Nyamahunge v Kaahwa Mbabazi (Civil Suit 83 of 2022) [2025] UGHC 104 (17 January 2025)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO. 0083 OF 2022 (Formerly MSD HCCS No.085 of 2022)

NYAMAHUNGE HARRIET ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### KAAHWA ROBERT MBABAZI ::::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

- [1 $\rightarrow$ ] In this suit, the plaintiff's action against the defendant is for a declaration that the plaintiff is the rightful owner of the suit land comprised in 3 plots of land situated at Kihuha-Biiso, Buliisa District and therefore, that she is the rightful person entitled to compensation from Uganda National Authority which land it identified and acquired for the Masindi-Biiso High way and had assessed its compensation. - It is the plaintiff's case that the plaintiff is the owner of the suit land $[2]$ developed with a commercial house which he solely obtained by way of purchase from a one Massa Solomon, paid the requisite plot allocation fees to Masindi District Local Government and has peacefully occupied and enjoyed the same without any hindrance or interference from the defendant for over 15 years. - That around 2017, the plaintiff's land and house fell under the Masindi-Biiso $[3]$ High way and the same was assessed in her names for compensation by Uganda National Roads Authority (UNRA) under the Government of the Republic of Uganda upon providing UNRA with proof of ownership. - That it was around November 2019 when the defendant heard about the $[4]$ compensation that he began claiming ownership of the suit land independent of the house. As a result of the defendant's claim, UNRA declined to pay the plaintiff the said compensation until the dispute of ownership of the land is

settled. The assessed compensation monies was deposited into the High court by UNRA vide Originating Summons No.1 of 2021.

- The plaintiff finally contented that the actions of the defendant amount to $[5]$ constructive trespass particularized as claiming ownership of the suit land alone independent of the commercial house thereon despite the plaintiff's possession, interfering with the plaintiff's possessory interest and stopping the plaintiff's payment by UNRA. The plaintiff prayed inter alia, for a declaration that she is the rightful owner of the suit plot of land, that the defendant is a trespasser and that she is the rightful beneficiary of the compensation from UNRA. - The defendant on the other hand, in his Written Statement of Defence and $[6]$ Counter claim denied the plaintiff's claims and contended that he is the sole owner of 3 plots of land at Kihuha-Biiso, Buliisa District which he bought on 16-2-2002 from Massa Solomon. - It is the defendant's case that the parties who were both civil servants working $[7]$ with Masindi District Local Government cohabited between 1986 and 2004 and during cohabitation, they produced children who have grown up and individually and jointly acquired various properties which included the 3 plots in Biiso that comprise of the suit land he acquired individually and a Plot of land at Nyanga Road, Masindi they acquired jointly. - The defendant lastly contended that in order for the plaintiff to defeat the $[8]$ defendant's ownership interest in the suit land comprised in the 3 plots at Kihuha-Biiso, fraudulently and falsely procured another sale agreement and being a person working with Accounts in Masindi District Local Government and Biiso Sub county, issued to herself a receipt for the defendant's 3 plots without notice, consent or knowledge of the Defendant. - In the Counter claim, the defendant prayed for inter alia, a declaration that he $[9]$ is the rightful owner of the 3 plots at Kihuha-Biiso purchased from Massa Solomon, the Commercial house on one of the plots is joint property and therefore UNRA Road compensation funds in respect of the commercial house be equally shared by the parties and the compensation in respect of the land of the 3 plots be paid to the defendant/Counter claimant.

- $[10]$ The parties filed a joint scheduling memorandum on 8/5/2023. From the joint pleadings of both parties and the joint scheduling memorandum, I find the following as undisputed facts of the case; - a) The parties who were both civil servants working with Masindi District Local Government cohabited as husband and wife from 1986 until 2004/2005 when they developed misunderstandings and separated. - b) During their cohabitation, the parties produced 6 children and individually and jointly acquired various properties which include the suit land comprised in 3 plots of land in Biiso-Buliisa District and a plot of land at Nyanga Road, Masindi District. - c) The Suit plot of land is partially developed with an incomplete commercial building and was ear marked by UNRA for construction of Biiso-Masindi High way Road and it was assessed for compensation in the plaintiff's name. - d) UNRA deposited the assessed compensation monies into Masindi High Court vide Originating Summons No.1 of 2021 pending determination of the pending dispute on ownership of the suit land between the parties. - [11] From both the pleadings of the parties and the scheduling memorandum by the parties the following issues are for the determination of this suit: - a) Who of the parties is the rightful owner of the suit land and therefore, the rightful person entitled to compensation of the suit land by UNRA. - b) What is the status of the plot of land at Nyanga Road Masindi. - c) What remedies are available to the parties.

#### **Counsel legal representation**

The plaintiff was represented by Ms. Lilian Kiiza of M/s Kiiza & Kwanza $[12]$ Advocates, Kampala while the defendant was represented by Mr. Lubega Willy assisted by Mr. Joachim Mutyaba both of M/s Lubega Babu & Co. Advocates, Kampala. Both counsel filed their respective written submissions for consideration in the determination of this suit.

- Issue No.1: Who of the parties is the rightful owner of the suit land and therefore the rightful person entitled to compensation of the suit land by UNRA. - [13] According to the plaintiff/**PW1**, she testified that she purchased the suit plots of land located at Kihuha-Biiso, Buliisa District on 23/4/2000 from Massa Solomon (PW2) without any monetary input from the defendant and even paid the requisite plot allocation fees to Masindi District Local Government as per P. Exh.1 (the sale agreement) and P. Exh.2 (the plot allocation fee receipt). That within the year 2004, she started constructing thereon a commercial house which she partially completed in 2006 in around 28/6/2017. UNRA ear marked the said land for the Masindi-Biiso High way Road affecting the commercial building thereon and subsequently, she was assessed for the compensation in her name, having provided proof of ownership as per P. Exh.5 (A letter of introduction from the vendor who was also the L. C1 chairperson of the area) and P. Exh.6 (The UNRA assessment form accordingly endorsed by the vendor as the area L. C1 chairperson). That around November 2009, the defendant began levying claims of ownership of the suit property, particularly the land upon hearing about the compensation. - [14] The plaintiff contended that the suit property was acquired and developed by herself upon which she asked her brother to occupy it because the defendant had parted with her since 2005 and therefore, that she had been in permanent occupation of the suit plots of land peacefully for over 15 years without any interference from the defendant or other 3<sup>rd</sup> parties. - [15] The plaintiff's evidence was supported and corroborated by the evidence of Massa Solomon (PW2) who was both the vendor of the suit land and the area L. C1 chairperson. - [16] The defendant (DW1) on the other hand testified that he purchased the suit land comprised in the 3 plots of land from the same Massa Solomon (PW2) as per the agreement of sale (D. Exh.2) allegedly endorsed by the plaintiff as a witness whereon the parties jointly constructed a commercial building. Lastly, that on 28/10/2004, the parties had a meeting with a one Jack Byaruhanga, the Ag. ACAO, Buruli Sub county, Masindi District Local Government which culminated into a reconciliatory document authored by the said Jack

Byaruhanga dated 31/10/2004 where the plaintiff was offered the 3 suit plots of land but she rejected them on the ground that they were in the names of the Defendant and therefore, she felt uncomfortable to take them over $(D. Exh.7)$ .

[17] The task for this court therefore is to determine therefore, of the 2 agreements held by the parties respectively, the one that conferred interest to either party. I shall begin with the defendant's purchase agreement which appear to be controversial.

# a) Defendant's purchase agreement dated 16-2-2002 (D. Exh.2)

- [18] According to the vendor, Massa Solomon (PW2), he sold the 3 suit plots of land to the plaintiff on $23/4/2000$ at a consideration of Ugx 1,200,000/= and the plaintiff has since been in occupation of the suit plots of land on which she constructed a commercial house. PW2 asserted in his witness statement that he has never dealt in any transaction with the defendant and hence he was not aware of the defendant's interest in the suit land. - [19] The defendant (DW1) on the other hand testified that he individually purchased the 3 suit plots of land from the said Massa Solomon (PW2) on 16-2-2002 at a consideration of Ugx 1,200,000/= which was witnessed by his brother a one **Bitande Stanley** and the plaintiff herself. The plaintiff admitted endorsing on the agreement but explained that she was called to endorse on it and she merely did so because she was demanding for the plot from the defendant. That she found document (D. Exh.2) already written and she signed it. - [20] Indeed, during cross examination, the vendor, Solomon Massa (PW2), though he admitted knowledge of the document dated 16-2-2002 (D. Exh.2), he explained that he sold the 3 suit plots of land to the plaintiff and that by the time he wrote it, it was in the absence of the parties implying that thereafter, it was sent to the parties for endorsement. The above corroborates the evidence of the plaintiff that indeed, she found the document (D. Exh.2) already written and she was merely called upon to come and endorse it. As per Massa Solomon (PW2), the vendor, he received the consideration from the plaintiff.

[21] The above clearly show that Solomon Massa (PW2) was manipulated to prepare and issue out the Defendant's purchase agreement (D. Exh.2) and further evidence to this, is that neither PW2 as the vendor nor the defendant as the alleged purchaser endorsed the alleged transaction of the sale of the 3 suit plots of land to the defendant.

## b) Plaintiff's purchase agreement dated 23-4-2000 (P. Exh.1)

- The above plaintiff's agreement (P. Exh.1) predates that of the defendant $[22]$ (D. Exh.2). The vendor of the suit land, Massa Solomon (PW2) owned it. It was duly signed by both the vendor, Solomon Massa (PW2) and the plaintiff as the purchaser. The **plaintiff** and the vendor confirmed the transaction when the vendor (PW2) introduced the plaintiff as the owner of the plots to UNRA during the survey of the land for its acquisition by Government for road construction of Masindi-Biiso High way Road (P. Exh.5). - In the instant case therefore, in the absence of the vendor's signature, coupled $[22]$ with the vendor's insistence that he has never dealt with the defendant as regards the 3 suit plots of land and only confirmed that he sold the suit plots of land to the plaintiff, I find that the Defendant's purchase agreement dated 16-2-2002 (D. Exh.2) suspect and therefore of no evidential value. The defendant's purchase agreement did not confer an interest of the 3 suit plots of land to the defendant. In the premises, Beatrice Mbabazi's (DW2) evidence as regards this agreement remains of no help to the defendant. The plaintiff's purchase agreement (P. Exh.1) is valid and accordingly conferred upon her interest in the 3 suit plots of land. The defendant's purchase agreement (D. Exh.2) which is suspect by virtue of the fact that neither of the parties to it endorsed it conferred no interest to the defendant. - Counsel for the defendant submitted that the plaintiff procured the purchase $[23]$ agreement of the suit plot (P. Exh.1) through fraud. It is the law that fraud must be specifically pleaded and strictly proved and the standard of proof is higher than on a balance of probabilities, Kampala Bottlers Vs Damanico (U) Ltd, SCCA No.22 of 1992. - In the instant case, though the plaintiff admitted during cross examination $[24]$ that all the witnesses to her agreement (P. Exh.1) never themselves wrote their names, it is evident from the document itself that each of the witnesses signed

the document. They each needed not individually write their names on the agreement. It is also true that the plaintiff admitted that by virtue of her being an employee of Masindi District Local Government in the Accounts, she is the one who issued to herself the plot allocation fees receipt. In my view however, this receipt is not proof of purchase of the land. It is proof of payment of revenue to the District and it does not therefore override the plaintiff's purchase agreement or render it suspicious or invalid.

- [25] Counsel for the defendant submitted that the defendant (DW1) led evidence that the vendor, Massa Solomon (PW2) had earlier made a witness statement in an earlier suit which was filed by the plaintiff against Robert Mbabazi & UNRA -MSD C. S NO.23 OF 2020 before the Chief Magistrate's court of Masindi (D. Exh.12) where the said Massa Solomon (PW2) stated that the 3 plots were sold to the defendant. That therefore, that is evidence that agreement (P. Exh.1) was fraudulently acquired by the plaintiff in connivance with Massa Solomon (PW2). - [26] I find that in the instant case, during cross examination, **Solomon Massa** (PW2) as regards his alleged witness statement (D. Exh.12) made in MSD C. S No.23 of 2020, it was not put to him so as to discredit both his evidence and the plaintiff's purchase agreement itself. Besides, the agreement the defendant was relying on in MSD C. S NO.23 OF 2020 before the Chief Magistrate's court is the same agreement (D. Exh.2) this court has found suspicious for lack of the vendor and the purchaser's signatures. - [27] Counsel for the defendant submitted relying on the letter by the plaintiff to Byaruhanga Jack the Ag. ACAO regarding her rejection of the said Byaruhanga's reconciliatory and mediation attempts of the parties regarding their properties (D. Exh.s 6 & 7) where the plaintiff claimed that she was uncomfortable to take over the said 3 plots because they were in the names of the defendant. - [28] I find that both **D. Exhs.6 & 7** being a result of reconciliatory and mediation proceedings before the Ag. ACAO, they cannot be used against the plaintiff because during reconciliation and mediation, it is a give and take and parties are entitled to make concessions that may not necessarily reflect the truth. Admissions and denials made during and failed reconciliation or mediation sessions are not binding on the parties. Therefore, I am not persuaded that

both D. Exhs.6&7 are of any evidential value to satisfy the strict proof required in proof of fraud.

[29] In conclusion, I find that the plaintiff has adduced cogent evidence that she is the rightful owner of the 3 plots of land with the commercial house thereon situated at Kihuha-Biiso, Buliisa District and no evidence was adduced by the defendant to prove that the plaintiff procured her purchase agreement of the same through fraud. As a result, I find that the plaintiff is the rightful person entitled to compensation of the suit land from UNRA.

# Issue No.2. What is the status of the plot of land on Nyanga Road, Masindi.

- [30] It is apparent from the pleadings and evidence on record that the plot or house at plot 17 Nyanga Road Masindi were jointly acquired by the plaintiff and defendant during the period they were cohabiting and produced 6 children together. The purchase agreement of the plot was admitted as D. Exh.1. - [31] It is the defendant's prayer in the counter claim that the plot 17 Nyanga Road, Masindi be sold under a court order and the parties share the proceeds. It is evident from the record as admitted by the plaintiff during cross examination that the parties used to cohabit together as husband and wife and produced 6 children out of the cohabitation of which the last born or youngest is a one Atuhaire Angela Jovia aged 24 years. Upon misunderstandings, the parties separated in around 2005. The defendant married another wife in the house in plot 17 Nyanga Road jointly owned by the parties but the plaintiff chased the defendant and the new wife out of the property and occupied it. It is therefore apparent that though the parties jointly own the property, they cannot jointly utilize it. The defendant's prayer which the plaintiff has not contested, that the property be sold and they share the proceeds appear to be fair or just in the circumstances and therefore, the only viable option suitable for the parties. - [32] In the premises, I accordingly order that the property comprised in Plot 17, Nyanga Road, Masindi jointly owned by the parties be sold and the parties share the proceeds.

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

- [33] Judgment is entered in favour of the plaintiff with the following declarations and orders: - 1. The plaintiff is the rightful owner of the 3 suit plots of land situate at Kihuha-Biiso Buliisa District and therefore, she is the rightful person entitled to the UNRA compensation of the land. - 2. It is ordered that the UNRA compensation sum deposited in Court vide Masindi H. C O. S No.1 of 2020 be paid to the plaintiff. - [34] The Defendant's Counter claim succeeds in part and therefore judgment in the counter claim is entered with the following declarations and orders: - 1. The property comprised in Plot 17, Nyanga Road, Masindi is joint property to the parties. - 2. It is ordered that the joint property at Plot 17, Nyanga Road, Masindi be sold and the proceeds be shared equally by the parties. - [35] No order as to costs is made for the reason that the parties have children together and there is room for them to reconcile hence the need for court not to escalate the pending conflict with costs.

Dated this 17<sup>th</sup> day of January, 2025.

Byaruhanga Jesse Rugyema **IUDGE**