Nakalema v Kiyaga (Civil Suit 865 of 2018) [2018] UGHCLD 88 (23 October 2018)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN IHE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DTVISION)

## CIVIL SUIT NO.865 OF 2018.

NAKALEMA AISHA PLAINTIFF

#### VERSUS

KIYAGA DANIEL :: :::::::::::::: ::DEFENDANTS

# BEFORE: HON. MR. JUSTICE TADEO ASIIMWE

### JUDGMENT

### BACKGROUND:

The plaintiffs claim against the defendant is fbr a declaration of ownership of the suit land and the developments there on measuring approximately 40x30ft forming part of her late husband estate, issuance of a permanent injunction restraining the defendant from further collection of rent from the commercial structure on the suit property and

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transferring the same, special damages, general damages, interest, mesne profits and cost of the suit land.

The facts arising out of the plaintiff s fact are that the plaintiff s late husband a one Ali Bukenya before his demise bought the suit land from fredi kayembain 1977.

That after the death of her husband, the plaintiff got in dire need of money which forced her to let out the development to wit a commercial house there on to the late Kizito Stephen father to the defendant in 2008.

The defendants father died and the defendants paid rent for a few months and abandoned rent obligations. That the plaintiff then approached the persons occupying the commercial structure and they were refered to the defendant as the land lord.

That the plaintiff approached the defendant to avail money she has been collecting in form of rent to no avail and that the defendants only responded with a notice of intention to sue from his lawyers.

on the other hand, the \ defendant denied the allegations of the plaintiff and stated that he is the son of the late Kizito Stephen who died on in 2014 and had obtained a lease on the suit land from the plaintiff for a period of 5 years.

That the late Kizito Stephen constructed a building on the suit land which he rented out to tenants. That shortly before his death, Kizito had purchased the mailo interest of the suit land from Juliana N Ndibalekera

who was the heir of the registered proprietor of the suit land. That by then kizito had paid all rent for that period.

The following issues were agreed on by the parties in a joint scheduling memorandum dated I 8107 /2022

l Whether the suit land and the developments there on form part of the estate of the late Ali Bukenya.

2. Whether the plaintiff is entitled to recover monies collected from tenants by the defendant since 2016.

3. What remedies are available to the parties.

At trial the plaintiffs were represented by Counsel Kamarabe John while counsel Musoke Aidah represented the defendant.

At the conclusion of the trial, both Counsel for filed written submissions which I will consider in this Judgement.

# THE LAW

The general rule is that he or she who asserts must prove and the burden of proof therefore rests on the person who must fail if no evidence at all is given on either side. The standard of proof required to be met by either party seeking to discharge the legal burden of proof is on a balance of probabilities.

stated: In Miller V Minister of Pensions 1194712 ALL E x-372 Lord Denning

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"That the degree is well settled. It must carry a reasonable degree of probability but not too high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it more probqble than not, the burden of proof is discharged but if the probabilities are equal, it is not. "

It is also the position of the Law that the evidential burden does not shift to the defendant unless there is cogent and credible evidence produced on the issue for determination.

In a bid to proof their case, the plaintiffs led evidence of 3 witnesses while the defendant called 3 witnesses.

PWl, Namatovu Hadijja in her witness statement stated that she is a daughter of the late Bukenya Ali who was married to the plaintiff and died in 2001. That the said Bukenya Ali purchased two plots along Gayaza Road in 1975 and 1977 respectively. That after purchasing the said plots, her father commenced the process of obtaining a certificate of title and the said land had been put on a blue print and deed plan and issued. That the said plots came up to be plots 688 and 689. That her father was in possession ofthe suit land until he passed on. That before he passed on he had rented the suit land to the defendant's father a one Kizito Moses. That at the time the suit land was rented out to the defendant's father, the suit was already in occupation of the tenants of the plaintiff and it was agreed that the tenants vacate the land. That following the death of the late Kizito

in 2014 and expiry of the lease, the plaintiff and her children executed another tenancy agreement with the defendant and his brothers for 7 years. That during the existence of renewed tenancy, the defendants stopped paying rent to the plaintiff and started claiming ownership of the suit land for his father. That the plaintiff then approached the occupants of the land occupying a commercial structure in the suit land for the purposes of rent collection in vain for reasons that the same belong to the defendant. That the plaintiffthen approached the defendant who assured her in a notice of intention to sue that the suit land belonged to his late father.

In cross-examination, she confirmed that she witnessed the sale transaction of the suit land to his father but never signed on the agreement. She also confirmed that she knows that the suit land was registered land in the names of Tekera Najjemba and that by that the time her father died he was in the process of registering the suit land in his names by the help of the seller Namukwaya who was a daughter of the registered proprietor and Kayemba had acquired the land from Tekera. She confirmed that her father bought two portions and that the dispute is only on one plot bought from Fred Kayemba which is plot 689. She further stated that her father tried to process the title in 1977 but does not know when Tekera died while her father died in 2001. That buildings were constructed on the suit land from 1978 to 1979. That the said buildings are not existing to date since they were destroyed by the motor vehicle belonging to KCCA. That however the suit land is currently occupied by buildings constructed by

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Moses Kizito the defendant's father after he obtained a lease of 5 (five) years from the plaintiff. That in 2008, the land owner was Aisha the plaintiff although she did not have title.

PW2 Namukwaya Babirye stated in her witness statement that she is known to the facts pertaining to the suit land and that the late Ali Bukenya initially purchased a piece of land opposite the suit land from Kayi Emanuel and constructed a house which still exists. That he later bought the suit land from Kayimba Fred. That the late Ali Bukenya later constructed a structure on the suit land that stands to date and used to collect rent from it. That she did not know about the lease arrangements with the defendant's father and did not even know that the defendant's father had any claims of ownership of the suit land.

In cross-examination PW2 confirmed to this Court that she doesn't remember the year Ali Bukenya bought the suit land but was a witness to purchase agreement. That Ali Bukenya house was destroyed by KCCA and that currently there is a building whose owner she doesn't know.

In re-examination she confirmed that she was present when Kayemba was selling the land to Ali Bukenya and that Kayemba had acquired the same land from Tekera.

PW3 Nakalema Aisha stated that she is the only widow of the late Ali Bukenya rvho passed away in 2001. That before her husband died, he owned the suit land which he had acquired in 1977. That upon purchase of the land, her late husband commenced the process of processing a certificate of title for the suit land and a print was issued to him with plot 689. That her husband constructed a commercial building on the suit land which is generating income for her late family. That the defendant's father was one of the tenants on the suit land and died after his 5 (five) years of tenancy had ended but was approached by the same family the re-rent the same structure to them. That after some time, the defendant refused to pay his rent obligation and instead claimed ownership to the suit property and continued to collect rent from the occupants of the suit property.

In cross-examination confirmed that she knew the suit land had a title and that the process to put the title in Ali Bukenya's name was started' That PE2 shows the exact plot her husband purchased as plot 689 which was in the names of Tekera. That Tekera had sold the suit land to Kayemba who in return sold it to Ali Bukenya. She further stated that she doesn't know when Kayemba purchased the suit land but begun construction on the suit land in 1980. That the shops she had constructed were destroyed by KCCA although she was never compensated. That the building on the suit land was constructed by Stephen Kizito, the defendant's father after obtaining a lease.

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DWl, Kiyaga Daniel in his witness statement stated that he is one of the children and beneficiaries of the late Stephen Kizito who died intestate in 2014. That. in 2008. That his father identified land comprised on block 207 plot 688 in Mpererwe to establish rental shops. That the plaintiff misrepresented the late Stephen Kizito to be the legal owner of the suit property and executed a tenancy agreement with the plaintiff. That upon taking possession of the suit land, the said Stephen Kizito was stopped by the agents of the office of the Namasole JN Ndibalekera who claims that the land was not owned by the plaintiff s husband but rather the office of the Namasole JN Ndibalekera. That the late Stephen Kizito subsequently carried out investigations to ascertain the ownership of the suit land comprised on block 207 plot 688 and discovered that the land is actually owned by Namasole Tekera Najemba Wagwesubi. That the late Stephen Kizito approached the office of the Namasole JN Ndibalekera and purchased the suit land from them in 2009. The transfer forms were surrendered to the late Stephen Kizito for purposes of processing a title. That unfortunately his father passed away before transfer processes ofthe suit land to his names were completed. That from 2009 to 2014 the plaintiff never laid any claims to the suit land until the late Stephen Kizito died in 20l4. Thathe subsequently discovered in 2018 that his late father had actually bought the suit land and that indeed when they made a search at the Land Registry in Kampala they discovered that the land was still registered in the names of Namasole Tekera Najemba Wagwesubi. That indeed him and his siblings have been collecting rent from the tenants for the last l0 years on behalf of all the beneficiaries of the late Stephen Kizito.

In Cross-examination he confirmed that his claim is on plot 688 while the defendant's claim is on 689. That the initial lease was on plot 688 although the building sits on both plots. The biggest part of the building is on plot 689. That both plots are still in the names of the late Tekera. He stated that since 2018 he has been collecting rent fiom the structures built by his father without any disturbance. He confirmed that the paid ground rent to the plaintiff and rent to the tenants.

DW2 KulLrbu Solomon Juma in his witness statement he stated that he is a son of the late Stephen Kizito and that the defendant is his brother. He confirmed and retaliated the evidence of his DWl.

DW3 Semujju Michael in his witness statement he stated that he met Stephen Kizito in 1998 and offered him construction services on the suit land. That in 2009 while they were carrying out construction work they were stopped by the office of Namasole claiming ownership of the suit land. That after sometime, the late Stephen Kizito informed them that he had purchased the suit land from the Namasole. He confirmed that the late Stephen Kizito is the one who constructed the building on the suit land and not the plaintiff.

In cross-examination he confirmed that they discovered that plot 688 belonged to their father who purchased the same from Ndibarekera Julian an administrator of Tekera Najjemba but Godfrey signed on behalf of the Namasole as the seller although had no powers of attorney to transact on behalf of the Namasole. In 2009 the registered proprietor was dead that Ndibarekera was alive although she had no Letters of Administration which were granted in 2010.

## RESOLUTION

## ISSUE l. whether the suit land and the developments there on form part of the estate of the late AIi Bukenya.

From the evidence on record, the plaintiffs evidence is that the suit land belongs to the estate of her husband the late Bukenya Ali who bought the same from a one Fred Kayemba that had purchased the same from the Namasole.

It is also borne out of evidence that the building/development on the suit property belongs to the defendants as it was built by their father the late Kizito Stephen. This was confirmed by pw3 who stated in cross examination that the shops she had constructed were destroyed by KCCA although she was never compensated. That the building currently on the suit land were constructed by Stephen Kizito, the defendant's father after obtaining a lease.

That notwithstanding, it is very clear from the pleadings that the plaintiff claim is on plot 689 while the defendant claims plot 688.

Both parties however led evidence claiming plot 688 which was not a pleaded fact thereby departing from their respective pleadings. In this judgement I shall therefore concentrate on plot 689 as the true suit property.

It is also clear that the building in contention was built by the defendant's father and it sits largely on plot 689 as per DEX20, the survey report. This evidence would largely fault the defendants and they would appear as trespassers.

However, although the defendant does not claim plot 689, it has an interesting history on how he entered and constructed the building.

As per PEXH3, a tenancy agreement was executed over the suit land between the estate of the late Ali Bukenya and the defendant's father Kizito Moses for 5 years.

Subsequently as per PEX4, another agreement titled extension of lease was executed between the late Bukenya Ali and the estate of the late Moses Kizito on the 29th day of my 2016.

The suit building was erected by the late Kizito on the basis of the initial agreement and his sons took it up in by virtue of the earlier agreement. However, the terms of the original lease agreement, PEXH3 were very clear under para 9(g) that at the expiry of the tenan y agreement, the

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fixtures would not be removed from the land. This means that the structures would definitely belong to the estate of the late Bukenya Ali.

The defendant's argument however is that the plaintiff misrepresented the defendant's father that she is the lawful /legal owners of the suit land whereas not.

As per PEX4 already stated above, the plaintiff represented herself as the lawful owner of Plot 688 which is not the subject of this case but allowed the defendants father to build largely on both plot 689 and to a small extent on plot 688.

Further still, Impliedly the plaintiff s exhibit PEX3 and PEX4 which are the basis of this suit are not applicable since the subject matter there in is plot 688 and not the plaintiff s claim which is based on plot 689.

The above evidence shows total confusion by both parties to the tenancy agreements.

In order to resolve the dispute between the parties, I shall consider other evidence on record as contained in their respective witness statements.

In their evidence, the defendants are not claiming plot 689 which is a basis of this suit. Since the registered proprietor is not party to the case, it would not be necessary to determine the issues of legal interest on the suit land.

In this case it is not in dispute that the plaintiff and her late husband took possession of the suit land in 1977. Although there is no claim of adverse possession, the plaintiff would still suffice as a bona-fide occupant on the land and enjoys protected under the RTA.

Therefore, it is irrelevant whether she was a registered owner on the suit land or not by the time PEX3 was signed. By documentary evidence as contained in PEI and PE2, it is clearthe plaintiff husband acquired the suit property comprised in plot 689 and a deed print was issued to him. In addition, the plaintiffls interest in the suit land would still exist by virtue ofpossession alone.

Besides the defendant's father fell short of doing due diligence to find out who the registered proprietor was before signing the original lease agreement with the plaintiffs husband. I therefore find no merit in the defendant's argument that the plaintiff misrepresented themselves as lawful owners of the suit land whereas not.

Be that as it may it is the finding of this court that the plaintiff has an equitable interest in the suit land capable of becoming alegal interest upon registration. However, it would be against the interest ofjustice for court to allow the plaintiff wholly take the building on the suit property.

It is not in dispute that the biggest part of the suit land is covered by the developments of late stephen Kizito, the defendant's father who was invited to the land by the plaintiff.

Whether the defendant's entry to the suit land was by an honest mistake or not, the plaintiff allowed the defendant's father to b ld on plot 68 1

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which was not covered by the tenancy agreement. As such it would be unfair for court to declare that the plaintiff owned the land and building on it. Whereas ignorance is not a defence in law, for court to declare as such would suffice as un -iust enrichment. It would therefore be fair if the plaintiff is paid 600% percent of the current market value of the building and the land which I do hereby allow.

## Issue 2. Whether the plaintiff is entitled to recover monies collected from tenants by the defendant since 2016.

The plaintiff claimed UGX 28, 000,000i as special damages'

I have already found that the lease agreements are concerned with plot 688 as opposed to the suit property which is plot 689. The defendant in his evidence confirmed that he has been collecting rent from the building since 2018 to-date at a rate of UGX 2,500,001-- per month which translates UGX 120,000,000/: forthe 4 years. Since that mount is not in dispute, the same would ordinarily be allowed as special damages. However, considering that the defendants have maintained the building, they are expected to incur other expenditures which I hereby put in consideration and allow ugx shs. 60.000.000/: being half of the amount I would have awarded.

## COSTS.

Ordinarily, costs follow the event and are discretionary as per section 27 of the CPA. The plaintiff having largely succeeded, she would be entitled to costs. I hereby award her half of the costs.

In conclusion this suit partly succeeds with the following order; -

- l. The plaintiff has an equitable interest in the suit land arising from the estate of the late Ali Bukenya, her husband. - 2. The plaintiff is granted ugx shs. 60,000,000/- (sixty million) as special damages. - 3. The defendant shall pay 60% ofthe current market value ofland and the developments on plot 689 to the plaintiff in 2 (two) months from the date of this Judgment. - 4. Registrar shall appoint a land valuer to determine current market value in 3 above. - 5. Half of the costs are awarded to the plaintiff.

TADEO ASIIMWE

JUDGE

23il012024.