified to this court that when the late Jerulina Katutu perceived that their mother, Peredesi Kasoomi, was not being treated well in her marriage, she persuaded her to leave her husband and reside with her and that Jerulina Katutu cared for the defendant's mother, until her demise.

Also, as per Dexh 1, a petition for application of the letters of administration of the estate of the late Jerulina Katutu, the late Jerulina Katutu was survived by Olive Rose Kabege (niece), who subsequently became the administratrix of her estate, and Peredesi Kasoomi, as her sister.

The evidence that the mother of the defendants lived with the late Jerulina Katutu and later was taking care of the former, before her death, was not challenged by the plaintiff.

Section 27 of the Succession Act Cap 162, as amended, allows a dependent relative to benefit from the estate of the person who died intestate. Section 2(g) of the Act defines a dependant relative to include *"a parent, a brother or sister, I niece or nephew, a grandparent or grandchild who, on the date of the deceased's death, was wholly dependent on the deceased for the provision of the ordinary necessities of life suitable to a person of his or her station."*

Before the Succession Act was amended in 2022, the definition of a "dependent relative" as defined under section 2(g)(ii) included "whole or substantial dependence."

In the instant case, it is not contested that the 1st and 2nd defendants are nieces to the late Jerulina Katutu and that the 3rd defendant is her nephew.

Nonetheless, a person who claims to be a dependent relative of the deceased has the burden to prove that his or her dependence on the deceased was whole or substantial on the date of the deceased's death. In the case of *Piarasingh & Anor v Sukhveer Kaur (Administrator of the estate of the late Tarlochan Singh Jhass) Civil Suit No. 052 of 2012*, the court held thus:

> *"…it is not enough to be in the stated relationship with the deceased. The person claiming to be a dependant relative must, in addition, prove his or her dependence to the deceased wholly or substantially on the date of the deceased's death."*

During cross-examination, the 1st defendant told this court that at the time of the death of the late Jerulina Katutu, she was looking after herself and was living in her own home with her husband. The 2nd defendant equally told this court that at the time of the death of the late Jerulina Katutu, she had her own home and was taking care of herself. The 3rd defendant also told the court that at that time he was taking care of himself and his family.

In view of the foregoing, my conclusion is that none of the defendants adduced evidence to prove that they wholly or substantially depended on Jerulina Katutu for the provision of the ordinary necessities of life suitable to a person of their station, at the time of her death.

There is evidence, however, on the preponderance of probabilities, that the defendants' mother was a dependent relative to the late Jerulina Katutu.

In the circumstances, then, can the defendants claim the interest of their mother in the estate of late Jerulina Katutu when their mother died before she got her share in the estate? My answer to this is in negative because the succession law confers beneficial interest to a dependant relative in personam, and, as such, an interest of a dependant relative in the estate of the deceased is extinguished if that dependant relative dies before his or her share is passed on to him or her. In the instant case, there is no evidence adduced by the defendants to show that at the time their mother died, she had received her share from the estate of the late Jerulina Katutu, and it is that share that they are claiming.

Therefore, it is the finding of this court that the defendants are not dependant relatives of the late Jerulina Katutu and as such they are not beneficiaries of her estate.

If the beneficiaries are not recognized as beneficiaries of the late Jerulina Katutu, what interest, then, do they have in the suit land?

During cross-examination, PW3, who is the administratrix of the estate of the late Jerulina Katomi, told the court that *"Gertrude (the first defendant) and the rest had one room, each, correcting rent. Even Kabacumu (the mother of the plaintiff) had a room, including myself."*

PW3 went on to state that *"they (the defendants) have never complained of not getting rent. Each was collecting rent on their own. At the burial of Justine (the mother of the plaintiff), everyone was left with a personal room*."

Additionally, during cross-examination, the plaintiff stated that he used to share the proceeds of the rental income with the defendants. The plaintiff also told the court that by the time he bought the reversionary interests from the landlord, the other "beneficiaries" were benefiting from the land, especially PW3, the administratrix.

At locus, the defendant told the court that *"Everyone had a share in the main house. My share is the first door. The last two doors are for Kiiza and Kasaija (the 2nd and 3rd defendants, respectively). For the first time, my tenant was giving me 50,000/=. My tenant was a muganda…. At first, the plaintiff would give us money. Later I decided to pick it myself."*

The above testimonies, taken together, point to the fact that when the mother of the plaintiff died, the administratrix made an arrangement that each of the parties should have a room in the main house from which they could earn rental income and cater for their necessaries.

From the testimony of PW3 and DW1, the defendants were collecting rent from the rooms allocated to each of them, and both the administratrix and the plaintiff acquiesced to this arrangement. The plaintiff is thus estopped from denying the defendants to assert their claim.

The doctrine of estoppel or acquiescence, which requires proof of passive encouragement, has been used to find a claim for a person who is unable to rely on the normal rules concerning the creation, transfer or enforcement of an interest in land.

Quoting Lord Denning in *Crabb Vs. Arun District Council [1976] 1 Ch.*183, Hon Justice Stephen Mubiru in the case of *Ibaba Taratizo & others Vs. Tarakpe Faustina HC Civil Appeal NO. 004 of 2017* held thus:

> *"…the basis of this proprietary estoppel, as indeed of promissory estoppel, is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. It will prevent a person from insisting on his strict legal rights, whether arising under a contract, on his title deeds, or by statute, when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties"*

The learned Justice went on to state that:

*"This doctrine will operate where the claimant is under a unilateral misapprehension that he or she has acquired or will acquire rights in land where that misapprehension was encouraged by representations made by the legal owner or where the legal owner did not correct the claimant's misapprehension. It is an equitable remedy, which will operate to prevent the legal owner of property from asserting their strict legal rights in respect of that property when it would be inequitable to allow him to do so."* In the instant case, the plaintiff told the court that he was sharing the proceeds of the rental income from the main house with the defendants, especially the first defendant, who is the administratrix of the estate. The administratrix told the court that at the death of the mother of the plaintiff, each of them, including the defendants was left with a personal room from where they correct rent. The plaintiff's testimony and that of PW3, taken as a whole, points to the fact that both the plaintiff and the administratrix allowed the defendants to derive rental income from the main house on the suit property.

While the plaintiff asserts that he acquired the reversionary interest in the land in 2009, thereby extinguishing the equitable interests in the suit land, evidence suggests that during that period and onwards, he permitted both the administratrix and the defendants to continue receiving rental income from the main house at the same time believing that the suit land to be his.

In the premises, the plaintiff can not turn around and assert that the suit land and all developments thereon are his to the exclusion of the defendants. He is precluded from making that assertion by the doctrine of estoppel or acquiescence. And, as such, this court, being a court of equity, disapproves of such an assertion.

Henceforth, this court hereby decrees that each of the defendants shall rightfully claim one room in the main house on the suit land which existed before the demise of the late Jerulina Katutu.

## **Issue 3: Whether the defendants committed acts of trespass on the suit land.**

The plaintiff testified that on the 13th of November 2016, the defendants went to the suit land and held a meeting with his tenants without his consent which was an act of trespass. In their defence, the defendants testified that they held a meeting on the suit land with the defendants because they deemed the suit land to be family land which had been entrusted to the plaintiff as a caretaker and the plaintiff was not accounting for the rental proceeds.

In the case of *Sheikh Muhammed Lubowa Vs. Kitara Enterprise Ltd CACA No. 04 of 1987,* the court held that for a plaintiff to prove allegations of trespass, he must prove: (i) that the disputed land belonged to him, (ii) that the defendant had entered upon it, and (iii) that the entry was unlawful, in that, it was made without permission or that the defendants had no claim, right or interest in the disputed land.

In the instant case, I have already made a finding that each of the defendants has a room in the main house on the suit land which existed before the demise of the late Jerulina Katutu. The defendants claim that whereas the plaintiff was entrusted in managing their property, he was not accounting for the rental income derived from the same which prompted them to take over the property so that it could be sold so that each of them get a share.

Given that the defendants are entitled to one room, each, in the main house, it is my considered view that they were entitled to enter the suit property and meet the tenants who are staying in their respective rooms. I am cognizant of the fact that the defendants' interest in their respective rooms does not supersede that of late Jerulina Katutu who was a lawful occupant of the suit land.

However, given that the plaintiff is the registered owner of the suit land and he has put other developments on same, the defendants had no right to take over the entire suit land for purposes of selling it or let alone managing it.

Therefore, to the extent that the defendants have equitable interest in the suit land, as lawful occupants of the 3 rooms in the main house on the suit land, I deem their actions of meeting the tenants on the suit land on the 13th of November 2016 not to amount to trespass, however much their intentions, at the time, may not rooted in law.

## **Issue 4: What remedies are available to the parties?**

In the plaint, the plaintiff sought several remedies including a declaration that the suit land belongs to him, an order for removal of the caveat, a declaration that the defendants trespassed on the suit land, general damages for trespass and inconveniences caused, and costs of the suit. On the other hand, the defendants in their counterclaim sought for cancellation of the plaintiff's certificate of title, special damages, general damages, punitive damages, interest damages and costs of the counterclaim.

With regard to a declaration that the plaintiff is the owner of the suit land, this court has already made a finding that the plaintiff is the registered owner of the suit land subject to equitable interests of the estate of the late Jerulina Katutu.

On the prayer for the removal of the caveat lodged by the defendants, the plaintiff alleges that the defendants lodged a caveat on his certificate of title for the land in question without any legal basis.

In the case of *Davis Ndyomugabe Vs. Tile Word Ltd Msc. Application No. 650 of 2011,* the court held that although a bonafide occupant or Kibanja owner has an interest in land, which can rightfully be protected by the lodgment of caveat, such a caveat is bad in law if it does not cover the whole but only a part of the land *(See: Boyes vs Gathure [1969] E. A. 385).* This is so because the entry of the caveat prohibits dealing with property or land over which no claim is made yet land is a factor of production and overall economic development.

Therefore, given that the defendants are lawful occupants of the 3 rooms on the main house which is but a a portion of the suit land, the caveat so lodged by the defendants on the plaintiff's certificate of tile is bad in law and there is no reason why it should stay. The Registrar of Titles shall vacate the caveat lodged by the defendants on the plaintiff's certificate of title.

On the prayer of general damages, It is trite law that general damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering *(Peter v. Spear Motors Ltd SCCA No. 00f of 19991).*

General damages are guided mainly inter alia by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach. In the case of *Katakanya & Others vs. Raphael Bikongoro HCCA No. 12 of 2010*, the court held that *"General damages need not be specifically pleased, particularised or proved" because the law presumes them to be the direct natural or probable consequences of the act or omission complained of."*

In the instant case, the plaintiff's claim for general damages is based on the acts of trespass by the defendants. On the part of the defendants, their counterclaim for general damages is based on allegations of fraud and failure to account for proceeds of the rental derived from suit property.

This court has already made a finding that the acts of the defendants did not amount to trespass. Therefore a claim for general damages based on the same must fail.

Equally, this court has not adjudged the plaintiff to have been fraudulent in procuring his registration as the owner of the suit land. Also, the defendants did not demonstrate to this court how the plaintiff misappropriated the proceeds of the rental income from their respective rooms. In any case, there is evidence that the plaintiff has made significant improvements on the main house in which the defendants have rooms. Therefore, no order shall be made for either party as to general damages.

In their counterclaim, the defendants sought for special damages. However, it is trite law that special damages may only be awarded if they have been specifically pleaded and strictly proved by the plaintiff *(see: Uganda Commercial Bank Vs. Deo Kigozi [2002] l EA 293; and Masaka Municipal Council Vs. Takaya Frank CACA No 173 of 2015).* In the instant case, defendants/counterclaimants neither specifically pleaded nor strictly proved the nature and the amount of special damages to which they are entitled. Therefore, I make no order for special damages.

On the prayer of exemplary damages, it is trite law that exemplary damages, also known as punitive damages, serve a distinct purpose within the judicial system. These damages are not intended to compensate the plaintiff for their loss or injury but rather to punish the defendant for egregious behaviour and deter similar misconduct in the future. *(see: Ahmed El Termewy Vs. Hassan Awdi & others HCCs No. 95 of 2012).* In the instant case, the defendants/counterclaimants did not demonstrate to this court which injury they suffered or how egregious the plaintiff's behaviour has been towards them. I shall, therefore, not make any order as to exemplary damages.

On the prayer of costs, section 27(2) of the Civil Procedure Act is to the effect that the costs of, and incident to, all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purposes aforesaid. It is also a trite law that costs follow the event, and a successful party is entitled to costs.

In the case of *Kivumbi Paul Vs. Namugenyi Zulah Civil Revision No. 10 of 2014*, Hon Lady Justice Elizabeth Musoke (as she then was) citing *Kiska Ltd Vs De Angelias [1969] EA 6*, noted that *"a successful party can only be deprived of his costs when it is shown that his conduct either prior to or during the course of the suit has led to litigation, which, but for his own conduct might have been averted."*

Nonetheless, this court is mandated to promote reconciliation between parties as per Article 126 of the 1995 Constitution of the Republic of Uganda. In the instant case, I take note of the fact that the parties are family members since the plaintiff is a nephew to the defendants, and each party has partly succeded. Therefore, in the spirit of promoting reconciliation between the parties, each party shall bear its own costs of the suit.

Consequently, Judgment is hereby entered in the following terms:

- a) A declaration that the plaintiff is the registered owner of the suit land, comprised in Block 69 Plot 94, land at Lwengoma, Burahya, subject to the equitable interests of the estate of the late Jerulina Katutu. - b) A declaration that each of the defendants is entitled to one room in the main house on the suit land which existed before the death of the late Jerulina Katutu. - c) An order is hereby issued to the Registrar of Titles to vacate the caveat lodged by the defendants on the plaintiff's certificate of title. - d) Each party shall bear its own costs of this suit.

It is so ordered.

Dated at Fort Portal this 29th day of April 2024.

**Vincent Emmy Mugabo Judge**