Nakito (administrator of the Estate of late Erinesti kaweesa) v Nakiwala and 2 Others (Civil Suit 105 of 2006) [2023] UGHCLD 177 (7 June 2023)

# TIIE REPUBLIC OF UGANDA IN THE TIIGH COURT OF UGANDA AT KAMPALA (LAND DrvrSrON)

# CIVIL SUIT NO. I05 OF 2006

## SARAH NAKITO

(Administrator of thc Estate of

the late Erinesiti Kaweesa) PLAINTIFF

-VE,RSUS-

I. NAKIWAI,A SAFINA

2. BUYONGO KIM

3. NAMBATYA MASTULAA

(Administrators of thc estate of

the late Ahmed Sembatya) DIJ,I,,'ENDAN'I'S

# BEFORE: IION. MR. JUSTICE PIIILLIP ODOKI JUDGMEN'I'

#### Introduction:

[] The Plaintilf filed this suit against the Delendants sceking lor, a dcclaration that land comprised in Kyadondo Block 2 15 Plot 939 land at Kulambiro (hcrcin allcr referred 1o as the 'suit land') belongs to hcr as her beneficial sharc lrom thc estatc ol thc late Ilrincsiti Kawccsa; a dcclaration that the Defendants arc trcspasscrs on thc suit land; an ordcr to evict thc Dcfendants lrom the suit land; a pcrmancnl injunction against thc Dcfcndants, thcir agcnts or any person claiming i}om thcm or on thcir bchall, restraining thcm liom occupying, utilizing, selling, dcating with, claiming intercst, translering or in whalever manner interfering with the Plaintifl-s intcrcst in the suit land; gencral. punilive and exemplary damages; mesne prolil; intcrcsts; and costs ol'thc sur t

#### Background:

[2] From lhe pleadings of the partics and the documents adduccd in cour1, rvhich documcnts were not contested by both parties, it is common ground that the suit land originally lormcd part ol thc land of Yokana Gabiri, compriscd in Mailo Rcgistcr Volume 305 }rolio t 3, land at Kulambiro in Kyadondo, which land originated from Final Certificatc Number 16964.'l'he namc of Yokana Gabiri was entered on thc Mailo Regisler on thc 20rl'Novcmber 1924 and he was issued with a Certificatc of 'l'itle. l'he land olYokana Gabiri was mcasuring 637.40 acres or thereabout.

[3] On the 25th April 1941, Yokana Gabiri translerred 6 acrcs of his land to Erenesiti Kawesa. The name of llrcncsiti Kawcsa was accordingly entcrcd on the Mailo Registcr under Instrumcnl Numbcr 5 <sup>154</sup>I and hc was issucd with a Ccrlillcate of l'itlc lor land comprised in Mailo Rcgistcr Volume 828 Folio 6. Thc area of the land was statcd in Ilrenesiti Kawcsa's Ccrtificatc ol'l'itle as 6 acres, bcing part of land compriscd in IrinaL Ccnificatc Numbcr 16964 rcgistcrcd in Mailo Register Volume 305 lrolio 13.

[4] Thc transaction ol transfer of the 6 acres from Yokana Babiri to Erenesiti Kawesa was rcflectcd on the cncumbrance pagc olYokana Babiri's Cerrificatc olTitlc.'l'he area consliluting the 6 acrcs was marked on thc deed plan olYokana Gabiri as "X".

[5] On the 2'd March, 1952 Erenesiti Kawesa sold 0.71 acres out of his 6 acres to Alima Nakiwala at a considcralion of 70 shillings. On the 4th July, 1952, Ercncsiti Kawcsa signcd a lranslcr lorm in l'avor of Alima Nakiwata for the 0.71 acres. On thc 261r' October, 1954, Ercnesiti Kawesa died. Thc transfer form in favor ol Alima Nakiwala lor thc 0.071 acres was lodgcd in thc land's registry on the 28rh November 1955 under Instrumcnt Number Kl,A 2326.

[6] On the samc datc (28th November 1955) when the transfer form in lavor of Alima Nakiwala for thc 0.071 acres was lodgcd in the land's registry, thc name of Erenesiti Kawcsa was cancellcd as thc owner of the land comprised in Maito I{cgister Volumc 828 Irolio 6 by instrumcnt Ntmber 2326, instcad, the owncrs wero stated to bc Erenesitt Kawcsa as having 5.29 acrcs and Alima Nakiwala as having 0.71 acres.

[7] On the lOth June 1969, Mailo Regisler Volumc 828 Folio 6, was brought to the new register (thc Block and Plot register). It was dcscribed as Kyadondo Block 215 Plot 109. 'l'wo diflerent Registrars of title issucd 2 blue page Ccr-tillcatcs of Titlcs for Kyadondo Block 215 Plot 109. One in thc name olAlima Nakiwala, the arca was indicated to bc 0.71 acres and another in thc name of ljrcncsiti Kawesa, the area was indicated to be 5.29 acrcs. Thc bluc page Certificate of Title in the name of Alima Nakiwala was stated to havc been issucd on the 28th Novembcr 1955 under Instrument Numbcr KLA 2326, wl-rich is the same datc and Instrument Numbcr registcring thc transfcr of thc 0.71 acres from Erenesiti Kawcsa to Alima Nakiwala. Ihe bluc pagc Cc(ificatc of 'I'itlc in the name of Erenesiti Kawesa was on thc othcr hand issued on thr; lgtl' June 1967 under Instrument Number Mailo Rcgistcr Volume 829 Folio 6.

[8] On the 91h March 2001, Sarah Nakito (Plaintiff) and Nalwanga Susan who are granddaughters of Irrenesiti Kawesa were issued with a Certillcate ofSucccssion to the estate of the late Ercncsili Kawcsa by thc Administrator Cencral. The land they wcre inheriting was mentioned as, Kyadondo Block <sup>2</sup>I 5 Plot I 09, at Kulambiro, in Kyadondo, mcasuring 5.29 acres.

[9] On the 15th March 2003, vide IIigh Court Administration Cause No. 871 of 2002, Nakito Sarah (plaintill), Kawcsa Sam and Kawcsa Erncsl wcrc grantcd I-cttcrs of Administration to administcr thc estatc of thc latc Ercncsiti Kawcsa.

[ 0] On the I 5th I"e bruary 2006 the name of Erencsiti Kawcsa was cancelled from thc blue page ccrlificate of title and the names of Nakito Sarah (Plaintiff), Kawesa Sam and Kawesa Emest who are administers of the cstate of thc late llrenesiti Kawesa werc entered on the bluc pagc ccrtificate of titlc as thc proprietors.

[ 1] Vidc Instrument No. KLA290l72,1he area of the land on the blue page Certificate of Title in the name of Nakito Sarah (plaintiff), Kawesa Sam and Kawesa Emest, that is Kyadondo Block215 Plot 109, was amendod to 6.153 acres.

ll2l The area schedulc shows that plot 109, with an arca of6.153, was subdividcd into plot 939 and plot 940. Plot 940 was subdividcd into several othcr plots.

<sup>|</sup>131 On the I 5th Irebruary 2006, the Registrar of Titles, undcr Instrument No. KLA290172, issued a Certificate of l'itle for Block 2l 5 Plot 939 (the suit land) in the name of Nakito Sarah, Kawesa Sam and Kawesa Emest as administrators of the estate of the latc Ercncsiti Kawcsa.

[ 4] On the I ltr' Juty 20 I 9, thc Commissioncr I-and Rcgistration issucd a Spccial Certificatc of 'fi1le for thc suit land. In the Special Ccrlificatc ol f itlc, thc area of the land was statcd to be 0.3200 hectarcs. The deed print olthc suit land issued on 171h Junc 201 9 indicatcs that thc sizo of thc land is 0.288 hcctaros.

## The Plaintiff s case:

ll5l The Plaintilf pleaded that alter Ercnesiti Kawcsa sold 0.71 acres of his land comprised in Mailo Rcgister Volume 828 Folio 6 to Alima Namakula, hc (Ercncsiti Kawesa) signcd lransfcr lorm and mutation lbrm and handcd ovcr to Alima Namakula. Alima Namakula surveyed o1f her 0.7 I acres. created plol 33, regislered it in her names lcaving thc rcsiduc of Ilrcncsiti Kawcsa's land as plot 109 measuring approximatcly 5.29 acrcs. Upon the death of Ercnesiti Kawcsa. thc Plainliff and her co-administrators of the cstate of the late Drencsiti Kawesa translcrred the land comprised in Kyadondo Illock 215 Plot 109 into their namcs and subdivided it into plots 939,940, 1621 ard 1619. She was givon thc suit land as hcr bcncllcial sharc oflhc cstale.

[ <sup>6</sup>| According to the Plaintiffl, around 2003, the latc Ahmed Scmbatya, alleging to bc the administralor of the estate olAlima Nakiwala trespassed and /or entered on the suit land claiming that the late Alima Nakiwala had purchascd it. 'l'hc l']laintifl instituted this

1'.4p il .1

suit against Ahmed Sembatya, unfo(unatcly Ahmcd Scmbatya dicd before thc suit could bc hcard and determincd. After the dcalh ol Ahmed Scbatya, his children, including thc Dcfendants continued to trespass on the suit land and thereby lrustrating and impeding her right to quite possession of the suit land.

[7] I'he Plaintilf contcnded thal the Dclcndants' unauthorized entry and continued use ofpart ofthe suit land amounts to trespass, has caused her great inconvcniencc, financial loss, mental anguish and psychological tofiure lor which she holds thc Defendants jointly and sevcrally liable and she seeks fbr, gcncral damagcs; punitive damagcs; and mesne profit.

#### The Defendants' case:

[8] The Deitndants pleaded that they are thc lawlul owners of the suit land having inhcriled it lrom thcir father Ahmed Sembatya who was the administlator olthe estatc of thc late Alirna Namakula. According to the Defendants, Alima Namakula purchased thc suit land lrom thc latc Ilrencsiti Kawesa who lalcr bcqucathcd it to thcir fathcr.

[9] The Defendant pleadcd that Ahmed Scmbatya independcntly owned plot 33 which was neithcr subdivided liom the late Erenesili Kawesa's estate nor a residuc ofplot 109. According to the Defendants, thc suit land was crcatcd lrom plot 109 and it is thc very po(ion which was purchased liom thc late Erencsiti Kawesa by thc latc Alima Namakula. 'l'hcy fu(her pleadcd that they have been in possession of thc suit land without any disturbance from anyone. Thcy denied that thcy are trespassers on thc suit land. 'Ihey dcnicd that the Plaintifl suflcrcd any inconvenicnce, llnancial loss, mcntal anguish and psychological tonure.

#### Issues:

[20] At the hcaring, the lollowing issucs wcrc agrccd upon lbr thc dctcrmination of thc court;

i. Whether the suit land belongs to the estate of the latc Erenesiti Kawesa.

f

- (a) Whethcr the land the late Alima Nakiwala bought lrom the late Erenesiti Kawcsa is the suit land. - (b) Whethcr land comprised in Kyadondo Block 215 Plot 33 was curved out of land comprised in Mailo Register Volume 828 lrolio 6. - ll Whether the Defendants are trespassers on the suit land. - ll1. What remedies are available to the parties.

# Witnesses and documents presented:

[21] The Plaintiff testified as PW1. She did not call any other witness. She adduced <sup>15</sup> documents which were admitted in cvidcncc and marked as IlPl llP15. The lst Dcfendant testilicd as DW2. l'he Defendants callcd 3 witnesses. DWI was Mr. Notman Bamwcnda, a surveyor who opened the boundarics lor plots Block 215 plots 33,109 and 939 and made a repoft to that cflcct. DW2 was Safina Nakiwala (1't Defendant) DW3 was Mr. Emmanuel Bamwite, a Senior Registrar of Titlcs working at thc officc of the Commissioner Land l{egistration. DW4 was Mr. Jasper Kakooza, a Senior Staff Surveyor working with the Ministry ol Lands, Housing and Urban Developmcnt. 'fhc Defendants adduccd 16 documents which wcrc admittcd in evidence and marked as IIDI-ED16.

## Lesal reDresentation and submissions:

[22] At the hcaring, the Plaintiff was rcprcsented by Mr. George Muhangi ol M/S Kafeero & Co. Advocates. l'he Defendants wcre represented by Ms Rehema Nantongo of Kazungu Kakooza Alinaitwe & Co Advocates. Both counscl filed written submissions. I have considered the submission of counsel in the determination of the issues beforc thc court.

# Consideration and determination of the court:

Issue 1: Whethcr thc suit Iand belonss to thc eslatc olthc latc Ercncsiti Kawcsal

(a) Whcthcr the land thc latc Alima Nakiwala bou t lrom thc late Ilrcncsiti Kawcsa is the suit land. sh

# (b) Whether land comprised in Kyadondo Illock 215 Plot 33 was curvcd out ol land r:on-rp riscd in Mailo Rcsistcr Volumc 828 l;olio 6.

[23] It is common ground that thc suit land is registcrcd in the name of Nakito Sarah, Kawesa Sam and Kawesa Ilmest as administrators of thc estate of the latc Erencsiti Kawcsa. 'l'hc samc was rcgislcrcd in thcir namc on thc l51h February 2006, under Instrument No. KLA290 172.

l24l Counsel lor thc Plaintilf submitted that a Ccrlificate of 'l'itlc is conclusivc cvidencc and proof of owncrship unlcss thcrc is cvidcncc to thc contraly. According to counsel, under the concept of indefeasibility, the registcred proprielor is irrmune lrom attack by adverse claims 1o the land or interest in respcct of which he is registered. For thal proposition of tl-rc law, counscl cited the case ol Allan Fredrick Frazer versus Douslss Hamillon ll'alker and another (1967) AC 569.

[25] Counscl lor thc Dclendants on the othcr hand submitted that the Plaintiffdoes not cnjoy any indcfeasibility ofthc title sincc therc are adverse claims by the defendants of 0.71 acres lrom the estatc olthe late Ercncsiti Kawcsa as a rcsult of purchase by Alima Nakiwala. According to counscl lor thc l)clcndants. thc rcgistration was in cror. Counsel made relcrcnce to thc cvidcncc ol Mr. llmmanucl Bamwite (DW3) who testificd that thc rcgistration of the suit land into the name of the administrators of the estate of the late Ilrenesiti Kawesa rvas in eror bccause the portion of thc land which became plot 109 was meant to belong to thc cstatc of the latc Alima Nakiwala since the Plaintills had already got their land, that is plot 940 out olBlock 215 plot 109 measuring 5.29 acres. Thcreforc, the residue ofplot 109, that is plot 939, was for thc cstate of thc late Alima Nakiwala.

[26] Counscl lbr the Dcfendant lurther submitted that the registration of the suit land into thc namcs ol thc administrators of thc cstale of the late Ilrcnesiti Kawcsa was tainted with a lot of fraud and illegalitics. Counsel submitted that thc administrators ol the eslate of thc latc Ilrenesiti Kawesa wcnt ahead 1o proccss thc Ccrtificate olTitlc lor

<sup>I</sup>qp'^ <sup>7</sup>

Dminence Curdinol Nsubuga and 7 olhers 1982 IICR 11. Counscl prayed that thc Certificatc of 'l'itle for the suit land in the namc of the administrators ofthe late Erencsiti Kawesa bc recallcd and cancclled by cour1. thc suit land fully awarc olAlima Nakiwala's interest. Counsel rcl'crrcd to the evidence of thc Safina Nakiwala (DW2) who testified that the administrators of the estate of the latc Ercncsiti Kawesa were fraudulent since thcy wcnt ahcad to obtain thc Spccial Ccrtificatc of 'l'itlc whcn thc mattcr was in court and whcn thc suit land was cavcaled by hcr lathcr Ahrncd Scmbatya. Safina Nakiwala (l)W2) wcnt on to testify that the Certillcate of 'l'illc lor thc suit land was obtaincd on thc l51h Ircbruary 2006 when thc matter was alrcady in court. Counscl rclisd on scction 77 of BgE!;!!a!j9n-ili1!49" Cap 230 of the laws of Usonda and the case ol Mnkula Internotionol Ltd versus IIis

[27] I havc carefully considcred thc submissions of bolh counsel conceming the lcgal cffecl of 1c Ccrlificatc of Title for thc suit land bcing in thc namc of the administrators of thc cstate of thc late llrenesiti Kawcsa and whclhcr thc samc can bc rccalled and cancelled. Undcr thc Torrens system of land registration, which was first pionecrcd in South Australia in I 858 by Sir Robcrls 'I'orrens and was inlroduced in Uganda in <sup>1908</sup> by thc Reeistrotion of Land Titles Ordinonce, 1908 and has been applicd sincc then, a Ccrlificate of'l'ille once issued cannot bc impeachcd (callcd into question its intcgrity or validity) or deleasible (annulled or madc void). Once issued, the Certificate of l'itlc becomes conclusive evidence that the pcrson named in the Cerlificate of 'l'itle is thc proprictor of the land. Put differently, as was indccd statcd by Barwick C. J in Breskwr versus Ll/ttll (1971) 126 CLR 276 ot 385

"lt is not a system ofregislration but a system of title by registration. "

[28] 'l'hc principlc of indeleasibilily of'title, which is the foundation of thc Torrens system ol-titlc by registration, ovcrlooks any inlorrnality ol irregularity in thc rcgistration process, but only considers the rcgistration itscllas conclusive evidence of owncrship of the land. 'l'hc principle ol indefeasibility ol title is recognized in scvcral Titles Act. Cao 230. Section 59 thus providcs that; scctions ol lhc Regislration of

#### "59. Certificate to be conclusive evidence of title

No certificate of title issued upon an application to bring land under this Act shall be imoeached or defeasible by reason or on accounl of\_slyjLfulmsliry\_g1 irregularilv in lhe applicalion or in lhe proceedinps previotts to the reeistralion of the certificale, and every cerlirtcarc of fitle issued under this Act shall be received in all courts as evidence of the particulars set forth in lhq eelifi9g1e and of the entry of the certificate in lhe Regisler Book, and shall be conclusive evidence that the person named in the certificate as lhe proprietor ofor havinp anv estate or inlerest in or power lo appoint or dispose of the land described in the cerlificate is seized or possessed of that eslate or interest or has lhat power. "Underlined for emphasis.

[29] However, indefeasibility is not an absolute concept. It has a number ofexceptions. Under Section 77 of thc Resistration of Titles Act, Cap 230;

"Any cerlificale of title, entry, removal of incumbrances or cancelation, in the Regisler Book, procured or made by fraud, shall be void as against all parties or privies to the frdud. "

[30] Additionally, undcr Section 176 (c) of thc Registration of 'l'itles Act, where any person is deprived of land by a regislered proprietor by fraud, the person who has bccn deprived ofthe land can maintain an action lor cjectment or other actions for recovcry of the land. Section 176 (c) of the Resistration of Titles Act, Cao 230 thus provides that;

" l T6. Registered proprietor prolecled againsl ejectment except in cerlain cases No aclion of ejectment or olher action for recovet)) of any land shall lie or be maintained against the person registered as proprietor under this Act, excepl in any of the following cases -

(a)the case of a mortgagee as against a mortgagor in default;

(b)the case of a lessor as against a lessee in defoult,

- (c) the case of a person deprived of land bv fraud as against the person reeistered as proprietor of that land through fraud or as against a person deriving otherwise lhat as a transferee bona fide.for value from or through a person so registered lhrouzh-fraud: - (d) the case of a person deprived of or claiming any land included in any certificate of tille of other land by misdescription of the other land or of its boundaries as against the regislered proprietor of that other land not being a transferee of the land bona fide for value;

(e) the case ofa registered proprietor claiming under a certificate of title prior in date of registration under this Act in any case in which two or more certificates of title moy be registered under this Act in respect of the some land, and in any case other than as aforesaid the production of the registered certifrcate of title or lease shall be held in every court to be an absolute bar and estoppel to any such action againsl the person named in that documenl as the grantee, owner, proprietor or lessee of the land described in it, any rule of law or equity to the conlrary notwithstanding. " Unlined for emphasis.

[31] tlowcvcr, fbr a pa(y to rely on lraud to impcach thc Cerlilloatc ol 'l'itlc ol <sup>a</sup> rcgistcred proprictor, it is a mandatory rcquirement that particulars of lraud must bc pleaded and proved. Irailure to plead parriculars of fraud is a fundamental defect in pleadings which cannot bc cured by evidcnce or othcrwisc. In Tifu Lukwaso versus Samwiri Mutlde Kiua and Another S. C. C. A No. 13 of 1998, Mulcnga J. S. C held that;

"lt is correct that when a claim is based onfraud, then it must be specifically so stated in lhe pl.eadings, selting oul particulars of the alleged fi'aud: and lhal those particulars must be strictly proved. Ilowever what is required in pleadings is to disclose clearly, facts which, if proved strictly, would constitute fraud. "

[32] In the instant casc, thc Plaintiff clearly pleadcd, in the amended plaint filed in court on thc 1 llh Octobcr 2019, that the Ccrtificatc olTitle olthc suit land is in thc namcs ol the administrators olthc cslatc ofthc latc Erencsiti Kawcsa and actually attachcd to the plaint a copy of a search rcpo( datcd 1Oth July 2010 (EP13) which clcarly indicates that the proprietors olthe suit land are the administrators ollhe cstate of the late Ilrenesiti Kawesa. 'l'he Dcfendants, in their amendcd writtcn statcment of defense, which was filcd in court on thc 251h Octobcr 2019, did not plead that thc Cc(ificatc ol'Titlc was obtained by fraud. The Dcfendants did not also file any countcrclaim secking to impeach the certif-rcate of title in the name of the adrninistrators of the estate of the late Erenesiti Kawesa on account of fraud. 'fhe Defendants cannot, therefore, by way of cvidencc. be pcrmittcd to introduce new allegations offraud and makc ncw prayers that thc Certificate of 'l-itle in the name of the administrators of thc estate of thc latc Iircnesiti Kawesa, should bc rccalled and cancclled by courl when thc same did not lbrm parl of thcir plcadcd casc ln Inlerfreight Forworders (U) Lld versus Eost African Development Bank, S. C. C. A No. 33 of 1992, Odcr J. S. C. hcld that;

"The system of pleadings is necessary in litigation. It operates to define and deliver it with clarily and precision the real mallers in conlroversy between lhe parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjttdicate bebtteen them. It thus serves the double purposes of informing each party what is the case of the opposite parly which will govern the inlerloculory proceedings before lhe trial and which lhe court will have to determine at the trial. See Bullen & Leake and Jacob's Precedents ofpleading I 2th Edition, page 3. Thus, issues are formed on the cdse of the parlies so disclosed in the pleadings and evidence is directed at the trial to the proof of lhe case so set and covered by the issues framed therein. A party is expected and is botmd to prove the case as alleged by him and as covered in the issues framed. He will nol be allowed lo succeed on a case not so set up by

him and be allowed at the trial to change his case or set up a case inconsistent with whal he alleged in his pleadings except by way of amendment of the pleadings. "

[33] Had the Defendant pleaded fraud and praycd that the Certificate of l'itle for the suit land bc cancclled on account offraud, the Plaintiff would have had thc oppo(unity to respond to that allegation and the court would have liamed an issue on fraud so thal cvidence could be adduced for and against the allegation of fraud. The Defendants having lailcd or optcd not to plead fraud; they cannot be pcrmitted during hcaring to present evidcnce that is not in consonance with their pleaded case. 'fherefore, the evidcncc of Safina Nakiwala (DW2), allcging that the adminislrators of the estate of the late Erenesiti Kawesa wcrc fraudulenl in obtaining rcgistration or obtaining the special Ccrtificatc of 'l'itle, when thc samc was not pleadcd, amounts to a departurc from the Delcndants' pleadings. 11 is hercby rcjected.

[34] Similarly, thc cvidence by Mr. Ilmmanucl Bamwite (DW3) that the registration o1 the suit land in the name of the administrators olthc cstatc of thc late lirenesiti Kawcsa was in error is also a depafture from the plcadings of thc Dclendants. According to Mr. Emmanuel Bamwite (DW3), the suit land was supposed to be the interest ol Alima Nakiwala and yct it was rcgistered in the name of the administrators of thc cstate of the late llrcncsiti Kawesa, which in his view was an crror. IIc furthcr stated that certificate oftitle for the suit land was issued in cror because the acreage on the certificate of title is dilferent fonn thc acreage on the deed print.'Ihe Defendants, neithcr plead that there was error in the registration of the suit land into thc name of the administrators ollhe estale of the late Ercnesiti Kawesa nor did they pray that the cerlillcate of title should bc recalled and cancelled by court for having been issucd in eror. 'l'he evidence of Mr. Emmanuel Bamwite (DW3), in that regard, is a deparlure from thc Defendants' pleadings. It is accordingly rejected.

[35] On the submissions ol counsel lor the Delendants that thc rcgistration of the Ccrtificatc of 'l'itlc lor thc suit land in thc name of thc administrators of thc cstate of the

> l'4p ^ t2

late Erenesili Kawesa was illegal, counsel did not point out the illcgalily (breach olany law) committed by the adminislrators ol'the estate ol the lalc Rrenesiti Kawesa to warrant the court to apply thc principlcs in Mokula Internationol Lttl (supra). In my view, allegalions ofcrrors in registralion of a Cortificatc of 'l'itlc or allcgations ol liaud arc not matters of illcgalities that the couft can dcal with without bcing pleaded and proved.

[36] In the end, the delendants having no1 impeached the Cerlificate of Title for the suit land, which is in the name of thc administrators olthc estate of lhe late trenesiti Kawesa is, the Cenilicatc of 'l'itlc for thc suit land is thcrcforc conclusivc evidcncc that thc suit land belongs to the cstatc of the latc Erencsiti Kawcsa. 'l'hc administrators are holding thc suit land in trust lor thc cslate.

[37] Having lound that the Ccrtificate ol'l'itlc for the suit land was not impcachcd and thcrelbre thc Certificate of Title lor the suit land is conclusive evidence that the land belongs to thc estate of thc late Erenesiti Kawesa, I do not find the need to determine whether the land thc late Alima Nakiwala bought from the latc Ercnesiti Kawesa is the suit land or whcthcr land compriscd in Kyadondo Block 215 Plot 33 was curved out ol land comprised in Mailo Register Volurne 828 Irolio 6, in a bid to establish thc true ownership ol thc suit land. l'hc evidence adduced by thc panies conceming the cxact porlion of land which was sold to the latc Alima Nakiwala would only bc rclevant if thc dcfcndants had challcnged thc Ccrtificate of 'l'itle in the name of thc administrators ol Erinesiti Kawcsa, which thcy did no1 do. In the absencc of any challenge to the Ccrtificatc of Titlc for thc suit land, it would bc an cxcrcisc in lutility and againsl the spirit of law in section 59 ol thc Reeistrotiott of Titles Act, Cop 230 to invcstigatc whcther thc porlion which was sold by Ercnsiti Kawesa to Alima Nakiwala is the very portion which became thc suit land. Issue 1 is thercfore resolved in thc positive.

## Issue 2: Whclhcr the defcndants are lrcspasscrs on the suit land.

[38] Counscl for thc Plaintifl submitlcd that thc Dcl'cndants are trespassers on thc suit land. According to counscl lbr thc Plaintiff, thc Plaintiff is the registcred proprietor ol the suit land. Sincc 2006 whcn thc Certificate of 'l'itle was obtaincd, Ahmcd Sembalya and thc Dcfendants havc trcspassed on and cultivatcd thc suit land without the permission olthc Plaintilf thcreby denying the Plaintiff to takc actual possession ofthe suit land. According to counsel for the Plaintiff, no mattcr lor how long the real owner is ou1 ol'actual posscssion and usc ofthe suit land, hcr title and conslructive possession rcntalns

[39] Counscl lor the Defendants on the other hand submittcd that the Defendants are not trespassers on thc suit land sincc thcy are lawful owners of the suit land deriving thcir inlerest from grandmolher Alima Nakiwala who purchased the suit land. According to counscl for the Defendants, the Defendants and thcir family have been in possession of thc suit land since time immcmorial and the same was confirrned by the Plaintilf in hcr cvidcncc. Counsel lor the Defendant lurther submittcd that thc Plaintifl has nevcr bcen in posscssion olthc suit land but only tricd to takc possession ofthe suit land in 2006 but l'ailcd.

[40] I'hc law on trcspass is lairly scltlcd. In Justine E. M. N Lutavo vs Slerline Civil Engineering Company Ltrl Civil Aoneal No. I I of 2002, at pagc 6, Mulcnga, J. S. C hcld that;

"Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or porlends to interfere, with another person's lawful possession ofthat land. Needless to say, the tort oftrespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. "

l41f In Sheik Muhsmmed Lubowa versus Kitars Enlerprises Ltd, Court of Appeal Civil Appeol No. 4 of 198, ar pagc 4, Manyindo V-P held that;

"...it seems clear to me that in order to prove lhe alleged trespdss, it was incumbenl on lhe appellant to prove that lhe dispuled land indeed belonged to him, lhal the respondent had entered upon that land and that that entry) was

> l'rN ^ l4

unlawful in lhat il was made wilhoul his permission or that the respondent had no claim or right or interest in the land. "

[42] A person holding a Certificate of'l'itlc to land has legal possession of land and thereforc can institute a suit against a trcspasscr for cviction. In thc casc olMo oDrl Form Ltd versus Theuri (1973) E. A 1-1.4. in which thc trial court had dismisscd a suit by the registercd proprictor oi land on thc ground that at the limc oflhc unlawlul entry complained of, thc proprietor was not in posscssion. On appcal, counscl for the proprietor argued that while thc decision rnay have been in conlbnnity with the English Iaw, it was inconsistent with s.23 olthe Registralion olTitlcs Act of Kcnya. Spry, V. P. at pagc I 15 hcld that: I

"lfind this argument irresistible and I do not think it is necessary to examine the law of England. I cannot see how a person could possibly be described as 'the absolute and indefeasible owner' of land if he could not cause a trespasser on it to be evicted. The Act gives a registered proprietor on registration and, unless lhere is an y other person lawfully in possession such as a tenant, I think that tille carries with it legal possession. "

143) In Justine E. M. N Lutovo (supra) Mulcnga J. S. C., citcd rvitl-r approval thc casc of Mova Drift Farm Ltd and hcld that:

" ...in absence ofany olher person having lawful possession, the legal possession is vested in the holder ofa certificate of title to the land. ln the event oftrespass, lhe cause of action accrues to that person, as against the trespasser."

[44] From thc cvidence of the Plaintiffand that ol'the defendanls, it is common ground that the Defendants arc in physical possession of the sui1. I have already lound in issue I that the suit land belongs to the estats of the lale ljrencsili Kawesa.'l'hc Cerlificate of 'l'itle is in thc name of Nakito Sarah (Plaintifl), Kawcsa Sam and Kawcsa Drnest who arc administers of the cstate of thc late llroncsili Kawcsa. In law, thcy are in legal possession of the land. The Dclendants arc on the suit land without their pcrmission. 'l'he claim ol'thc Defendants that thcy are lawfully on the suit land by a viflue of <sup>a</sup>

purchase by Alima Nakiwala could only have been established by them impeaching the Certificate of f itle of the suit land which they did not do. I therefore find that the Delendants are trespassers on the suit land.

## Issue 3: What remcdics are availablc to thc parties.

[45] The Plaintiffprayed that, the suit land bc dcclared to belong to her; a declaration that thc Defendants are trespassers on thc suit land; an order to evict the Defendants {iom the suit land; and a permancnt injunction be issued against thc Defendants, their agents or any person claiming from them or on their behalf, rcstraining them from occupying, utilizing, selling, dcaling with, claiming interest, translerring or in whatever manner intcrlcring with the Plaintifls intcrcst in thc suit land. The Plaintilf also prayed for general, punitive and exemplary damages; mesne profit; interests; and costs ofthe surt

# Gcneral damagcs:

[46] General damages are losses that are non-pecuniary in nature and are not capable of precise calculation. It is therelore subject to estimation only. 'l'hey include pain and suffcring, physical inconvenience and mental distress. 'l'hc award of general damages is at thc discretion of courI, and is always as the law will presumc to be the natural consequence of the defendant's act or omission (See James Fredrick Nsubu ov, Atlornev General, <sup>I</sup>I. C. C. S No. I3 of 1 99-l\.'lhc obiective olawarding damagcs is that a plaintifl who suflers damagc due to thc wrongful act of the defcndant must be put in thc position hc or she would havc bccn in had he or shc not sulfered the wrong (Scc Charles Acire v. Mvaana Engola, H. C. C. S No. 143 of 1993: Kibimba Rice Ltd v. Umar Salim, S. C. C. A. No. I7 of 1992\. In assossing thc quanlum of damages, coutls are mainly guided, inler alia, by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent olthe breach (Sec Ueanda Commercial Bank v. Kieozi [20021 I 8A.305\. It is the duty o1' the claimant to plead and provc that there were damages, losscs or injuries suflered as <sup>a</sup>result ofthc dcfcndanl's actions.

[47] In thc instant casc, thc plaintifl tcstified that thc dclendants intcrfcrcd and or lrustrated her right to quite and pcaceful cnjoymcnt olthc suit land. -I'he valuc of thc suit land was staled to be bcyond UGX 50 million. I find that this is a fit and propcr case to award general damages ol tlGX 20 Million.

l't rrr it i r c/cr.cnrpllrrr tl:rrr r:rl cs:

[48] In Fedrick J. K Zaabwe versus Orient Bank Ltd & 5 othcrs,supra Katurecbe, JSC rclicd on thc dcoision of SPRY. <sup>Y</sup>. P . in Obongo -Vs- Kisumu Council ll97ll EA 9l and gave guidance on the purpose ofexemplary damages. He held that;

"...exemplary damages are completely outside lhe field of compensation and, although the benefit goes to the person who was wronged, their object is entirely punitive. "

'l'he leamed JSC further guided on the circumstances under which exemplary damages can awarded:

"first, where there is oppressive, arbitrary or unconstitutional aclion by the servants of the governmenl and, secondly, where lhe defendant's condttct was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff As regards the actual award, the plaintiffmust have suffered as a result of the punishable behaviour; lhe punishment imposed must nol exceed what would be likely to have been imposed in criminal proceedings if the conduct were criminal; and lhe means of the parties and everything which aggravates or mitigdtes the defendant 's conduct is to be taken into account. It tlill be seen that the House took the firm view that exemplary damages are penal, not consolatory as had sometimes been suggested. "

[49] l'he same principlc was adop1cd in Ueanda Revenue Authoritv vs. Wanumc David Kitamirikc CACA No.43 of 2010 whcre Kasulc , JA held that excrrplary or punitive damagcs are an cxccption to the rulc that damages gencrally arc to compcnsate the injured person. l-hese are awardable to punish, detcr, express outlage ol courl at thc defendant's egregious, highhanded, malicious, vindictive, opprcssivc and/or

malicious conduct. 1'hey locus on the defendant's misconduct and not the injury or loss suffered by the plaintifL

[50] Applying the above principles to thc instant casc, thcrc was no cvidcnce adduccd by the plaintiff to warrant thc award of punitive/cxcmplary damages. The Plaintifl did not adduce any cvidcnce that the Defendant's conduct was calculated to procurc for them some bcnefit, not nccessarily financial, a1 the expense of the Plaintill or that thc actions of the Delendants wcre egregious, highhanded, malicious, vindictive and oppressive. I therelore declinc 1o award any punitive/exemplary damages.

## Mcnsc profi1:

[51] Section 2(m) of the Civil Proccdure Act (Cap.71) deltnes mesne profits as;

'... those profits which the person in wrongful possession of the property actually received or might, with ordinary diligence have received from it, together \oith the interesl on those profits, but shall not include profits due to improvements made by lhe person in wrongful posses.sion'.

# l52l ln Adrabo Stanlev versus Madira Jimmv IICCS No. 0024 of 2013 Mubiru J held that;

"It is settled principle of law that in case of mesne profits the burden of proof rests on the plaintiff The onus ofproring what profits the defendant might have received with the ordinary diligence lies on the plaintiff. The plaintiff may also adduce evidence to prove lhat the defendant was not diligent and might have obtained grealer profits by proper diligence. "

# [53] The leamcd Judge fu(her held that;

"Determination of the quantum of mesne profits is left at the discretion of the court and being in the nature of damages, the Courts have not laid down any invariable rules governing award and assessment of mesne profits in every case. There is no uniform criteria for the assessment of mesne profits. The quantum depends upon the facts and surrounding circumstances of each case. The Court

l'.\\) r\ Itt

may mould awards and assessment of mesne profits according to the justice of the case. "

[54] In the instant case, the plaintiff did not adduce any evidence of profits the Defendant might have received from the use of the suit land. I there therefore decline to award any mensc profits.

#### Costs of the suit:

[54] Section 27 (2) of the Civil Procedurc Act provides that thc award ofcosls is in the discrction olcourt and costs ofany aclion shall follow the cvcnl unless for good reasons court directs otherwise . In 1989. it was further held that a successful party should not be dcprived olcosts exccpt lor good reasons. In the instant casc, thc plaintiffsuit has succccded. There is no reason why I should not award her the cosls ofthe suit.

## 0rders:

[55] In the end, having determined this matler in lavor of the plaintiff, I thus make the following orders;

- i. It is hcreby declared thal that thc suit land belongs to the estate of the lats Erenesiti Kawesa. - ii. It is hereby declared that the Defendants are trespassers on the suit land. - iii. An order is hereby issued to evict the Defendants from the suit land. - iv. <sup>A</sup>permanent injunction is hereby issued to restrain the Defendants, their agents or any person claiming from them or on their behalf, from occupying, utilizing, selling, dcaling with, claiming interest, transfeming or in whatever manner intcrfering with the suit land. - v. The Defendants are hereby ordered to pay to the plaintiffgeneral damages of UGX 20 Million.

- vi. The general damages mentioned in (v) above shall attract interest of $15\%$ per annum from the date of the judgement till payment in full. - The Defendants to pay the plaintiff the costs of the suit. vii.

I so order.

Dated and delivered by email this 7<sup>th</sup> June 2023.

$PPT$

Phillip Odoki

Judge.

$\epsilon$