Nyamaibunga v China Railways No. 5 Engineering Group Corporation Limited and Another (Civil Suit 106 of 2022) [2024] UGHC 887 (19 July 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT HOIMA

**CIVIL SUIT NO. 106 OF 2022** (Formerly MSD HCCS No.04/2017)

BEYORA NYAMAIBUNGA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. CHINA RAILWAY NO.5 ENGINEERING GROUP CORP LTD 2. KADODOBA YOSIYA ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

- $[1]$ The Plaintiff's action against the Defendants is for trespass to land. compensation, general damages and special damages for trespass and consequential loss caused to the suit land and lastly, a permanent injunction to restrain the defendants and their agents from further excavating suit/murram from the suit land. Initially, the suit was against China Railway No.5 Engineering Group Co. Ltd (as the 1st Defendant), China Railway WUJU Group Co. Ltd (as the 2nd Defendant) and Kadodoba **Yosiya** alias **Hosea** (as the $3rd$ defendant). In the course of the trial, the $2nd$ Defendant was by consent of the parties struck out off the plaint. - $[2]$ It is the plaintiff's case that he is the owner of **land** measuring approximately 50 acres located at Katikara village, Kyabigambire sub **county, Hoima district** (the suit land) which he acquired from his late father, the late Balamu Miteto who also acquired the same in 1947 from Bunyoro Kitara Kingdom vide ownership Certificate No.4578 dated $17/7/1947.$

- By a lease agreement dated $16/4/2016$ , the 1st Defendant, China Railway $[3]$ No.5 Engineering Group Co. Ltd leased the suit land from the 2nd Defendant, **Kadodoba Yosia**, measuring 14.3 acres. It was agreed that the 1st Defendant would excavate soil/ murram from the suit land for a period of one year with the option of renewal. The $2^{nd}$ defendant later edited the said agreement by adding the elderly plaintiff's name and tricked him into signing it as a witness. - $[4]$ Pursuant to the agreement, the 1st Defendant through their servants or agents immediately cleared the said land by felling all trees and removing the soil's top layer and has since June, 2016 excavated the soil/murram from the said land in the course of which they have caused immense damage to it. - Lastly, that the leasing of the suit land and excavation of the soil/murram from the suit land was done without the consent and/or lawful authorisation of the plaintiff, his wife and children. As a result, the plaintiff contend that the defendants' conduct portraved is wrongful conduct and amounts to trespass and wrongful interference with the plaintiff's ownership and use of the suit land in respect of which the plaintiff is entitled to an order for injunction, compensation for trespass and punitive damages. - The defendants on the other hand denied the plaintiff's claims and averred [6] as follows: - a) The $1^{st}$ defendant entered into a lease agreement with the **plaintiff**, Kenyange Enid. Kabanyoro Harriet and the 2nd Defendant in respect of the land situate at Katikara village, Kyabigambire sub county, Hoima district (the suit land) in the presence of the L. C1 chairman of the area where the suit land is located. - b) Upon execution of the lease agreement, the $1^{st}$ Defendant took possession of the land undisturbed till around August 2016 when the plaintiff stated alleging trespass by the Defendants. - c) The $2nd$ defendant averred that he is a cousin to the plaintiff having been born by Kiiza Mukwonga who was a brother to the plaintiff's father, Balamu Miteto.

- d) That the $2^{nd}$ defendant's father and the plaintiff's father jointly acquired the suit land in 1945 and the two brothers (Kiiza Mukwonga and Balamu Miteto) divided the said land and each with his family have been using and living in their respective pieces since 1945 to date but while respecting a common boundary. - e) That the $2^{ad}$ defendant never edited the said lease agreement as alleged but the said agreement was only filled in by the lessee in presence of the plaintiff and the local authorities and other witnesses.

## **Issues for determination**

# **Counsel legal representation**

The plaintiff was represented by Mr. Simon Kasangaki of M/s Kasangaki $[7]$ & Co. Advocates, Masindi while the $1^{st}$ defendant was represented by Mr. Kinali Albert and the $2^{nd}$ defendant was represented by Mr. Christopher **Mwebaza.** The counsel filed their respective submissions for consideration in the determination of the suit.

## **Burden and standard of proof**

**S.101 of the Evidence Act provides that whoever desires any court to give** $[8]$ 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 and the burden of proof lies on that person. In Sebuliba Vs Cooperative Bank Ltd [1982] HCB 129, it was held that the burden of proof in civil proceedings lies upon the person who alleges and the standard of proof is on a balance of probabilities. at ot it in a definition

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$[9]$ In the instant case, relying on the above principles, the burden of proving that the suit land belongs to the plaintiff and that the defendants trespassed on the land thereof is on the plaintiff.

### **Resolution of Issues**

- 1. Whether the plaintiff is the lawful owner of the suit land. - 2. Whether the defendants have without lawful authorisation interfered with the plaintiff's use and possession of the suit land permanently damaging it. - [10] Counsel for the plaintiff submitted that the plaintiff adduced evidence through his son, **Wobusobozi Boaz** (PW1), a holder of powers of attorney for the plaintiff that the suit land measuring approximately 50 acres was inherited by the plaintiff from his father Balamu Miteto who in turn, acquired it from Bunyoro Kitara Kingdom in 1947 vide ownership Certificate No.4578 dated 17/7/1947 (P. Exh.2). That the family of the late Balamu Miteto have since been in possession and utilisation of the customary suit land where they indiscriminately grow crops and construction of their houses. That upon the $2^{nd}$ leasing the suit land to the $1st$ Defendant for excavation of murram on 14.3 acres (P. Exh.3), the plaintiff being elderly, illiterate, blind and frail, his name was in a tricky way included amongst the land owners on the lease agreement. - [11] Counsel submitted that the lease agreement is in English and did not bear a certificate of illiteracy or translation as required by law for illiterates, see Illiterates Protection Act. Counsel concluded that in the absence of any evidence controverting the plaintiff that he is illiterate, it was not proved that the agreement was translated to the parties in vernacular by way of addition of a Certificate of translation and therefore this rendered the agreement unenforceable against the plaintiff, see Stanbic Bank of Uganda Ltd Vs Ssenyonjo Moses, CACA No.047 of 2012. - [12] Counsel for the $2^{nd}$ defendant on the other hand submitted that the $2^{nd}$ defendant's father Kiiza Mukwonga acquired the suit land with the plaintiff's father, **Balamu Miteto** in 1945 and upon taking possession, they

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had a common boundary and each utilised his respective piece of land. That the $2^{nd}$ defendant is the rightful owner of the suit portion of land measuring 14.3 acres.

[13] Upon perusal of the parties' pleadings and their evidence on record, I find that it is not in dispute that the $2^{nd}$ defendant leased out a portion of the suit land measuring 14.3 acres to the 1st defendant for excavation of murram as per **P. Exh.3**. **PW1** testified as follows:

> ".....the plaintiff's father (my grandfather) Balamu Miteto had allowed his brother Kiiza Mukwonga ( $2^{nd}$ defendant's father) to settle on the suit land. That to date the children of Kiiza Mukwonga to wit; Kaliisa peter and the $2^{nd}$ defendant stay on the customary land. That throughout my childhood to date the family of the late Balamu Miteto to which I belong and that of Kiiza Mukwonga where the 2nd defendant belongs have since been in possession and utilisation of the customary land measuring approximately 50 acres indiscriminately for growing crops and *construction of houses."*

The $2^{nd}$ defendant/DW1 on the other hand testified thus: "The suit land forms part of the estate of the late Kiiza Mukwonga, my father.... Kiiza Mukwonga acquired the suit land with one Balamu Miteto and all settled on the said land. Immediately upon occupation in 1945, they separated the said land and put a common boundary between the two brothers. That each had a house in his respective piece and no one would use the others land."

$[14]$ Clearly the above evidence point to the fact that the suit land is jointly owned by the families of the late **Balamu Miteto**, father to the plaintiff and the late Kiiza Mukwonga, father to the 2nd defendant. The plaintiff however claims that there is no established common boundary and/or demarcations separating the 2 families while the $2^{nd}$ defendant assert that a common boundary was put in place to separate the 2 brothers. Indeed, upon locus visit, the $2^{nd}$ defendant was not able to show any evidence of the boundary between the parties vis a vis the site where the murram was being excavated. There were no homes or evidence of land use within the alleged 14.3 acres of land where murram was excavated so as to assist court

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identify the format of the homes and land use for purposes of ascertaining a common boundary.

- [15] As a result of the above, I find that the suit portion of land was under a common use by both families of the late Balamu Miteto and Kiiza Mukwonga. - [16] The $2^{nd}$ defendant however contend that prior to the leasing of the suit portion of land, he called a family meeting which included the plaintiff and all the members agreed to leasing the land at shs.7,150,000/ $=$ as per **P. Exh.3.** That the plaintiff endorsed on the lease agreement in the presence of the L. C1 chairman after it had been interpreted from English to Runyoro. On record however, there is no evidence that this translation was done in the absence of a certificate of translation being attached though again. there is no evidence that the plaintiff was or is actually illiterate. According to the $2^{nd}$ Defendant, the plaintiff is literate for he has ever worked with Ministry of Works, Hoima. This was not denied by his son PW1. Indeed, the plaintiff does not deny signing on the lease agreement but claim to had been tricked to do so because of his old age. PW1 testified during cross examination thus:

"*My father used to be literate in reading and writing -as of now* he is blind and cannot even see. He could read and write but never understood English. I don't know the level of his education. By the time of the Rent Agreement in 2016, my father was *not blind..... I was not present during the execution of the* agreement."

- [17] The above evidence, coupled with the fact that the plaintiff, Beyora **Nyamaibunga,** himself did not testify to deny that he is literate leads to the finding that there is no evidence that the plaintiff was illiterate in the lease English and therefore endorsed agreement without understanding its contents. The **Illiterates Protection Act Ss.2 & 3** thereof cannot come to his aid. - [18] In conclusion, I find that the parties mutually own and utilise the suit portion of land they inherited from their respective parents who were brothers. The family agreed to the leasing of the suit land to the 1st Defendant at $Ugx$ 7,150,000/=. The 2nd defendant asserts that the plaintiff

was paid his share of Ugx 950,000/=. However, in the event that he may have never received or paid his share, the plaintiff has the option of pursuing the $2^{nd}$ defendant for recovery of his share. Since the $2^{nd}$ defendant admit leasing land that was jointly owned land and receiving the proceeds, the plaintiff is entitled to the share of the proceeds of the lease of the land.

[19] As a result of the above, in the premises that the suit land was mutually owned by the 2 families of Balamu Miteto, father of the plaintiff and Kiiza Mukwonga, father to the $2^{nd}$ defendant and the leasing of the land was endorsed by the plaintiff, an action of trespass cannot stand. As was held in Hannington Njuki Vs G. W. Musisi, HCCS No.434 of 1996 [1999] KALR 779, trespass to land is committed inter alia, where a person wrongfully takes possession of or takes materials from land belonging to another person. The Bunyoro Kitara certificate of ownership of land P. Exh.2 without showing the acreage and specifying the suit land is not evidence that the plaintiff's father was the exclusive owner of the suit land. I find that the plaintiff has not proved his case that he is the exclusive owner of the suit land allegedly trespassed on by the defendants. The suit land is mutually owned by the 2 families of the parties.

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

- [20] Counsel for the plaintiff submitted that the Defendant in any event should have restored the suit land by filling up the murram pit created on the suit land. That failure to restore the burrow pit itself was actionable and entitled the plaintiff to damages, see Dr. Henry Kamanyiro Vs Roko Construction Ltd, CACA No.5 of 2005. - [21] I agree. Under Ss.67 & 71 of the National Environment Act, the 2nd Defendant would be responsible and liable to restore the land back to the state in which it was before the excavation. This is however not a case for Environmental restoration order. This claim for restoration was not part and parcel of the plaintiff's pleadings. The plaintiff cannot be allowed to depart from his pleadings; Semalulu Vs Nakitto, HCCA No.04 of 2008 and

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Interfreight Forwarders (U) Ltd Vs E. African Development Bank, SCCA No.33 of 1992.

[22] In the instant case, the plaintiff having been found to had failed to prove his case, the suit is liable for dismissal. The suit is accordingly dismissed with no order as to costs since the plaintiff and the $2^{nd}$ Defendant are cousin brothers in mutual utilisation of the suit land but are merely fighting for the proceeds of its lease. The 1st Defendant also appears to had not ensured that each of the beneficiaries of the proceeds of the lease individually got his/her share of the money.

Dated this 19th day of July, 2024

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Byaruhanga Jesse Rugyema **IUDGE** $\mathbf{L} = \mathbf{R} \mathbf{L} \mathbf{L} \mathbf{L} \mathbf{L}$

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