Obeke and Another v Katushabe (Civil Suit 517 of 2020) [2025] UGHCLD 1 (6 January 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION**

#### **CIVIL SUIT NO. 517 OF 2020**

### 1. OBEKE TOM 2. AGUTI MAGDALEN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

KATUSHABE LAWRENCE ::::::::::::::::::::::::::::::::::: Before: Lady Justice Alexandra Nkonge Rugadya:

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#### **JUDGMENT:**

#### **Introduction:**

- The plaintiffs filed this suit claiming that on the 5<sup>th</sup> May, 2006, they jointly 15 purchased the suit kibanja situate at Kirinya Kito Zone, Wakiso district, measuring $73x57x73x57ft$ , together with an unfinished house (suit property land) from the late Dorothy Opio who had acquired the same from Mr. Isima Senfuma. - That upon purchase of the suit land they took immediate possession by planting 20 banana plantation and constructing an entry gate on the same. They enjoyed undisturbed vacant possession of the land until around late February, 2020, when the defendant illegally trespassed on the suit by maliciously cutting and destroying the banana plantation, pouring construction materials on top of the - plaintiff's materials and demolishing the entry gate while purporting to be the 25 owner of the suit land, which acts amounted to trespass on their land and filed this suit seeking.

They filed this suit therefore seeking declarations and orders that the suit kibanja belongs to the plaintiffs and that the defendant is a trespasser to the suit

(Julos

property; general, special damages $of$ $Ugx35,000,000/=:$ and punitive/exemplary damages; among others.

During the pendency of the suit, the plaintiffs applied for and obtained a temporary injunction on 30<sup>th</sup> December, 2020 which maintained the status quo, restraining the defendant/respondent or anybody deriving a right thereof from disposing of, damaging, interfering, trespassing, constructing on the suit land until determination of the main suit which order is still in force.

In what appears to be a counterclaim, the defendant raised particulars of fraud, contending that the plaintiffs relied on forged purchase agreements, purportedly

signed by Dorothy Opio and Isima Senfuma; and that between Opio as the vendor 10 and the plaintiffs, purportedly as buyers, yet the defendant continued to supervise the construction of the house of the late Dorothy up to 2009.

That they stopped keeping construction materials at the plaintiffs' house after discovering that the plaintiffs kept stealing them as they were also constructing

their own house in the neighbourhood. 15

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That the plaintiff started planting crops on the suit land to make claims over the land without authority; took photos of the defendant's agreement at the Kira Division Police in order to forge the same; and closed the water taps which they never connected to the suit land.

- That the said actions by the plaintiffs were intended to grab the suit property $20$ which caused the defendant pain anguish and inconvenience and in respect of which they sought special damages of *Ugx 8,276,000/=*; and a permanent injunction restraining the plaintiffs/agents from further claiming, using and/or interfering with the defendant's use of the suit land. - The plaintiffs did not file a defence to the counterclaim. 25

What g

## ReoreSentation:

The plaintiffs were represented, by M/s Bgtelex Adnocdtes. The defendant was represented by M/s Piuang & Co. Adaocates.

## Aqreed facts:

5 The agreed facts were that the suit land comprised of a kibanjasituate at Kirinya, Kito Zone, Wakiso district was originally owned by the late Dorothy Opio.

#### Issues.'

At the scheduling, four issues were raised for resolution by court:

- 1.) Who is the law;ful ourner of the suit land.? - 2) Whether the d.efend.ant/counterclaimant trespassed on the suit lqnd.? - 3) Whether the plaintiffs/counter defend.ants trespassed. on the suit land? - 4) Remedies aaa:ilable to the parties.

## PRELIMINARY OBJECTION:

20 At the hearing of the plaintiffs'case, counsel for the defendant/ counter claimant sought to rely on an audio recording (DExh.l) as evidence before court. An objection was raised as to the admissibility of this recording upon which this court directed parties to submit on the objection.

25 The basis by the plaintiff for the objection was that the recording did not pass the authenticity test under sectio n 7 oJ the Erectronic Transactron Act, cap 99.

Counsel referred to sectton S (1) oJ the Electronlc Transactions Act, Cap <sup>99</sup> which permits the admissibility of evidence in the form of a data message, which the impugned recording falls under.

The test of authenticity of such evidence however as spelt out under sectlon Z of the same Act is determining whether or not the information has remained complete or unaltered.

5 Counsel cited Kakonge Umar as tlganda, Criminal Appeal No. OO99 of 20 18. The Court of Appeal in that case rejected an audio recording with huge parts that were found incomprehensible. court found that the electronic evidence sought to be tendered in evidence should be clear, unequivocal and selfexplanatory and substantially comprehensible.

However, that in the instant case, large portions of the recording were completely incomprehensible, meddled with great background noise and inaudible dialogue. Such could not guide court to understand the transmission specifically, where the 1st plaintiff was presumed to have been submitting. 10

In the second part ofthe objection, that the recording offends section a8 of the Civil Procedure Act, Cap,282, which requires all court recordings to be in English, a mandatory provision which equally applies to recordings sought to be relied on as evidence and therefore by implication, court must receive in evidence an interpreted version of the rccording in English.

## Consideration bg court:

\n Olega as Alidriga (Civil Appeal No. O0O6 of 2O1O) as cited by counsel, the court held and I do agree, that the ultimate test of audibility and intelligibility is whether the party offering the recording has been able to produce a transcript of the recording which accurately reflects the recording,s contents. It ought to be translated in English. 20

In the present case however, DExh 3 was a recording which was majorly in Luganda language with only a few excerpts in English ianguage and even those few were incoherent and inaudible, with interrupting noises in the background. 25

Furthermore, the storage of the data was not clear. court also noted also that neither the actual names of the parties nor the actual area in dispute were

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mentioned in those parts which were sufficiently audible. The deience did not however make any submission on the objections raised, implying that they acknowledged the shortcomings ofthe evidence as tendered in court.

As correctly submitted by the plaintiff, such evidence could not offer proper guidance to court to enable it make a fair decision. It was accordingly expunged from the record, for failing to pass the test of clarity and authenticity, as mandated by law.

On those grounds, the objection is accordingly upheld.

I now proceed to consider the merits of this case.

## 10 Issue lvo. 7:Who is the lautfitl outner of the suit land: Analusis 9f the laut:

By virtue of section 7o1 of the Eoldence Act whoever desires any court to give judgment as to any 1ega1 right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

section r o3 further stipulates that the burden of proof as to any particuiar fact lies on that person who wishes the court to believe in its existence. 15

As declared by the Supreme Court in its decision Justine E. M. N Lutaaga Vs sterling civil Engineering co. Ltd scAA No. 17 of 2oo2, rrespass as alluded to in the present case, occurs when a person makes an unauthorized entry upon land and thereby interferes, or potends to interfere with another person's lawful possession of that land.

Needless to say, the tort of trespass to land is committed not against the land but against the person who is in actual or constructive possession of the 1and. It is also important to note at this stage that at common 1aw, the cardinai rule is that only a person in possession of the land has capacity to sue in trespass.

As also stated in Tageba GeolJreg and Anor as Kaglmi. EICCS .l\Io. 77 of 2012, (citing OJuang us Wlson Bagonza CACA No. 25 of 2OO2), for one to claim

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interest in land he/she must show that he/she acquired interest/title from someone who previously had interest/tit1e thereon.

The same principle was espoused in the case of Sheik Mohammed Luboua as Kitara Bnterprise Ltd, HCCA No. 4 of 7987 tinat trespass to land is constituted where entry onto the land by the defendant was without the consent of the owner.

Thus in order to prove that trespass was committed, it was incumbent on the affected party to show that the disputed land belonged to him; that the defendant had entered upon that land; and that the entry was unlawful in that, it was made without his permission; or that the defendant had no claim or right or interest in the 1and. (Shetk Muhannmed Lubouta uersus Kitara Enterprlses Ltd C. A

## Analusis of the etidence:

No.4 of 7987).

In the instant suit, it is the plaintiffs case that they were the lawful owners of the suit property, having purchased the same from the late Dorothy Opio, who was the previous owner of that 1and.

The plaintiffs relied on the evidence of two witnesses: Purf, 15" 1st plaintiff, also a maternal cousin to the late Opio claimed that in 2OO4 his late cousin had approached him looking for a piece of land to purchase for her residence.

That a broker by the name of Badru Kiyaga had connected her to one Isima Senfuma who was selling his plot of 1and. Together with Senfuma they inspected the land and agreed on the sum of Ugx 5,5OO,OOO/=. 20

PExh 2 was tendered in as the agreement dated 4ft Ju1y, 2004 made between Isma Senfuma and the late Dorothy Opio. The name of the 1st plaintiff, ProI appeared as one of the witnesses to that transaction.

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In cross examination, the defendant who testilied as DutT admitted that he knew that the 1st plaintiff had indeed assisted Ms. Dorothy Opio to purchase the suit land.

5 Since it was an agreed fact that the late Opio was the rightful owner of the kibanja at the material time, courts wouid consider the sale agreement, PExh 2 by which she had acquired ownership of the suit land in 2OO4 an undisputed document.

PExhT on the other hand is the purported sale agreement dated Stt May, 2006, alleged to have been signed between the late Dorothy Opio and the plaintiffs

(PExh 1), for the same land measuring 73fi x 57 fi.x 23fi x 57, comprised in block 234 plot 2695 Kgadond.o Kiringa. 10

Put2 Mr. Arikod John had been a witness in that agreement. He informed court that he had known the plaintiffs for a period of 20 years; and that the late Opio had approached him asking him to be a witness to the sale agreement, dated Sm May, 2006 between her and the plaintiffs.

Upon inspecting the suit property to ascertain the boundaries and upon conclusion of the negotiations, the plaintiffs had executed a sales agreement with the late Dorothy Opro (PExh7 / and paid a total purchase price of tlgx SO,OOO,OOO/=.

<sup>20</sup> The said agreement reads in part:

2. That the uendor acknowledges receipt of Ugx 30,OOO,OOO/= as full and final pagment bg appending her signature at the exed)tion of this agreement.

However, that same agreement in paragraph 3 thereof, reads:

<sup>25</sup> 3. The uendor sholl upon paument of the bolancg mentioned in paraqraph 2 giue purchasers uacant possession of the propertg . . . .. (emphasis mine)

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<sup>A</sup>proper reading of paragraph 3 gives an impression (contrary to the provisions of paragraph 2 of the same of agreement), that the payment of the purchase price was never completed.

5 No attempts were made during the submissions by the plaintiffs side to clarify the inconsistencies and reconcile the two key paragraphs of the contract, thus leaving court wondering as to whether or not the entire consideration had been ful1y paid, if at all the transaction ever took place.

It was the plaintiffs' claim that no evidence was adduced by the defendant to put to doubt the validity or authenticity of the sale agreements (pExh I and pDxh 2/, as adduced by the plaintiffs.

Furthermore, that none of the six defence witnesses had witnessed the transaction between the deceased vendor and the defendant as the purchaser, which was tendered in court as DExh r. on the other hand, however that the witness to the sale agreement between the late opio and the plaintiff did attend,

and testified in court. 15

The validity of the sale agreement pDxh 1 between the plaintiffs and the late Opio was however put to test, in a number of other aspects:

under paragraph 3 of the alleged sare agreement, the deceased vendor was to give the plaintiffs access to all documents within her possession that would enable them to process the title, upon which they wourd be free to take possession and develop the property as deemed appropriate.

The said documents however remained in the possession of the defendant after the owner's demise. No consent/ transfer forms were presented to court to prove that such transfer of legal interest was made to the plaintiffs as promised.

<sup>A</sup>careful examination of the rest of the documents tendered in court tended to raise more questions than answers, particularly on the nature of the plaintiffs, status on the land. 25

According to PutT the defendant was a boyfriend to the late opio and indeed that after purchasing the land the defendant had met him on the land on a number of occasions but that he never raised any claim to the suit 1and, until the deceased passed on in January,2O2O.

The defendant on his part relied on the evidence of seven witnesses including himself, testifying as Dut7. He presented to court a hand written sale agreement DExh 7.

He claimed to have purchased the same land on 176 March, 2012, consideration ol Ugx 78,OOO,OOO/=, with the initial payment of 9,OOO,OOO/= paid on that same day, and balance completed in 2016. ata ugx

The purported agreement was signed by the deceased opio and the defendant in the presence of two witnesses, Kabbala Asumani and Akello Grace neither of whom, as noted by counsel for the plaintiffs appeared in court.

15 In 2018 (some 12 or so years after the plaintiffs had purportedly purchased the same piece of land), the defendant was introduced by the late vendor to the LC 1 Chairman, Steven Kayanja who signed and stamped the agreement.

It was the defendant's evidence that together they had visited the area to ensure that the measurements conformed to the ones as sold to the defendant and that thereafter, he had enjoyed uninterrupted ownership until 2019 when the neighbors whom he had appointed as care takers of the suit property were stopped by the plaintiffs, on the pretext that they were the caretakers of the suit property.

court observed that it was not until the LC leadership had raised concerns about the insecurity created by the bush growing around the unfinished property that

the plaintiffs started planting crops, claiming the property as theirs. That evidence comes out ciearly from paragraplLs 4,s, 6 and B of the evidence in chief of the LC 1 Chairman, Steven Kayanja who testified as Dut7.

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DutT in paragraph l5 of his statement clearly stated that following a complaint of trespass by the defendant, he had approached the 2-d plaintiff who admitted that she was using the land for cultivation, but that it was her husband who was in charge.

5 In support of the defendant's case, he also referred to the meeting which had been convened by him as the LC 1, by which it was alleged to have been resolved that the plaintiffs would remove the crops which they planted.

It was in that meeting that the lst plaintiff had asked for compensation from the defendant, alleging that he had kept the suit property for him, which request the defendant had turned down on the basis that he had never asked the 1st plaintiff

to do so.

2\

DE'xh 2 which was tendered in court as the letter titled: Trespass on Mr. Katusabe Lanurence's plot, addressed to the l"t plaintiff, signed by him, jointly with General Secretary, dated 16ft November,2019 reads:

- Mr. Katusabe La utrence (defendant) reported gou...that gou trespassed. on his plot uithout his notice or knoraled-ge. He gaue maam Babra Natukund.a to look after that plot duing his absence but gou forcefutty used. it for growing gour maiz,e. We called gou here on that issue and uou told us that land or plot is not uours but crops onlu. kmp hasis mine). 15 - No,L Mr. Katusabe the plot ouner wants his plot in December lst / 2 o 1 g. you are aduised to remoue Aour crops utithin 14 doys from date aboue. Remember you trespassed on someone's lond. no more notice on fhis issue 20

The specific contents of that letter which was a form of notification to the 1st plaintiff requiring him to remove his crops from the suit land, were never challenged by the plaintiffs.

By that letter, DwS Natukunda Daphne a neighbor, had been mentioned as care taker of the suit premises, having been appointed by the defendant to keep an eye on the suit property during his absence, which appointment she

10 \J'"e acknowiedged in her evidence in chief. The said witness testified that she had lived on the plot for 2O years, as an immediate neighbor to the suit property.

The plaintiffs did not lead any evidence to show that during that time, they had been introduced to her or even known by her (or the rest of the neighbours for that matter) as the rightful owners of the suit property.

The defendant also presented to court a copy of the approved building plans for the house, DExh 8. DExh 9 was the development Registration form dated 23rd January, 2OO5. DExh IOis the general receipt for the plan assessment reflecting a sum of Ugx 244,764=, paid by the late Opio on 27b Aprll,2OO5.

DExh 7 7 were documents signifying that transfer process had been commenced between the registered owners as vendors and the deceased, though evidentiy the details of the suit land and its measurements had not been included. 10

Thus contrary to what was stated in the piaintiffs' purported agreement with the deceased, the said documents which were so crucial to this transaction were

never transferred to the plaintiffs after the purported purchase of the suit property. 15

It was important for the plaintiffs to prove to court that after they had purchased the suit property in 2006, attempts had been made by them to request for the said documents from the deceased herself or from the defendant to enabie them obtain vacant possession, in compliance with their aileged agreement with her.

Without such proof, it is therefore tempting to believe that the agreement may have been signed between the plaintiffs and the deceased, but no consideration was ever paid by the piaintiffs for the execution to be effected / completed.

Other defence witnesses were Du4, Luyimbazi Mohamed Mbowa a neighbor who lived in that area since 2005. These also confirmed the defendant as the rightful owner of the suit property. 25

JPvu 11, \

Another witness for the defence was Dar6 william Kawuma. In his evidence he stated that in November, 2019 he had made quotations for the roofing of the suit property for the defendant.

During that time, t},e 2nd plaintiff had presented herself to him, not as an owner but as a mere care taker who had showed interest to acquire the suit property.

He had this to say in paragraph 9 of his evidence in chiet

9. That the 2"d plaintiff also asked me if I kneut when Laturence purchased. the suit land and I told her ond she also asked. me if I knew Dorothg opio and she complained about Dorothu's sale of the suit land to Lanarence uthen <sup>10</sup> her husband Tom Obeke uho is a relatiue ofDorothu had made his interest to purchase the suit land knoun to her. [emp hasis added).

In paragraph 1O:

That she also told me that Dorothy used- to mention crazu sale p.ces to her and her husband She mentioned to me that Dorothu had told her husband she taos

15 sell at Uqx <sup>35</sup> 000.000/ tahereas her husband had onlu Uqx 25. O0 <sup>o</sup> 000/ <sup>=</sup> ln paragraph 15

.....she told me she had been lookinq after the said land in dispute for ouer <sup>12</sup> uears and that the plot could become hers (emp hasis added).

In paragraph 18:

<sup>20</sup> That the 2nd plaintiff then said Lautrence (d.efend ant) had relaxed and she was caretakinq the suit land.

\n paragraph 23:

That the 2"d <sup>p</sup>Iaintiff still insisted she needs to be compensated u.tith some qood moneu as she had been on the suit land for 12 uears.

Dut6's evidence above so critical, was never challenged 25

JrvU1, 2

Another witness, opio Festus, a brother to the late Dorothy opio testified as Dut2. He stated that 1"t plaintiff though a cousin to the deceased never visited her when she was sick.

5 His evidence made it clear that in 2oo9 the deceased had identified some land in Bukasa and that it is the year in which she decided to stop construction at Kirinya and buy the Bukasa iand instead. His unchallenged evidence was also sufficient proof that the person to whom his sister had sold the land was the defendant, but not the plaintiffs.

According to him, the deceased passed away on 156 January, 2O20 and was buried on 18ft January, 2020. Around then, the 1st plaintiff started depositing materials on the site-10

It was also his further testimony that at the time of her death it was the defendant who was known to the family as the owner of the suit land; that he was peacefully using it only to learn later that the plaintiffs were also making simiiar ciaims of ownership.

Paragraph 16 of his evidence in chief, corroborated by that of the rest of the defence witnesses was proof to this court that the plaintiffs initially considered their status on the suit property as that of care takers whereas not, and that their intention had been to acquire the suit property, a task which apparently

they never accomplished. 20

> court's conclusion was backed by the evidence led by Dar5 Aloysius ssekiwunga which was quite crucial. As a mason at the site he commenced construction works at opio's site in 2o05; and stopped working in 200g. It is worth noting that he stopped working at the site two years after the purported purchase of the

suit property by the plaintiffs. 25

> The defendant who was known to the said witness as the rightful purchaser of the suit property had also been his supervisor and it was him who during that

1,3

time paid for the construction services, providing him with the materials which initially kept at the plaintiffs' home.

The plaintiffs did not explain why they merely looked on as materials were being ferried from their home and deposited on the land and construction continued thereafter on the suit land which they had purportedly bought eariier.

They did not offer any explanation as to how the deceased and her agents could have continued with the work on the site, moreso under the supervision of the defendant without their (plaintiffsJ express authority/ approval, when the plaintiffs were not paying for his services or those of the workers; and why no complaint to that effect was ever registered by the defendant, the workers or the

plaintiffs themselves for the alleged trespass. 10

As duly noted by court, through the evidence ol Dutl and other defence witnesses when the dispute came up, the plaintiffs initially considered themselves as the caretakers, even sought compensation for the crops they had planted on that land.

In a strange turn of events however, they started claiming as owners. A careful examination of the summary of evidence itself attached to the plaint shows that no sale agreement was mentioned at the time as one of the documents to be relied on by them during the hearing.

As indeed submitted by the defence , this court was left wondering as to why the two sale agreements were not availed to the LC and police or even referred to prior to the filing of the suit or during the time when the matters were stili under investigation. 20

As also observed by court, the plaintiffs never took up physical possession after the alleged agreement with the deceased, at least not until much later when they started planting bananas, over 72 years after the purported purchase by them from the deceased. 25

1,4

whereas it is true that the defendant did not present proof of forgery of the sale agreements PDxh l and PExh 2, the above circumstances are sufficient to show court that something did not quite add up with the plaintiffs, assertions of acquisition of ownership.

- It was argued by the plaintiffs' counsel that in thc event that this court was to hold the defendant's sale agreement as valid, these were two competing equitable interests by which the first in time would take precedence, as was held in the case of Balamu Buetegaine Kiiza & Another as zephanra Kadooba Kiiza, CACA No. 59 ol 2OO9. 5 - Had that been the plaintiffs' genuine position in the present case, then nothing could have prevented them from suing the deceased herself, or following her death, adding the administrator(s) of her estate as party to this suit. 10

Failure to do so thus lends credence to the conviction by this court that the plaintiffs had no cause of action against the estate of the late opio since more

likely than not, and contrary to what put2 stated, in his evidence, they never actually paid for the suit property, as the purchase price had been prohibitive. (Refer to euidence of Dut6 under paragraph 10, as cited. earlier). 15

Besides, and with the greatest respect, the plaintiffs did not show consistency regarding their status on the suit 1and. The credible evidence on record demonstrates clearly that before the suit was filed their claim was ror compensation as caretakers.

Upon filing the suit in 2o2o, (at which stage they deemed it fit to present the sale agreements), they however changed their stance seeking instead a declaration of trespass against the defendant, this time as purported owners of the suit 25 premises

Yet it appears to have been an acknowledged fact that they were not even appointed caretakers by the deceased or later by the defendant. Besides, was the

fact that they were never known or introduced as owners to the Lcs or to any of

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the neighbors, some of whom testified as having lived in the neighborhood as early as 2003.

Going by the mere fact that it was not the plaintiffs but the defendant who in 2018 was introduced to the Lcs and neighbors by the late Opio herself as the owner of the suit property; and also given the fact that for a period of more than a decade after the alleged purchase the plaintiffs never took up possession or raise any complaint to the LCs or to the deceased about the work in progress, makes it more likely than not, that the defendant and not the plaintiffs had acquired valid interest in the suit property.

Court in Jennifer Nsubuga as Michael Mukundane dnd Anor CACA No, 2O8 of 2O18 made it clear that though not in statute 1aw, consultations with the leadership of the area where the land is located is very key in establishing that due diligence was carried out. 10

The principle equally applies to this present case if the question arises as to if, how and when the vendor formed the intention to se1l. In that respect, the evidence of Dut2 the deceased's own brother also remains uncontroverted. 15

According to him, the deceased decided to dispose of the property in 2009 and not any time earlier, and when she eventually soid the property it was to the defendant. She also later made her decision known to the LCs and neighbours when she introduced the defendant to them. The deceased never at any point in time, introduced the plaintiffs as the owners of lhe kibanja to the LC (Dutl), (as he himself conhrmed).

Going by the mere fact therefore that the deceased did not at that point deny the authenticity of the sale agreement which was presented to the LC for endorsement, the plaintiffs' argument that none of the signatories appeared in court to conlirm the validity of the agreement would not even arise.

Needless to add, even though as argued by the plaintiffs that the LC stamp on the agreement is dated 8th January, 2018 whereas the agreement is purported

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to have been executed on 17s March, 2012 this on its own was not sufficient to render the agreement invalid.

It would only have been an issue if the plaintiffs had already acquired valid interest in the suit land, which apparently they had not. As it were, the plaintiffs

5 could not merely as caretakers have acquired valid interest or even prove adverse possession as they only took physical possession around 2079, after complaints were raised about the security of the place, by which time the deceased was indisposed.

In the ruling of the Deputy Registrar tn MA 7775 oJ:2O2O, referred to by the plaintiffs it is evident that they had planted matooke. But all this was intended to create an impression that the plaintiffs had acquired actual ownership and were merely hiding behind the second option of adverse possession. 10

The argument by the plaintiffs that they had been on the land for 12 years would not have been necessary if the plaintiffs had had sufficient confidence in the sale agreement itself which they presented at the trial.

It made it look like the plaintiffs were on a fishing expedition, thus leaving court to work out by itself how they had actually acquired tine kibanja, either as purchasers or merely as adverse possessors.

The plaintiffs also failed to substantiate their claims that DutT !l,ad an already preconceived position to make him an unreliable witness, based on the fact that he took up his office in 2017 and therefore was not present at time of execution of the agreement. 20

Their conclusion of bias would have probably been justified if they had tendered in court a sale agreement which had been duly endorsed by the LC or a neighbor at the time they claimed to have purchased the land.

To that extent thereforc, onc would be justified in invoking the equitable principle as cited earlicr in Balatnu Buetegaine Kiiza & Another as Zephania

vb \t,' t7

Kadooba Kllza, (supra), to the effect that the earlier interest acquired by them would takes precedence as against that of the defendant acquired later.

The said witness could not also be judged by the mere wording of the letter for the plaintiffs to support the conclusion that he had already formed the position that the suit property belonged to the defendant.

At no time did the plaintiffs present the sale agreement between them and the deceased so as to prove their claim as owners, in order to help to remove any doubt on how they acquired ownership of the land.

They are accordingly faulted for failing to take the initiative to invite and involve their deceased relative in the LC meetings whom they knew was still alive at that time. Yet it was in their interest to do so. They could not therefore place that blame onto the Lcs for having failed to invite her for the meeting. 10

Granted, the Lc, the deceased and defendant were equaily to blame for not involving the plaintiffs as immediate neighbors in the inquiries at the time when

the defendant bought the land, which inquiries ought to have been made before, but not after the purchase. 15

It would have however been worse for the defendant if the plaintiffs were at that time claiming as owners but not as caretakers as they did at the time. The question stil1 would be why the plaintiffs as alleged owners did not institute any action against the estate of the deceased.

In response therefore to lssue No. ,, court has no basis to consider the plaintiffs' sale agreement as valid.

The defendant is accordingly declared the lawful owner of the suit property; and the plaintiffs as the trespassers onto the suit land, which also therefore sufliciently takes care of lssues No, 2 and. 3.

For the above reasons, the plaintiffs' action fails.

)c,a<sup>18</sup>

## **Remedies:**

The defendant sought for general damages and a sum of *Ugx 8,276,000/=* as special damages; a permanent injunction against the plaintiffs, among other $\mathsf{S}$ reliefs.

There was no defence to the counterclaim under which the defendant sought the above reliefs.

Special damages must be specifically pleaded and proved. No evidence was however presented in this case by the defendant to prove how the special 10 damages arose.

As for the general damages, these lie within the discretion of court. Based on the above findings, I would accordingly allow:

a) a sum of Ugx. 15,000,000/= as general damages, arising from the illegal occupation of the kibanja and the inconvenience occasioned 15 to the defendant by the plaintiffs, with interest at $10\%$ p.a, payable from date of delivery of this judgment, till payment is made in full.

b) A permanent injunction issues against the plaintiffs, $\frac{1}{2}$ their 20 *agents/workers/servants* and those claimina under them. restraining them from using or interfering with the use of the suit land by the defendant.

Costs awarded to the defendants. Alexandra Nkonge Rugadya

25 **Judge**

$6$ <sup>th</sup> January, 2025

Delivered via email<br>Abbedg<br>Gelse/2025