Nakibuuka Sebalu v Semujju (Civil Suit 342 of 2021) [2024] UGHCLD 235 (23 September 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

## CIVIL SUIT NO. 342 OF 2021

#### THEMI NAKIBUUKA SEBALU $\mathsf{S}$

(Administratrix of the estate

of the late Paulo Sebalu....................................

#### **VERSUS**

SEMUJJU JOSEPH ....................................

$\mathcal{L} = \mathcal{L} \mathcal{L}$

# Before: Lady Justice Alexandra Nkonge Rugadya

#### **JUDGMENT:**

#### Introduction:

The plaintiff, Ms Themi Nakibuuka Sebalu is the sole administrator and beneficiary under the estate of the late Paulo Sebalu. She filed this suit as a 15 claimant of the property attached to each other, comprised in **Block 540, plot** 81; kibanja interest comprised in block 540, plot 44 at Kasanje, with developments of four containers, a saloon and a store at the back; kibanja comprised in **block 540, plot 43** with a developed old house structure, 20 containing three shops.

She filed this suit seeking among others, a declaration that the defendant is a trespasser on the suit land; a permanent injunction be issued against the defendant, agents, workers and assignces, third parties from trespassing on the suit land; mesne profits from 2013 until judgment; general damages, among others.

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It is the plaintiff's claim that the defendant was a care taker of the land in dispute which was initially owned by her father the late Paulo Sebalu. She admitted having signed an agreement with the defendant for the suit land but denied having received any consideration for the same from him claiming therefore that the defendant was a mere trespasser on the land.

In his defence, however, the defendant denied the claims, stating that the plaintiff had sold the suit land to him under the sale agreement which she herself wrote and which was duly witnessed.

That after purchasing the land, the defendant constructed the structures on the land but was surprised to receive a notice from her stopping him from $10$ management of the premises.

### **Representation:**

The plaintiff was represented by *M/s Mulindwa Associates & Co. Advocates*, while the defendant was represented by *M/s Baale & Partners*.

#### *Issues:* 15

$\mathcal{L}_{\mathcal{L}}(x) = \mathcal{L}_{\mathcal{L}}(x)$

During scheduling the following issues were raised:

- 1. Whether the defendant is a trespasser on the suit land? - 2. What remedies are available to the parties?

## Issue No. 1: Whether the defendant is a trespasser on the suit land: 20

### The law:

By virtue of **section 101 of the Evidence Act** whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

**Section 103** further stipulates that the burden of proof as to any particular fact 25 lies on that person who wishes the court to believe in its existence.

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As declared by the Supreme Court in its decision Justine E. M. N Lutaaya Vs Sterling Civil Engineering Co. Ltd SCAA No. 11 of 2002, trespass occurs when a person makes an unauthorized entry upon land and thereby interferes, or potends 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 $\mathsf{S}$ but against the person who is in actual or constructive possession of the land. It is also important to note at this stage that at common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass.

As also stated in Tayeba Geoffrey and Anor vs Kagimi HCCS No. 11 of

10 2012, (citing Ojwang vs Wilson Bagonza CACA No. 25 of 2002), for one to claim interest in land he/she must show that he/she acquired interest/title from someone who previously had interest/title thereon.

In order to prove the alleged trespass, the plaintiff in the present case had to show not only that she had valid interest in the land which the defendant had unlawfully acquired, entered and occupied.

The defendant on his part had to prove that the disputed *kibanja* had been validly sold to him by the plaintiff. (Ref: Sheik Muhammed Lubowa versus Kitara Enterprises Ltd C. A No.4 of 1987, the East African Court of Appeal (Ref also: H. C. C. S No. 118 of 2012, Tayebwa Geoffrey and Anor Vs Kagimu Ngudde Mustafa; Justine E. M. N. Lutaaya vs Sterling Civil Engineering Co, supra).

# Analysis of the evidence:

The plaintiff testified as **Pw1**. In paragraph 5 of her statement, stated as follows:

5. ....my late father had property in Kasanje, I became the proprietor of equitable interest comprised in block 540, plot 81 which is vacant and without developments, kibanja interest comprised in **block 540**, plot 44 at Kasanje with developments of four containers, a salon and a store at the

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$\mathcal{L}_{\mathcal{L}}(x) = \mathcal{L}_{\mathcal{L}}(x)$ $\langle \gamma_{\rm C} \rangle$

back, kibanja comprised in **block 540** with a developed old house structure containing 3 shops block 540 plot 43.

6. ..all the land is attached to each other located in Kasanje trading centre.

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$\mathcal{A} = \mathcal{A}$

$\left\vert \alpha \right\rangle \left\vert \vec{b}\right\rangle$

For the plaintiff to prove her registerable interest she needed to present the agreements and other relevant documents with details pertaining to the ownership, the specific plot numbers on which the bibanja were located and size/measurements of the bibanja.

Her claim of ownership was by virtue of being the sole *administratix* and beneficiary under the estate of the late Paulo Sebalu; and was based on the fact

that her father had purchased, and owned the suit kibanja under several 10 agreements.

The first of these was the hand written agreement dated 7<sup>th</sup> October, 2007, **PExh** $3(c)/3(e)$ .

By that agreement, the vendors who were the children of the late Edward Tabira jointly with their paternal uncle/guardian, one Lameka Sekasi, allegedly sold a 15 plot and house at Kasanje Trading Centre to the plaintiff's father, the late Paulo Sebalu, at a purchase price of *Ugx 15,000,000/*=.

The said house/kibanja was according to that agreement, located on the land of the late Kayongo. However, the agreement did not indicate the actual size, block number or plot number on which the *kibanja* was situated.

Another hand written agreement **PExh 3(d)** was made on 5<sup>th</sup> January, 2013 between the late Sebalu and one Kayabula Pasikale, for land at Kasanje Central Zone. This was clarifying on a previous one made between the same parties in 2008, which they claimed to have been lost.

The kibanja was located on **block 540, plot 43,** land belonging to Kamette $25$ Simon, Musansala Fred and Babirye Glades, measuring 55ft by 100ft. Although the said agreement indicated that the late Sebalu had paid the entire purchase

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sum, and duly endorsed by the members of the LC 1 Kasanje Trading Centre, the signatures of the owners of this land being the three administrators of Kayongo's estate were conspicuously missing.

$\mathcal{M}_{\mathcal{C}}(x)$ $\mathcal{L}(\mathcal{X})$

> **PExh 4** is a letter dated 14<sup>th</sup> January, 2020 addressed to the defendant by $M/s$ Kiwuuwa & Co. Advocates, the former lawyers for the plaintiff, barring him $\mathsf{S}$ from collecting rent from the premises.

Another notice was issued to him on 5<sup>th</sup> March, 2020 through *M/s* Isabirye & **Co.** *Advocates*. Both notices were titled: *Notice to stop collecting rent from* containers located on **block 540, plot 44,** land at Kasanje.

- In respect of *plot 44* which she claimed had developments, she did not present 10 any sale agreement to that effect. What she presented was **PExh 2**, a faint copy of certificate of title for the said **plot 44**, registered in the names of Simon Sekamatte, Fred Musansala and Gladys Babirye, the three administrators of the estate of the late Lauben Kayongo. - The plaintiff did not present the transfer forms signed by the administrators in 15 her names or those by Sebalu Paul, her late father and former owner of the kibanja. She did not lead evidence to prove which of the agreements tendered in court related to the purchase by her father of the said **plot 44**.

On the certificate of title for **plot 44**, the joint names of the administrators, (save for that of Sekamatte), had been entered on 4<sup>th</sup> February, 2003. The said 20 names also appeared under the sale agreement, **PExh 3(d)** dated 5<sup>th</sup> January, 2013 as owners, to which neither had however been a party. As noted by this

- court, the said agreement was not in respect of **plot 44** but rather **plot 43**, which had its own specific measurements. - Similarly, for *plot 81* which the plaintiff claimed to have been vacant, no 25 agreement was availed to court. There was no certificate of title, no transfer instrument and none of the agreements which the plaintiff relied on could be identified by this court as relating to that plot.

(Juliant

Against that background, the plaintiff entered into an agreement **PExh 3(b),** where according to the defendant (who at the time was a caretaker of the late Sebalu's property) plots 81 and 45 were sold to him.

The agreement did not however specify the size and plot number of the land under which the *bibanjas* allegedly sold to him by the plaintiff were located.

$\mathsf{S}$

The plaintiff therefore sought to challenge the validity of the said agreement maintaining that no consideration was ever paid by the defendant as claimed; that the agreement could not have been valid since it lacked a certificate of translation for the defendant who was illiterate.

It was also plaintiff's further claim that neither the defendant who had been its 10 caretaker for about three years from 2010 before her father passed away in 2013, nor his witnesses disputed the fact that she was the owner of the area in dispute.

She maintained that the contract between her and the defendant was never

intended to sell the land to him as claimed which therefore raised key issues 15 concerning the validity of that contract.

The defendant in denying the plaintiff's claims however did not file a counterclaim.

# a) Was there a valid contract between the two parties:

Section 10(1) of the Contract Act, 2010 defines a contract as an agreement 20 made with the free consent of parties with capacity to contract for a lawful consideration and with a lawful object, with the intention to be legally bound.

For a contract to be valid and legally enforceable, there must be capacity to contract, intention to contract, consensus ad idem; valuable consideration; legality of purpose; and sufficient certainty of terms.

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If in a given transaction any of these is missing it could as well be called something else. (Ebbzworld Ltd & Anor vs Rutakirwa Civil Suit No. 398 of $2013$ ).

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$\mathsf{S}$

The general principle is that when a document containing contractual terms is signed, then in the absence of fraud, or misrepresentation the party signing it is bound by its terms. (See: William Kasozi versus DFCU Bank Ltd High Court Civil Suit No. 1326 of 2000).

**Section 13** calls for free consent of parties to a contract such that where there is coercion; undue influence, fraud, misrepresentation no free consent exists. Reciprocal rights and obligations can only be created in a valid contract made between consenting parties.

Thus when a document containing contractual terms is signed, then in the absence of fraud, or misrepresentation the party signing it is bound by its terms. (See: William Kasozi versus DFCU Bank Ltd High Court Civil Suit No.1326 of 2000).

It was the plaintiff's claim in this instance that sometime in November, 2018, the defendant at her home sought for her help to successfully bid for a tender to construct a market, in competition with Buganda Kingdom in Kasanje.

The defendant relying on the evidence of two witnesses however claimed to have paid the entire sum of *Ugx 40,000,000/*= at the plaintiff's home. That the said 20 payment had been made in the presence of the two witnesses who testified as **Dw2** and **Dw3**. They had duly witnessed the said agreement, contrary to what the plaintiff wished court to believe.

In effect and as noted earlier, the plaintiff sought to challenge the validity of an agreement that she herself had made and duly signed by her. The reasons she 25 gave in her pleadings and evidence were varied.

In the first place, that since the defendant was illiterate he could not understand the terms of an agreement written in English which was never translated to him.

(What's

$\overline{7}$

The term "illiterate" is defined under section 1 of the Illiterates Protection Act, currently, Cap. 288, to mean, in relation to any document, a person who is unable to read and understand the script or language in which the document is written and printed.

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**Section 2** thereof provides for verification of the illiterate's mark on any $\mathsf{S}$ document. It requires that prior to the illiterate appending his or her mark on the document must be read over and explained to him or her.

Furthermore, by virtue of the provisions of **section 3** a document written at the request, on behalf or in the name of any illiterate must bear certification that it

fully and correctly represents his or her instructions and was read over and 10 explained to him or her. In the present case, there was a clear violation of the above provisions.

The second reason she gave was that the agreement tendered in court as **PExh** 3, she had made on 18<sup>th</sup> November, 2018 had not been witnessed, yet the agreement tendered in court by the defendant indicated three witnesses.

That she took a photograph of the said agreement using her phone camera and handed over to the defendant the original copy. As noted by this court, the contents of the agreement were not different, save for the addition of the names of the witnesses who all appeared in court as Pw2, Dw2 and Dw3, and confirmed their signatures on that agreement.

The plaintiff further claimed that the objective of this agreement was to assist the defendant to secure a tender for the market and that she never had any intention to sale to him the land but only assisted the defendant to apply for a tender.

With all due respect however to the plaintiff's claims, section 20 (2) of the $25$ **Contracts Act, 2010, provides as follows:**


An agreement whose object or consideration is unlawful is void and a suit shall not be brought for the recovery of any money paid or thing delivered or for compensation for anything done under the agreement unless-

- a) the court is satisfied that the plaintiff was ignorant of the illegality of the consideration or object of the agreement at the time the money was paid the money or delivered the thing to be recovered or did the thing in respect of *which compensation is sought;* - b) $\dots$ - c) $...$

$\mathsf{S}$

Deduced from the above, the plaintiff was by admission part of an illegality by 10 which she sought to create an impression that the defendant had duly purchased the land, whereas not, and that he had acquired ownership which would entitle him to compete favorably for the market tender.

In Parking Eye Ltd vs Somerfield Stores Ltd [2012] EWCA Civ. 1338 when considering the question whether an illegality would render the contract 15 unenforceable, the court considered the object and intent of the party attempting to enforce the contract; the gravity of the illegality in the context of the claim; and the nature of the illegality.

Under the circumstances as highlighted, the question as to whether or not therefore the sale agreement between her and the defendant was duly witnessed 20 by Kyabasinga Saul Dw2, Mawanda Musa Dw3 and Sempala Gerald (Pw2) became an academic exercise.

Such agreement, though seemingly well intentioned, and whose objects were intended to deceive and/or secure for another person an advantage for a bid tender (as the plaintiff wishes court to believe); an agreement that was based on 25 a false impression, orchestrated by or with the knowledge and participation of the plaintiff would put this court into serious doubt about the authenticity of her

Outset objective and claim therefore, and ultimately, the genuineness and propriety of this suit.

$\mathbf{L}$

The court can only come to the aid of a person who has done an illegal act where it is proved that she or he can base the claim independently of the said illegal

act. (Biyinzika Enterprises Ltd and 2 others vs Biyinzika Farmers Ltd and $\mathsf{S}$ Another CACA No. 0018 of 2017).

The plaintiff in this case had full knowledge of, and was party to the illegalities.

This court in addition noted that there were other interests of others who were not parties to this suit, which interests were never taken into consideration.

According to the plaintiff, her late father Sebalu had an equitable interest in the 10 land, which was registered under the names of the administrators of Kayongo implying therefore that as administrator/beneficiary under the estate, she had duly inherited/acquired interest from him.

The title **PExh 2**, for **plot 44** on which part of the kibanja in dispute (which had an old house) sold to Sebalu by the beneficiaries of the estate of the late Edward 15 Tabira is located, is currently in the names of the administrators of the estate of the late Kayongo.

As declared by court in the case of **Dr. Diana Kanzira vs Hebert Natukunda** Rwanchwende and Anor CACA No. 81 of 2020, a beneficiary can enter into a valid agreement of sale of land formerly owned by a deceased person, even when 20 he/she does not have letters of administration; or even where his/her name is not registered on the title, provided it is his/her share in the estate.

Section 29 of the Land Act, currently Cap. 236, however accords protection to any bonafide occupants or any such person who has valid unregistered interests.

A bonafide occupant is defined under section 29(2) of the same Act as a person 25 who before the coming into force of the Constitution had occupied and utilized

(Julat)

or developed any land unchallenged by the registered owner or agent of the registered owner.

Section 29(1)(b) considers a lawful occupant as a person who entered the land with a consent of the registered owner, and includes a purchaser.

By virtue of section 64(2) of the Registration of Titles Act any land included $\mathsf{S}$ in any certificate of title is subject to the subsisting rights of (among others), any adverse possessor.

The assumption in this case is that the beneficiaries of late Edward Tabira were equitable owners of the kibanja with its old house and therefore had every right to dispose it off to Sebalu, who in turn passed it on to his daughter following his demise.

In alignment with the above principles of law, the plaintiff as a sole beneficiary/administrator of her father's estate claiming interest as the subsequent owner of the kibanja had to show that her father had duly acquired the house and kibanja from the beneficiaries of the estate of Edward Tabira on 7<sup>th</sup> October, 2007, but more so, with the knowledge and consent of Kayongo, as

There is nothing to rely on to satisfy this court that by the said agreement between Sebalu and the occupants of the kibanja to prove that the kibanja in dispute had ceased to be part of Kayongo's estate; and that her father had duly 20 acquired protectable interest and capacity therefore to deal with the land as she wished court to believe; or that there was capacity to enter into binding relations in relation to Kayongo's estate.

the undisputed legal owner of the land; or the administrators of his estate.

Capacity to enter into a contract is a requirement under section 11(1) of the

**Contract Act.** A person has the capacity to contract where that person is of 25 eighteen years or above; of sound mind; and is not disqualified from contracting by any law to which he or she is subject.

Jackse DII

The Court of Appeal in its decision of Joyce Nakayima & 3 others vs Nalumansi Kalule and 2 others CACA No. 111 of 2019, declared that an illegal sale conducted without proper authority cannot be executed against any of the parties, let alone be enforced against a third party who was not privy to the contract.

$\mathsf{S}$

An administrator of the estate of a deceased person is his or her legal representative for all purposes, and as such all the property of the deceased person vests in him or her.

In case of an intestate, by virtue of section 21 of the Succession Act, Cap. 268 thereof, all such property would devolve upon the personal representative of the 10 deceased, as trustee for all the persons entitled to the property.

The question in this case which remained unanswered was whether the transaction for the kibanja bought from Edward Tabira's beneficiaries had been sanctioned by the late Kayongo's administrators/beneficiaries who were the registered owners of **plot 44**.

Section 92 of the RTA provides that the transfer of registered land can only be effected by the transferor signing transfer forms in favour of the transferee. The administrators of the late Kayongo's estate were in this instance the trustees of his estate, holding the same on behalf of the beneficiaries of that estate. Their

consent, involvement and role in all property registered in his names could 20 neither not be ignored.

It is presumed that Sebalu was fully aware of the implications and the risks involved in disregarding the interests of the legal owners when he purported to buy that *kibanja*.

A court ought not to allow itself to be made an instrument of enforcing $25$ obligations alleged to arise out of a contract or transaction which is illegal if the illegality is duly brought to the attention of court. (May vs Brown Doering MC

Julay

## NAB & Co. (1882) 2QB 728 cited with approval in Kyagulanyi Coffee Ltd vs Francis Senabulya CACA No. 41 of 2006.)

It goes without saying therefore that the late Sebalu may have purchased the kibanja but by omitting to involve the family of the late Kayongo in any of the transactions concerning the land he purchased, did not complete the transaction as he ought to have. Property did not therefore pass to him.

$\mathsf{S}$

Under those circumstances it therefore becomes difficult to appreciate how after Sebalu's death, the kibanja could have automatically passed onto his daughter, when there is no evidence of knowledge, consent or involvement by the said administrators.

Secondly, during the locus visit, court was also able to establish that there were other occupants other than tenants, on part of the area in dispute. The circumstances under which a portion of the *kibanja* in dispute was occupied by third parties comfortably settled, were not properly explained to court.

It could only mean that the land was shared between the Sebalu family and 15 others who were not witnesses or party to any of the agreements or this suit. As a matter of fact, none of them appeared at the *locus*.

In Sheik Muhammed Lubowa versus Kitara Enterprises Ltd C. A No.4 of 1987, the East African Court of Appeal noted that in order to prove trespass, it was incumbent on the party to prove that the disputed land belonged to him; 20 that the defendant had entered upon that land; and that the entry was unlawful in that it was made without his permission; or that the defendant had no claim or right or interest in the land. (Ref also: H. C. C. S No. 118 of 2012, Tayebwa Geoffrey and Anor Vs Kagimu Ngudde Mustafa; Justine E. M. N. Lutaaya Vs Sterling Civil Engineering Co, SCCA No. 11 of 2002). 25

The plaintiff in this case alleged that the defendant committed trespass on the vacant *plot* **81** which according to her, was to his exclusive use.

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The plaintiff did not however present any specific agreement on how she or her late father had acquired equitable interest on that plot. She did not present any transfer instrument to prove her claim.

Further allegations of direct interference by the defendant on **plot 43** were made by the plaintiff, which plot had structures from which he was collecting rent, and $\mathsf{S}$ according to the plaintiff, this was in violation of court order.

No survey report, certified copy of the titles, area schedules, transfer instruments, inventory or distribution list for either estate was availed on record to guide this court in determining the issue of ownership; or indicate any adverse

interests or even prove that the area visited by court was the same as that which 10 the parties in the various agreements had in mind, as verified in the land registry.

It was baffling to this court that the plaintiff herself was not so certain about which portion of the said plots of land she had interest in. In her various pleadings, her tales on what was owed to her by the defendant were inconsistent.

That is why in her pleadings, there was an erroneous inclusion of another **plot** 15 **45** which claims were however subsequently withdrawn.

The plaintiff had earlier obtained a temporary injunction under *MA No. 1338 of* 2021. Her interest at that time was in respect of block 540 plots 43, 44, 45 and 81.

On page 5 of her ruling dated 19<sup>th</sup> October, 2021 the presiding deputy registrar 20 (who evidently was at pains to appreciate the details regarding the suit land), had this to say:

> The respondent/defendant has claimed that he has equitable interest in block 540 plot 81 and block 45. He doesn't tell us on which particular plot he constructed the structures. The applicant claims that the structures are on plot 44.

The plaintiff in her affidavit in reply to the supplementary affidavits in **MA No. 661 of 2021** (dated $2^{nd}$ September, 2021) however had only expressed interest

ablae 9

$25$

in **plot 43** with developments. As earlier noted no survey report was presented to prove the actual location, leaving court in speculation.

In the plaint itself, under paragraph 4(a) the plaintiff's interest was in the vacant **plot 81,** kibanja interest in **plot 44,** which according to her had developments, as well as *plots 43 and 45*.

In paragraph 23 of the additional affidavit by Sempala Gerald deponed in support of the plaintiff's application for an interim order, he claimed to be caretaker of **plot 45** (on behalf of the plaintiff), a plot which the plaintiff later admittedly had no interest in).

- In paragraph 3 of the affidavit in support of her application under **MA No. 661** 10 of 2021, it is clearly stated that it was *plot 45* which had an old house. Yet under the agreement by which Sebalu had allegedly bought the kibanja which had an old house alleged to have been demolished by the defendant (respondent in MA No. 661 of 2021) was plot 43, not plot 45. - The confusion in the plots was compounded by the defendant's unsubstantiated 15 claims.

In *paragraph 5* of his response thereunder, he stated thus:

That in response to paragraph 3 of the affidavit in support of the application, I have equitable interest in the suit land comprised in block 540, plot 81 and 45 having acquired it by purchase from the respondent (sic!) as the administratrix of the estate of the late Paulo Sebalu.

Testifying as **Dw1**, the defendant in paragraph 2 of his witness statement dated 13<sup>th</sup> September, 2022 stated:

$\mathsf{S}$

$\ldots$ I am the owner of the equitable interest in the land described as Busiro block 81, 2 bibanjas each measuring 100ft x 33ft all located in Kasanje Trading Centre .... having purchased the same from the plaintiff....

This time round *plot* **45** was never mentioned in his evidence.

(Inley

Court was quick to note that the defendant himself lacked supporting documents, save for the agreement between them whose authenticity the plaintiff disputed.

Even if court were to regard it as a valid document, which it does not, it had no mention of any of the plots in dispute or the measurements of any the bibanjas $\overline{5}$ thereon. The inconsistencies as highlighted above were obviously irreconcilable.

The duty of this court with all due respect was not to fill in the glaring gaps for a party seeking justice and intervention, as that would require the court to transcend into speculation.

The mysteries surrounding the question as to which plot had structures out of 10 which rent was being collected by the defendant; or who was in occupation/possession thereof could not be resolved through mere speculation.

It became absolutely clear that both the defendant and the plaintiff's current care taker, **Pw2** knew little about the land to which they were each assigned as under takers. That also goes to say that the defendant could not have been a 15 caretaker of portions of land whose boundaries or measurements were neither known nor properly ascertained.

Added to that, without the signatures of the administrators of Kayongo's estate appearing on any of the agreements and without any such evidence of transfer; and with other persons in occupation, court would be disinclined to believe that the plaintiff was the undisputed and exclusive owner of the *bibanja* in dispute.

For as long as the *kibanja* in dispute remained part of the registered land under the names of Kayongo or the administrators of his estate; and indeed, for as long as there were some third parties in occupation of part of that kibanja, the land remained under the estate of the administrators, whose prior consent for validity, had to be sought.

The law and this court therefore can only protect persons with bona fide interests in the land, to the extent that any change of ownership of title effected by the

Antony

owner by sale, grant and succession or otherwise does not affect the existing lawful interests of or bonafide occupant. (section 36(9) of the Land Act

A new owner is thus under obligation to respect the existing interests and secure the prior consent of the existing owners/occupants before dealing with the land.

As stipulated under section 35(9) of the Land Act, consent is a crucial element $\mathsf{S}$ to a valid contract. That law applied in equal measure to any of the *bibanjas* said to have been purchased by the late Sebalu.

I could not agree more therefore, that a contract is void and cannot be executed if it is based on an illegality or where it is in violation of a statutory provision. No cause of action can be found on an illegality; and basically no rights can accrue to a party under an invalid arrangement.

Order 7 rule 11 (d) of the Civil Procedure Rules which is applicable to this case provides for a rejection of a plaint which is barred by law.

This suit is therefore dismissed, with costs to the defendant.

Alexandra Nkonge Rugadya

Judge

23<sup>rd</sup> September, 2024. Deliveed by email<br>Deliveed by email<br>Deliveed by email<br>Deliveed by email<br>Deliveed by email<br>Deliveed by email<br>Deliveed by email