Nowa Orieda v Mugabe and Another (Civil Suit 64 of 2024) [2024] UGHC 890 (9 August 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT HOIMA

# CIVIL SUIT NO. 0064 OF 2024 (Formerly MSD HCCS No.12 of 2009)

#### NOWA ORIEDA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## 1. MUGABE WILLIAM **2. MBOINEWANGE ANTONIO EXAMPLE ALIMANTS**

Before: Hon. Justice Byaruhanga Jesse Rugyema

## **JUDGMENT**

- The Plaintiff sued the Defendants inter alia, for a declaration that he is the $[1]$ customary owner of land **measuring approximately 300 acres** situated at Kataaba village, Buseruka sub county, Hoima District, cancellation of the Defendants' certificate of title comprised in Plot 70, Block 2 land at Rwengabi in Kataaba, Hoima, general and exemplary damages and costs of the suit. - It is the Plaintiff's case that at all material times, he was the customary $[2]$ owner of the suit land but in August 2005, when the 1<sup>st</sup> Defendant was surveying his land which neighbours the suit land, the surveyors included the plaintiff's customary land. That when the Plaintiff protested the trespass, the $1^{st}$ Defendant reacted by opening up false criminal allegations of assault against the Plaintiff at police. Consequently, the Plaintiff discovered that the Defendants obtained registration of the suit land by fraudulently including his customary land on their certificate of title and they are threatening to forcefully evict him therefrom. - The Plaintiff contended that the Defendants jointly and severally $[3]$ fraudulently secured a certificate of title and particularised fraud inter alia, as follows:

- a) Forcefully including the plaintiff's customary land on the certificate of title without his consent with intent to defeat his unregistered interest thereon. - b) Failure to involve the neighbours during inspection and survey process. - c) Misdirecting and misleading surveyors and the land committee on the exact and actual land of the defendant and going beyond the boundaries of the $1^{st}$ defendant land to the plaintiff's land. - d) Deliberately processing a certificate of title without following the right procedure. - e) Applying to be granted a lease offer and a certificate of title over land that was not available. - $[4]$ The Plaintiff further contended that as a result of the foregoing, he was greatly inconvenienced because his own process of securing a certificate of title was delayed and frustrated by the defendant's acts, was denied quiet possession of his land, paralysed his farming activities and that the defendants' acts were high handed for which he sought for both general and exemplary damages. - $[5]$ In their defence, the Defendants denied the Plaintiff's claims and contended that in their acquisition of the suit land, they followed the right procedure to bring the land in issue under the operation of the Registration of Titles Act. - The Defendants counter claimed against the Plaintiff by adding a one **Paulo** $[6]$ **Halingoma** as a $2^{nd}$ counter defendant for recovery of general damages for trespass and a permanent injunction to restrain the counter defendants $\cap$ from continuing with the trespass. - It is the Defendants/counter claimants' case that at all material times they $[7]$ were the owners of the land in issue where they carry out livestock farming and have a temporary structure thereon. That the $2^{nd}$ counter defendant brought cattle on the suit land claiming to be a tenant of the plaintiff/ $1^{st}$ counter defendant thus hold both of them liable in trespass.

## **Counsel legal representation**

The Plaintiff/ $1^{st}$ counter defendant was represented by Mr. Moses Tugume $[8]$ Tugume- Byensi & Co. Advocates, Kampala while of $M/s$ the

Defendants/counter claimants were represented by Mr. Peter Ssetimba of M/s Ssetimba & Co. Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination of this suit.

- During the scheduling conference, the following issues were formulated $[9]$ for determination of the suits. - 1. Whether or not the Plaintiff/Counter defendant has customary interest in the 300 acres of land at Kataaba village, Buseruka sub county, Hoima District. - 2. Whether or not the Defendants/Counter claimants obtained the certificate of title of the suit land fraudulently. - 3. What remedies are available to the parties.

# Burden and Standard of proof

$\tilde{\mathbf{z}}$

- [7] Under **Ss.101-103 of the Evidence Act,** the provisions generally are to the effect that whoever asserts a fact must prove it. Whoever wants court to believe in the existence of a given set of facts, must have the burden to prove their existence. The onus is on a party to prove a positive assertion and not a negative assertion. He who affirms the affirmative of an issue in dispute has the burden to prove it and the standard of proof in civil cases is on the balance of probabilities, see John Bwiza Vs Patrick Yowasi Kadama, CACA (U) No.35 of 2011 and Jovelyn Buarugahara Vs A. G. SCCA No.28 of 1993. - [11] In the instant case, for the Plaintiff to succeed in this action, he has the burden to prove that he is the lawful owner of the customary land at Kataaba village measuring 300 acres and that during the acquisition and registration of the Defendants on the certificate of title comprised in Bugahya Block 2, Plot 70 land at Rwengabi-Kataaba fraudulently included his customary land.

# Preliminary point of law

# Whether the plaint discloses a cause of action against the defendants.

[12] In the Written Statement of Defence (WSD), the Defendants intimated in paragraph 5 that at the hearing of the suit, they would raise a preliminary

objection that the suit does not disclose a cause of action against the defendants, the suit is barred in law and it should be dismissed with costs.

- [13] At the commencement of the hearing of the suit on the $2/1/2009$ before Ralph W. Ochan, J. (Retired), counsel for the defendants raised the preliminary objection that the plaint does not disclose of action against the defendants on the following grounds: - 1. That the plaintiff did not plead how he acquired customary ownership over the suit land. - 2. That the Uganda Land Commission (ULC) and Hoima District Land Board (HDLB) which issued the certificate of title to the Defendants were never joined as parties since the plaintiff cannot be a customary owner of public land. - [14] On $2/11/2009$ , the presiding Judge, Ralph W. Ochan overruled the preliminary objection by counsel for the Defendants but intimated to give the detailed reasons in the final decision of the court in the matter. Unfortunately, the presiding Judge retired from judicial service before the conclusion of this suit. As a trial Judge who concluded the hearing of this suit, it is my view that I am mandated to reconsider the preliminary objection and give reasons for the decision in this judgment. - [15] In the $1^{st}$ instance, I am in agreement with the retired Judge Ralph Ochan that the plaint discloses a cause of action against the Defendants and therefore, the preliminary objection was rightly dismissed. - [16] As to whether a plaint discloses a cause of action, it was held in **A. G Vs** Oluoch (1972) EA 392 to be determined upon perusal of the plaint and attachments thereto alone with the assumption that the facts pleaded or implied therein are true. - [17] As per the plaint in this case, the Plaintiff's claim against the Defendants is briefly for fraud. That he is the customary owner of the suit land at Kataaba village measuring 300 acres which the Defendants included in their certificate of title without his consent. He therefore seeks inter alia. cancellation of the title that fraudulently included his land without his consent, a declaration that he is the customary owner of the suit land and a permanent injunction to restrain the defendants from trespassing on the suit land and evicting him.

- [18] In short, he claims he has a right over the suit land as its customary owner. The right has been violated by the Defendants who he alleges included his customary land in their certificate of title during surveying and registration exercise and he holds them liable, see Auto Garage & Ors Vs Motokov (No.3) [1971] EA 514 at 519. - [19] As to how the Plaintiff acquired ownership of the suit land in question or whether the land was available for leasing to the Defendants as public land by ULC and HDLB, these are matters of evidence to be adduced before court and not as preliminary matters. I find that a customary owner of land has locus standi to institute a suit for cancellation of certificate of title if, his customary land is fraudulently surveyed and included in the certificate of title of another. - [20] As regards the failure to join ULC and HDLB as parties, Counsel for the Plaintiff rightly submitted that under **O.1 r.9 CPR**;

"No suit shall be defeated by reason of the misjoinder or non joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."

- [21] In view of the above, this court is entitled to adjudicate over the matter in respect of the parties before it. The defendants if interested, they have an option of applying to court to include ULC and HDLB as defendants. Otherwise, as discussed above, the plaintiff at hand discloses a cause of action against the defendants. - [22] Having given reasons for overruling the preliminary objections of the defendants, I proceed to deal with the merits of the suit. - Issue No.1: Whether the Plaintiff/Counter defendant is the customary owner of the 300 acres of land at Kataaba village, Buseruka sub county. Hoima District. - [23] Counsel for the Plaintiff submitted that customary land tenure is recognised under Articles 237(3) (a) of the Constitution of Uganda 1995 and Ss.2(a), 3(1) of the Land Act. That occupation of vacant public land by customary tenants is one of the customary/cultural practices that are considered as modes of land acquisition. That in the instant case, the plaintiff occupied free public land of 300 acres which he came to own

under customary tenure where he has grown permanent fruit trees (mangoes, Jack fruits), bananas and sisal.

- [24] Counsel for the Defendants on the other hand submitted that the plaintiff does not own the suit land because of the following: - a) In his evidence he stated that he settled on the land in 1967 when he migrated to Kataaba village from Bukomero in Kiboga by way of first occupation but that in his pleadings, it is stated that he acquired the 300 acres of land in 1997 after the elders had given him that land as a settlement of a land disputes. - b) That no evidence was adduced by the plaintiff to prove the custom under which he acquired the land through allocation from the elders. - [25] In the first instance, I do not find it true or correct as counsel for the defendants put it in his submissions that the pleadings are to the effect that the plaintiff acquired 300 acres of land in 1997. The pleadings refer to the year 1997 as to when the plaintiff had a dispute over the suit land with others described as neighbours and the elders of Kataaba village amicably resolved the matter in his favour. - [26] Otherwise, in his evidence, the Plaintiff as **PW1** testified that in 1967, he came from Bukomero in Kiboga District and acquired the 300 acres of land at Kataaba village by way of $1^{st}$ occupation. The land shared a boundary with his father, a one **Rasto Jalmoro** who also came later and settled in the area. He cultivated thereon fruit trees (mangoes, jackfruits) bananas and sisal. He started by rearing thereon goats and then later, grazing cattle. - [27] At the time, the $1^{st}$ Defendant and his late father **Zakayo** had not come in the area. They came later and settled at Rwengabi village, Kabwoya sub county neighbouring the suit land, separated by Rutooha stream/river. It was after his father's death that the $1<sup>st</sup>$ Defendant started laying claims to the plaintiff's land and when the plaintiff reported the matter to the L. C1 chairman, Jackson Asura, the plaintiff, his son and the chairman were arrested for threatening the surveyor who was surveying the land on behalf of the 1<sup>st</sup> Defendant. Eventually, out of the 300 acres the plaintiff owned, he was left with 30 acres upon the 1<sup>st</sup> Defendant planting the survey stones and fencing off the alienated land. - [28] The Plaintiff's evidence was corroborated by that of Margaret Rugadya (PW2) who had been in the area since 1984 and she was a member of the Buseruka Area Land Committee from 2002 to 2005 where the plaintiff's suit land is located. She confirmed that she knew of the 1<sup>st</sup> Defendant who had land in the neighbouring Sub county of Kabwoya separated from Buseruka by Rutooha River and therefore, confirmed that the suit portion of land belonged to the plaintiff and that the Area Land Committee of **Buseruka** never got involved in the $1^{st}$ Defendant's acquisition of the suit land. Both Paul Mwinogoma (PW3) and the area L. C1 chairman, Asura **Jackson** (PW4) confirmed that the suit portion of land belongs to the plaintiff and the 1<sup>st</sup> Defendant encroached on it by crossing the boundary comprised of **River Rutooha** during the surveying of his land. He gave the boundaries of the plaintiff's land as Kaiso Game Reserve, Hoima-Kabaale to Kaiso road in the North and **River Rutooha** in the South. - [ $-\theta$ ] In his defence, during cross examination, the 1<sup>st</sup> Defendant **(DW1)** admitted that his land is located in **Rwengabi village in Kabwoya Sub county** which is separated from **Buseruka Sub county**, where the suit land is located, by the Rutooha stream. The Kabwoya Area Land Committee did not participate in the inspection of land on the grounds that his land covered both Buseruka and Kabwoya sub counties. Margaret Rugadya (PW2) a member of the **Buseruka Area Land Committee** then, denied that the Area Land Committee inspected the 1<sup>st</sup> Defendant's land. The Defendant himself admitted that the Plaintiff owns land in Kataaba village, Buserula sub **county** and that before the radio announcement of 2005 by the chairman HDLB about the availability of land for leasing in the area, he did not own land in Buseruka Sub county. John Kahwa Byaruhanga (DW3), the surveyor of the Defendants who surveyed the suit land, admitted that he faced protests from the plaintiff during the survey but still proceeded to conclude the survey. - [30] Under S.1 of the Land Act, customary tenure is defined to mean a system regulated by the customary rules which are limited in their operation to a particular description or clan of persons, the incidents of which under **S.3 of the Act,** includes rules applicable to a specific area of land and a specific description or clan of persons, rules generally accepted as binding and authoritative by the class of persons to which it applies and applicable to any person to acquire land in that area.

- [31] It is now trite that settling by $1^{st}$ occupation on free public land in none urban areas is one of the modes of acquisition of customary land prior to the 1975 for the Land Reform Decree of 1975 abolished fresh customary ownership of land. The acquisition by $1^{st}$ occupation of the 300 acres of land in Buseruka Sub county in 1967 was confirmed by the resident Paul Mwinogoma (PW3) aged 82 years and the L. C1 chairman of the area, Asura Jackson (PW4) a resident of the area aged 70 years. He became the chairman from 1986. Upon acquisition of the land by $1^{st}$ occupation, the Plaintiffs carried out cultivation of perennial crops and grazing of animals. - [32] In the instant case of Matovu & 2 Ors Vs Mohammed Sseviri & 2 Ors, CACA No.7 of 1078, it was held that customary tenure can be established by cultivation of crops or grazing cattle or related construction of wells to water cattle. The authority supports the Plaintiff's claim of customary ownership of the suit land. Customary ownership is established by his undisputed activities on the suit land. He enjoyed customary rights over the land by occupation and use since 1967. From the foregoing, it follows that the suit land being occupied and utilized by the Plaintiff was not available for leasing to the Defendants. In case of any allocation by ULC and HDLB, the plaintiff would have been entitled to the first offer or be given adequate compensation before allocating it the Defendants. - [33] In conclusion, I find that the plaintiff has discharged the legal burden of proving to the required standard that he is the customary owner of the 300 acres of land at Kataaba in Buseruka sub county. Hoima District. The survey report that was consented to by the parties on record confirms that the Defendants' certificate of title included the Plaintiff's customary land in **Kataaba village in Buseruka sub county.** The 1<sup>st</sup> issue is found in favour - of the plaintiff. - Issue No.2: Whether or not the Defendants/Counter claimants obtained the Certificate of title of the suit land fraudulently. - [34] In Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No.22 of 1992 [1993] **UGSC** 1, it was held that,

"It is well established law that fraud means actual fraud or some act of dishonesty."

Further that,

"Fraud must be proved strictly, the burden being heavier than

on a balance of probabilities generally applied in civil matters." In John Katarikawe Vs Wiiliam Katwiremu & Anor [1977] HCB 211, it was also held that the act of registering land for purposes of defeating the unregistered equitable interest of another person amounts to fraud.

- [35] In the instant case, the Plaintiff (PW1) claims that he owns 300 acres of land under customary tenure in Kataaba village, Buseruka sub county, Hoima District. It is separated from the 1<sup>st</sup> Defendant's land at Rwengabi village in Kabwoya sub county, Hoima District by River Rutooha. According to the $1^{st}$ Defendant (DW1), the chairman HDLB put out an announcement that there was free land at Rwengabi-Kataaba village which had been degazetted a game reserve and was available for allocation to an interested person. That he applied for the same and the Area Land Committee of **Buseruka sub county** inspected the land, gave a report which gave way to the survey and registration of the land. - [36] However, during cross examination, DW1 explained that the land he applied for covered both **Buseruka** and **Kabwoya sub counties** which are separated by River Rutooha. That whereas the Area Land Committee of Buseruka did the inspection of the land, the Kabwoya Area Land **Committee** did not participate in the inspection of the land. - [37] In evidence, whereas the Plaintiff adduced evidence that his customary land is in **Buseruka sub county** and that during survey of the 1<sup>st</sup> Defendant's land, the 1<sup>st</sup> Defendant crossed the Rutooha stream and included his land during the preparation of the certificate of title as supported by the area L. C1 chairperson (PW3), the $1<sup>st</sup>$ Defendant did not adduce any evidence to prove that the land he applied for crossed the **Rutooha stream** which is admitted as the boundary between **Buseruka sub county** and **Kabwoya sub county** so as to justify the inclusion of the suit land in his title. - [38] Secondly, though the $1^{st}$ Defendant (DW1) claim that the **Buseruka Area** Land Committee inspected his land, Margaret Rugadya (PW2), one of the members of the **Buseruka sub county Area Land committee** (2002-2005) denied knowledge of any such inspection. Her evidence was not controverted at all by the defendants. Besides, in my view, since the defendants assert that the land traversed the 2 sub counties, the area land committees of the 2 sub counties ought to have been involved. It is trite

that before the District Land Board deals with an application for land Registration, it must receive a recommendation/report of the area land committees. It is the Area Land Committees that ascertain ownership rights of the land being applied for. It is therefore the **Buseruka sub county Area** Land Committee that would ascertain ownership of land in Buseruka sub county. At page 33 of the typed proceedings, the 1<sup>st</sup> Defendant (DW1) admitted thus:

> "Before the opening up of Buseruka land I only had land in *Kabwooya. After the inspection, we got an inspection report.* Its comment is that Kataaba is in Buseruka while Rwenaabi is in Kabwoya sub county."

- [39] The above corroborates the Plaintiff's evidence that the Defendants owned land in Kabwoya and not in Buseruka sub county. It is evident that the L. C chairman of the area **(PW3)** was neither involved in the inspection and survey of the land. The survey, planting of mark stones and fencing of the land was done when both the plaintiff and the L. C1 chairman of the area who had opposed to the survey were in the Local Administration Police cells on tramped allegations of theft of the surveyor's tools. It is in such circumstances that I find it doubtable that an actual inspection ever took place by the Area Land Committee on this land. - [40] In the premises, I find that the Defendants never owned any land in Kataaba village, Buseruka sub county. The Plaintiff was the customary lawful owner of the land in **Kataaba village**. It is evident that the surveyor (DW2) surveyed land whose ownership was hotly contested. The joint surveyor's report confirm that the impugned certificate of title does not only cover land in **Kabwoya Sub county** which the $1^{st}$ Defendant genuinely owned but also encompass the land in **Buseruka Sub county** which the Plaintiff lawfully owned. The survey was beyond the Defendant's land to include the Plaintiff's land thus; the suit land was neither vacant nor available for allocation to the Defendants. - [41] As a result of the above, I find and hold that the Defendants fraudulently processed a certificate of title over the Plaintiff's 300 acres of customary land in Kataaba village, Buseruka sub county to defeat the Plaintiff's interest which amount to fraud. The $2<sup>nd</sup>$ issue is in the premises found in the affirmative.

# Issue No.3: What remedies are available to the parties

[42] As this court has found that the Defendants' certificate of title comprised in Bugahya-Kataaba village, Hoima District was fraudulently obtained, it follows that judgement is given in favour of the Plaintiff and the Counter claim is dismissed with costs in the following terms;

# a) Declaration of ownership

[43] The Plaintiff is declared the lawful owner of the suit land measuring approximately 300 acres at Kataaba village, Buseruka sub county, Hoima District under customary tenure.

### b) Permanent injunction

[44] A permanent injunction issues restraining the Defendants from ever trespassing onto the Plaintiff's customary land or evicting him, his agents and successors in title or entering any transaction in respect of the said suit land without the Plaintiff's consent.

# c) Cancellation of the title

[45] The Certificate of title was fraudulently obtained and therefore liable for cancellation. It is however evident in this case that the Defendants' merely illegally included the Plaintiff's customary land, instead of cancellation, under the powers of this court vested under **S.33 of the Iudicature Act.** I order the Commissioner Land Registration to amend and/or rectify the Defendants' title; Bugahya Block 2, Plot 70 land at Rwengabi- Kataaba village Hoima District under S.91 Land Act to exclude the Plaintiff's land measuring 300 acres located in Kataaba village, Buseruka sub county, Hoima District so as to restrict the residue at Rwengabi village, Kabwoya sub county, Hoima District to the Defendants that genuinely own it.

### d) General damages

[46] General damages are such as the law presumes to be the direct natural or probable consequence of the act complained of, Storms Vs Hutchinson (1905) AC 515. In the instant case, I find that the Plaintiff was greatly inconvenienced and subjected to psychological torture and anxiety and mental anguish due to the Defendants 'illegal actions intended to deprive of him of his **300 acres** of land. The Plaintiff had to contend the anxiety

arising from the threat of eviction. In the premises, I consider an award of Ugx $120,000,000/$ = as appropriate in the circumstances of this case.

- e) Exemplary damages - [47] In Ahmed Termewy Vs Hassan Aludi & Ors, HCCS No.95 of 2012, exemplary damages were held to be an exception to the rule that damages generally are awarded to compensate the injured person. These are awarded to punish, deter, express outrage of court at the defendant's egregious, high handed, vindictive, oppressive and/or malicious conduct. In the instant case, the defendants caused a forceful survey of the suit land, had the Plaintiff, his nephew, the L. C1 chairman of the area arrested and incarcerated in police cells on false allegations of theft of the surveyor's tools to give way for the illegal survey of the land. This was egregious and high handed. In the premises, I consider exemplary damages of Ugx 20,000,000/= as appropriate.

#### f) Interest

[48] The general and exemplary damages are to carry an interest rate of 24% **p.a** from the date of judgment till payment in full.

#### g) Costs of the suit

[49] Under S.27 of the CPA, costs follow the event. The Plaintiff as the successful party is awarded costs of suit and the counter claim.

Dated this $9^{th}$ day of August, 2024.

**Byaruhanga Jesse Rugyema JUDGE**