Okwel v Kasaliko and 3 Others (Civil Suit 928 of 2019) [2024] UGHCLD 124 (24 May 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

## **CIVIL SUIT NO. 0928 OF 2019**

MOSES OKWEL ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. JUMA KASALIKO - 2. AZIIZA SSEKITOLEKO - 3. NANTONGO MARIAM - 4. BISASO SEBINA

**::::::::::::::::DEFENDANTS**

#### **BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA**

#### **JUDGMENT**

# 1. The plaintiff's claim against the defendants is for; -

$(i)$ A declaration that the defendants are trespassers on the plaintiff's land comprised in Bulemezi Block 8 Plot Nos 453-457 at Ndeeba.

# An order that the defendants deliver up vacant possession of the $(ii)$ suit land.

(iii) An eviction order against the defendants from the suit land.

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- (iv) And order that the defendants pay mesne profits to the plaintiff. - (v) A permanent injunction refraining the defendants from further trespass. - (vi) General damages. - (vii) Costs of the suit. - (viii) Interest at court rate.

21. The facts constituting the plaintiff s case as stated in his plaint are as follows; -

- (i) That the plaintiff is the registered proprietor of land comprised in Bulemezi Block 8 Plot nos 453-457 at Ndeeba having acquired the same in2015 from various rightful owners. - (ii) That in 2016, the plaintiff fenced off his land using barbed wires and poles. - (iii) That on or about the 2nd day ofFebruary 2018, the defendants without the consent of the plaintiff forcefully entered on the suit land by damaging the barbed wire and removing the

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poles that had been put by the plaintiff and thereafter started cultivating on the suit land.

- (iv) That the plaintiff reported the matter to police and other authorities including the Local Council 2 of Vvumba Parish. - (v) That the defendants thereafter refrained from dealing with the suit land but recently when the plaintiff revisited the suit land he was shocked to find the defendants having set up mud and wattle structures on the suit land with crops on the rest of the land. - (vi) That the actions of the defendants are to the detriment of the plaintiff as the rightful owner of the suit land for which the plaintiff shall seek for both exemplary and general damages. - (vii) The plaintiff contends that he has been subjected to loss of use of his land and hence seeks for mesne profits with interest of20%o. - (viii) The plaintiff contends that the acts of the defendants have occasioned him severe inconvenience and psychological stress for which he prays for general damages.

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31. The plaintiff prays for judgment with the following declarations/orders; -

- (i) A declaration that the defendants are trespassers on the plaintiff s land. - (iD An order that the defendants deliver up vacant possession of the suit land. - (iii) An eviction order against the defendants and /or their agents from the suit land. - (iv) An order that the defendants pay mesne profits to the plaintiff. - (v) A permanent injunction refraining the defendants from further trespass. - (vi) General damages and exemplary damages. - (vii) Interest at court rate. - (viii) Costs of the suit.

41. In their ioint written statement of defence the defendants state inter alia; -

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- (i) That they are not trespassers and have a bonafide interest in the suit land as beneficiaries of the estate of the late Yusuf Juma Ssekiziyivu. - (iD That the suit land was for their grandfather Juma Ssekiziyivu who bequeathed the suit land to his six daughters namely Janat Babirye, Kalima Nakato, Nuulu Kidza, Sudat Ndagire, Zamu Namukasa and Rehema Namusisi but later the Administrator General's office took over the administration which was done on 23'd November 1989. - (iii) The defendants contend that the suit land measured 20 acres which was to be shared amongst the six daughters. - (iv) The defendants contend that the Administrator General's Office as the administrator of the estate of the late Juma Ssekiziyivu has never called any family meeting and no inventory was ever made to that effect. - (v) The defendants contend that the suit land sits on their grandfather' s burial grounds, matrimonial home, p lantations of bananas, cassava, potatoes and the plaintiff forcefully

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purchased the suit land knowing that it was family land and hence cannot trespass on their own land.

- (vi) The defendants contend that much as the plaintiff lodged a criminal case at Busiika Police Station, the suspects were unknown. - (vii) The defendants contend that the suit land has never been shared or divided amongst the said six daughters. - (viii) The defendants further contend that the suit land which has a mud and wattle structure thereon was left by their grandfather Juma Ssekiziyivu. - (ix) The defendants further contend that on the suit land also sits on the matrimonial home/house of the Yusuf Sekitoleko a son of the late Juma Ssekiziyivu and was buried on the suit land that was bequeathed to him by his late father Juma Ssekiziyivu. - (x) The 2nd defendant states that in2015 she instituted a criminal charge at Vvumba Police Station of criminal trespass vide Ref. 10/21l05/15.

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The defendants pray that the suit should be dismissed.

5]. In reply to the written statement of defence, the plaintiff contends inter alia; -

- (i) That the defendants have knowledge that he is the registered proprietor of the suit land. - (ii) The plaintiff contends that there has never been any house/structure on the suit land prior to his purchase and the mud and wattle structures had recently been set up. - (iii) That the 2nd defendant's claims of Mailo interest are laughable as the estate was distributed in 2010 and there could not be any viable transaction prior to the distribution by the estate administrator. - (iv) The plaintiff contends that he purchased the suit land when it was vacant.

The plaintiff maintained his earlier prayers.

61. In their joint scheduling memorandum, the parties raised the following issues for determination; -

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- 1. Whether the defendants are trespassers on the suit land comprised in Bulemezi Block 8 Plots 453,454,455,456 and 457 at Ndeeba. - 2. Remedies available to the parties.

The parties proceeded by way of witness statements from which they were cross-examined.

# Plaintiffls evidence.

71. In his witness statement, the plaintiff hereinafter referred to as 'PW1' stated that in July 2015 while searching for land to buy, an agent by the names of Katumba Ronald took him and they inspected a piece of land located in Ndeeba village, Vvumba-Kalagala Sub-county (currently under Busiika town council) Luweero District. That land was free from any encumbrances and he was introduced to the owners who shared with him copies of the land titles.

different plots namely 453,454,455,456 and 457 all situated on Block 8, Bulemezi County, East Buganda District (current Luweero district). 81. The Plaintiff stated that the piece of land was divided into five

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The plaintiff further stated that he conducted due diligence by way of a search on the l5th July 2015 through his agent's company, IWS Consult Uganda Limited and it was found that the land was free of any encumbrances.

91. The Plaintiffs stated that Plots 453 and 457 were duly registered in the names of the owners he had met and plots 454, 455 and 456 were still in the names of the Administrator General. The search statements and copies of certificates of title were tendered in court and marked as exhibits Pl-P9.

101. PW1 stated that he then purchased the said plots of land from their owners between July 2015 and August 2016 and since then he has been the owner of the said pieces of land. That he also took possession of the said pieces of land in2017 after grantingagrace period of two years to the original owners in order for them to harvest their food and he then fenced off the land with barbed wire in August 2017.

111. PWlfurther stated that when he visited the land on26th January' 2018, he found when the fence was completely vandalized. He then

s 9lPage ,-q, o ^/^q <. lrnl reported a case of criminal trespass to the Uganda Police at Busika Police Post on 2nd February 2018 and it is then that he leamt that the defendants were claiming ownership of the suit property.

121. PWlfutrther stated that a meeting was then convened on the 24th February 2018 by the Uganda Police at Busika Police Post in order to resolve the conflict but the defendants failed to prove ownership of the suit land.

13]. PWl further stated that in February 2079, after pursuing the case with Police without success, he opted to pursue his case through the local council system and sent his agent Katumba Ronald to report the matter to the Chairman LC II Ndeeba. That a meeting was then convened by the areaLC II Chairperson plus the clan leaders of the Nkima clan and other local leaders.

141. PWl stated that during the meeting the Nkima leaders stated that the suit properly formed part of the land bequeathed to the daughters of the late Juma Sekiziyivu and that the Administrator General had also confirmed the bequest. That it was also confirmed from the meeting that

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he purchased the suit property from the rightful beneficiaries and therefore had been lawfully registered on the certificates of title.

151. PWI contended that the defendants failed to produce any documentary evidence to support their claim of ownership of the suit property. PWl further stated that the defendants continued to trespass on wattle houses, planting crops and making bricks. the suit properly throughout 2019 and 2020 by unlawfully erecting

161. The plaintiff contended that he is the lawful owner of the suit land having acquired it from the rightful owners who are the beneficiaries of the late Juma Ssekiziyivu and was legally registered on the certificates of title.

171. The plaintiff s second witness was Musoma Ibrahim who is the LC I Chairperson of the area where the land in dispute is situate and who will hereinafter be referred to as "PW2". He stated that in Februarv 2019 the plaintiff through his agent Katumba Ronald, reported to his office that the defendants had removed his barbed wire fence and planted crops

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on his land without his consent. That he then summoned the defendants and invited them for a meeting to resolve the matter.

1Sl. PW2 stated that the defendants responded by petitioning the LC II of the area claiming to be the owners of the suit land, deriving the same from their father Yusuf Sekitoleko whom they claimed had purchased the land from his sisters before he died. That at the meeting it was discovered that the suit property formed part of the land bequeathed to the daughters of the late Juma Ssekiziyivu and the Administrator General had gone ahead to confirm the bequest and distributed the land.

191. PW2 further stated that they also discovered that the plaintiff had purchased the suit properly from the rightful beneficiaries and registered the land in his names.

PW2 contended that the defendants failed to produce any agreement proving that the late Yusuf Sekitoleko had bought the suit land from his sisters prior to his demise. That as the area Local Council, they recognize the plaintiff as the lawful owner of the suit properry.

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**201.** The third plaintiff's witness was Katumba Ronald hereinafter referred to as "PW3". He stated that the suit land was bought by the plaintiff from a host of beneficial owners including a one Namukasa Sarah, Ndagire Jane, Aisha Nakato, Kigozi Ashraf, Namuyanja Hadijah among others.

21]. PW3 stated that the plaintiff appointed him as his agent to oversee the suit land and he occasionally visited the suit land. That in 2017 they fenced the suit land which measures approximately five acres.

22]. PW3 further stated that in February 2019 he got information that some unknown people were uprooting the fence on the suit land and planting various crops. That upon visiting the suit land, he found the $4th$ defendant who told him that he had ordered for the removal of the fence and that the suit property was his.

23]. PW3 stated that he then reported the matter to Police and they held several meetings which were unsuccessful. That he then referred the matter to the LC I of the area who then summoned the defendants.

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That they then held a meeting under the auspices of the LC II Vvumba Kalagala Busiika where even the Nkima clan heads were invited. That at the meeting it was confirmed that the suit land was bequeathed to the six daughters of the late Juma Sekiziyivu from whom the plaintiff bought from

241. PW3 stated that the defendants have since constructed make shift wattle houses on the suit property. PW3 contended that the defendants have no genuine claim on the suit properly and they only intend to land. defraud the plaintiff and that the plaintiff is the lawful owner of the suit

251. The 4th plaintiff s witness was Sarah Namukasa hereinafter referred to as 'PW4'. She stated that the suit land was part of the estate of her late father Juma Sekiziyivu and that her late father left a will which was executed by the Administrator General.

261. PW4 stated that the suit land measuring five acres was part of the land measuring nine acres bequeathed by their late father to his daughters to wit;

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- (a) Jane Babirye (deceased). - (b) Nakato Joyce (deceased) - (c) Nuuru Kizza (deceased) - (d) Jane Ndagire. - (e) Sarah Namukasa. - (0 Ruth Namusisi (deceased).

27l. PW4 stated that when the Administrator General distributed the estate in accordance with her late father's will, all the beneficiaries got their respective shares. That the shares that were due to her siblings who had since passed on were given to their respective successors (children) in title.

281. PW4 further stated that the I't defendant was her brother and he was bequeathed land in Luwero. That she subsequently with the other beneficiaries sold their respective portions of land to the plaintiff upon which they handed him the respective certificates of title and vacant possession of the suit land.

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29l. PW4 further stated that the plaintiff fenced off the suit land and the same was being supervised by his agent (PW3). PW4 further stated that the Administrator General set aside part of the land for the burial grounds of the family. as beneficiaries of the nine acres of land in Ndeeba, they agreed and let

in the suit property and their claims of being bonafide/lawful occupants are baseless and an attempt to defraud the plaintiff. 301. PW4 stated that the defendants have no genuine claim whatsoever

3ll. PW4 further stated that the plaintiff is the lawful owner of the suit property and the defendants should be restrained from interfering with the plaintiff s quiet possession of the land.

## Defendant's Evidence.

case and hereinafter referred to as "DWl" stated that she was a daughter of the late Ssekitokelo Yusuf Bin Juma who was resident of Ndeeba Kalagala Luwero District and a husband to the 2nd defendant. 321. In her defence, Nantongo Mariam who is the 3'd defendant in this

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331. She stated that until recently, she was a resident of Ndeeba at the was fraudulently sub divided and now reads at Block 8 Bulemezi Plots 453,454,455,456 and 457 and have lived on the said suit land since suit property originally comprised in Bulemezi Block 8 Plots 461 which 1979 as a child.

341. That from time to time she has lived on and cultivated on the suit Yusuf. DWI stated that as she grew up, she found when her late father had already built the tiled house on a piece of Kibanja that was given to him by his late father Juma Ssekiziyivu Kasaliko in 1940 which house still stands on the suit properly as their family home. land which belonged to her said deceased father the late Ssekitoleko

351. DWI further stated that apart from the Kibanja her late father inherited from his late father, he also purchased adjacent to the land nine acres of land comprised in Bulemezi Block 8 Plot 46 from his sisters, that had been fraudulently subdivided into Block 8 Bulemezi, plots 453, 454,455,456 and 457 which is now the current suit land. Janati Babirye, Kaliima Nakato and Nuulu Kizza and it was the said land

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361. DWI stated that she now grows food stuffs on the suit land comprised on the nine acres and therefore a bonafide occupant. DWl contended that it was the said nine acres of land and the Kibanja which her late father purchased from his sisters, Janati Babirye, Kaliima Nakato and Nuulu Kiiza and inherited from his father the late Juma Sekiziyivu Kisaliko that has at all material times been the source of the 2nd,3td and the 4th defendants livelihood having planted thereon coffee, food crops including fruits for the last thirty years.

371. DWI further stated that her father was buried on the same piece of land which was originally Bulemezi Block 8 Plot 46. DW1 contended that she has lived on the suit land for all of her adult life spanning beyond four decades and no one has ever claimed contrary ownership until recently when she got to learn of the plaintiff s claim on their Kibanja which is approximately nine acres.

3Sl. DWI further stated that sometime around 2012,the 2nd defendant and herself instructed the 4th defendant to erect sign posts reading "This

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n'q land is not for sale" but despite the existence of such warnings, the plaintilf went ahead to purporl to purchase her land and Kibanja.

DWI further contended that she is the lawful occupant of the suit land and that the plaintiff should claim his refund from whoever purported to interfering with her quiet possession of the land. sell him the non-existing interest and be permanently restrained from

She prayed that judgment should be entered against the plaintiff with costs.

391. The 2nd defendants witness was Juma Kisaliko, the I't defendant, who will herein after be referred to as "DW2". DW2 stated that he was a son to Abdu Muyingo the heir to the late Juma Sekiziyivu. He stated that he was a resident of Ndeeba on the suit property which was fraudulently subdivided and now reads Block 8 Bulemezi Plots 453, 454,455,456 and 451 and that he has lived on the suit property since his childhood. That he acquired the land from his late father Abdu Muyingo who was a son to the original owner the late Ssekiziyivu Juma.

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401. DW2 contended that he has lived on the suit land all his life as a bonafide/lawful occupant and in 2012he put a big sign post reading "This land is not for sale" to restrain fraudsters from purporting to buy his interests without his knowledge. That despite the numerous notices thereon, he was shocked that the plaintiff still purports to have purchased the suit land.

411. DW2 further stated that he knows as a fact that the 2nd defendant's sisters but died before completing registration of his purchased interest and hence the 2nd defendant is not a trespasser as alleged by the plaintiff but a bonafide/lawful occupant having lived thereon from the time she got married to the late Sekitoleko Yusuf on or about 1964. DW2 further stated that he and the defendants are bonafide/lawful occupants ofthe deceased husband had acquired a mailo interest on the suit land from his suit land.

42l. The 3'd defendants witness was Aziiza Ssekitoleko, the second defendant herein and hereinafter referred to as 'DW3'.

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mother to the 3'd and 4th defendants. DW3 stated that she was a resident known as Block 8 Bulemezi Plots 453, 454,455,456 and 457 and has lived on the suit property from or about 1964 when she got married to her said deceased husband. DW3 stated that she was a widow to the late Ssekitoleko and also a of Ndeeba at the suit property which was originally known as Bulemezi Block 8 Plot 46 but was later on fraudulently subdivided and is now

431. DV/3 stated that she got married to the said Ssekitoleko Yusuf on or about 1964 and found when he had already built a tiled house on a piece of Kibanja given to him by his late father Juma Ssekiziyivu Kisaliko in 1940 which house stands on the suit properfy as her matrimonial home.

441. DW3 also stated that on top of the Kibanja her deceased husband inherited from his late father, her late husband also purchased nine acres of land situate and known as Bulemezi Block 8 Plot 46 from his sisters, Janati Babirye, Kaliima Nakato and Nuulu Kizza which has now been fraudulently subdivided into Block 8 Bulemezi Plots 453, 454,455,456 and 451 which is ow the suit property.

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451. DW3 further stated that the said nine acres of land and the Kibanja which her deceased husband purchased from his said sisters and inherited from his father respectively have at all material times been the source ofher livelihood having planted thereon coffee and other food crops including fruits for the last 57 years. DW3 further stated that her late husband was buried at the same piece of land.

461. DW3 further contended that for the last six decades she has lived on the suit land, no one has ever claimed contrary interest until recently when she got to learn of the plaintiff s claim against her land.

47]. DW3 further stated that sometime around 2012 she instructed the 4th defendant to erect sign posts reading "this land is not for sale" around the nine acres but despite the existence of such warnings, the plaintiff went ahead to purchase the suit land. DW3 contended that the defendants are the bonafide/lawful occupants of the suit land and judgment should be entered against the plaintiff with costs.

481. The fourth defendant's witness was Hamida Nagawa who will hereinafter be referred to as ooDW4".

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DW4 stated that she previously resided at Ndeeba Kalagala Luweero District on the suit properly which was originally comprised in Block 8 Plot 46 but was fraudulently subdivided and now reads Block 8 Bulemezi Plots 453, 454,455,456 and 457 and had lived on the suit land since she was a child.

491. DW4 stated that she was raised on the suit land by DW3 and she grew up seeing the defendants growing crops on the suit land to date. DW4 further stated that she has lived on the suit land for all her adult life spanning beyond three decades and until recently had never seen anyone claim ownership of the same.

501. DW4 contended that the defendants are bonafide/lawful occupants of the suit land and that the plaintiff should claim his money from whoever purported to sell to him the suit land.

be referred to as "DW5". DW5 stated that until recently, she was a resident of Ndeeba at the suit property which originally was comprised in Bulemezi Block 8 Plot 46 but fraudulently subdivided to reflect as 511. The fifth defendant's witness was Isha Bisirika who will hereinafter

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now Block 8 Bulemezi Plots 453, 454,455,456 and 457. DW5 stated that she was born and lived on the suit land since 1964 and cultivated on Yusuf who had also acquired it from his deceased father in or about 1940. the suit land which belonged to her deceased father the late Ssekitoleko

521. DW5 further stated that when she grew up, she found when her father had already built a tiled house on the Kibanja that was given to him by his late father the late Juma Sekiziyivu Kasaliko in 1940 which house still stands on the suit land to date.

531. DW5 further stated that on top of the Kibanja her father inherited from his late father, her late father also purchased adjacent land which was nine acres of the suit land which he purchased from his sisters Janati Babirye, Kaliima Nakato and Nuulu Kizzawhich land has now been fraudulently subdivided into Block 8 Bulemezi Plots 453, 454,455,456 and 457 which is now the suit land.

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541. DW5 stated that while she was growing up, she and the defendants grew food crops and also enjoyed quiet possession ofthe suit land as bonafi deilawful occupants.

551. The 6th defendants witness was Ssegawa Obrien who will hereinafter be referred to as DW6. DW6 stated that he was a son to a one Ssentongo Lewis who was a resident of Ndeeba Kalagala in Luweero District. DW6 stated that he used to reside on the suit property from the time he was a child.

561. DW6 stated that when his father died during the war in early 1980, he was taken to be raised by DW3. DW6 stated that he was raised and lived on the suit land as a child and during his adulthood and had never seen anyone claiming ownership of the suit land other than the 2nd defendant.

571. The defendants seventh witness and who is the 4th defendant in this case stated that he was called Bisaso Sebina andwill hereinafter be referred to as "DW7".

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DW7 stated that he also lived on the suit land from childhood. He stated that the suit land belonged to his deceased father the late Ssekitoleko Yusuf who also acquired it from his father on or about 1940.

581. The 8th defendant's witness was Kikabi Ismail who will hereinafter be referred to as "DWS". He stated that he also resided on the suit land from the time he was a child. He stated that he was raised by the 2"d defendant (DW3) and that the late Ssekitoleko told him that Sarah Namukasa, Joyce Nakato and Ndagire Jane got their share of land at Mayindo on Block 8 Plot 85 and sold it to a one Godfrey Masinde at One Million seven hundred thousand shillings on the 9th day of November 2008.

591. DWS stated that in a meeting that was called by the family leader Mr. Zibangu Godfrey on the l3th July 2014 the said Godfrey Masinde was called into the meeting and he confirmed the purchase by showing an agreement that was executed between him and the said beneficiaries to wit Sarah Namukasa, Joyce Nakato and Ndagire in respect of land comprised in Bulemezi Block 8 Plot 85.

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601. DW8 further stated that he has lived on the suit land for a span of beyond three decades and until recently had never seen anyone claim ownership of the suit land other than the defendants. DW8 contended that the defendants were the bonafide/lawful occupants of the suit land.

611. The defendants 9th witness was Hon. Jacob Asiimwe who will hereinafter be referred to as "DW9".

DW9 stated that he got to know DW3 and her deceased husband in 197 5 when he was a head teacher at the neighboring Mpigi Secondary school. He stated that at the time of establishing his residence, the 1't, 2d and 4rh defendants were living and utilizing the suit land.

621. DWg stated that the defendants enjoyed quiet possession of the suit land until recently when the plaintiff came claiming to have purchased the suit land which the defendants have lived on for all the time he has known them. DW9 contended that from the time he knew the defendants they have always lived and utilized the suit property without any interl'erence.

> 2TlPage \*-t\* 's-ou4 (.'I 631. DW9 further stated that by the time he came to live at his residence which is just a few meters from the suit land, he found when the 2nd defendant's husband had already built the tiled house on a piece of Kibanja given to him by his late father Juma Sekiziyivu Kasaliko which house still stands and houses DW3 (2"d defendant).

641. DW9 further stated that the late Sekitoleko Yusuf had also purchased an adjacent piece of land that included where his grave is located measuring approximately nine acres of land from his sisters Janat Babirye, Kaliima Nakato and Nuulu Kizza.

651. DW9 further stated that the late Ssekitoleko Yusuf died before completing transfers of the said nine acres but the defendants grew food crops on the said land without any interruptions or interference and that if the plaintiff willfully purchased the suit land, he was fully aware that it was physically encumbered and not available for sale.

661. DW9 further stated that he has known the defendants to be bonafide/lawful occupants of the suit land and that the plaintiff should

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the suit land. be restrained from interfering with the defendants' quiet possession of

671. The defendants tenth witness was Bashir Katumba who will hereinafter be referred to as "DWl0".

DWl0 stated that he was a brother to the late Ssekitoleko Yusuf Bin Juma and that he used to reside on the suit property.

681. DW10 stated that from his childhood he had lived and cultivated on the suit land which belonged to his deceased brother. That he found when he had already built the tiled house on a piece of Kibanja given to him by his late father Juma Sekiziyivu Kasaliko in 1940 which house still stands on the suit land as a family home.

691. DW10 further stated that on top of the land his said late brother inherited from his father, he also bought nine acres ofland situate and comprised in Block 8 Plot 46 from his sisters, Janati Babirye, Kaliima Nakato and Nuulu Kizza which had been fraudulently subdivided into Block 8 Bulemezi Plots 453, 454,,455,456 and 457 which is now the suit property.

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701. DWl0 stated that he grows food staffs on the said nine acres whose part is being claimed by the plaintiff and is therefore a bonafide occupant. DW10 further stated that he is the caretaker of the family burial grounds on the suit property and they have buried over thirty people thereon.

7ll. DWl0 further stated that the suit land has at all material times been the source of the 2nd, 3'd and 4th defendant's livelihood having planted thereon, coffee, food crops including fruits for the last over thirty years. That for all the time he has lived on the suit land, nobody has ever claimed contrary ownership until recently when he got to learn of the plaintiff s claim.

721. DW10 further stated that around 2072,the 2nd defendant and himself instructed the 4th defendant to erect sign posts reading "This land is not for sale" but despite such a warning, the plaintiff went ahead to purchase the land.

DW10 contended that the defendants and himself are bonafide/lawful occupants of the suit land.

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Counsel for the plaintiff and counsel for the defendants filed written submissions the details of which are on record and which I have considered in determining this matter.

73]. In their joint scheduling memorandum, the parties agreed on the following issues; -

- (D Whether the defendants are trespassers on the suit land. - (ii) The remedies available to the parties.

I will resolve both issues concurrently.

74l. It was held in the case of Justine E. M. N Lutaays versus Sterling Civil Engineering Co. S,C. C. A No. 11 of 2002 that trespass to land occurs when a person makes an unauthorized entry upon land thereby interfering, or portends to interfere, with another person's lawful possession of that land.

751. The tort of trespass is committed not against the land, but against the person who is in actual or constructive possession of the land.

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In order for one to succeed in a case oftrespass one must prove the following; -

- (i) That the disputed land belonged to the plaintiff. - (ii) The defendant entered upon it. - (iii) That the entry was unlawful and it was made without permission or that the defendant had no claim or right or versus Kitara Enterprises C. A. C. A No. 4 of 1987. interest in the disputed land. See Sheik Mohammed Lubowa

761. The suit land is registered in the names of the plaintiff. Exhibits P5, P6,P7, P8 and P9 show that the plaintiff was registered on the 1't September 2015 for Plot 453. He was registered on24th August 2016 for Plot 454, he was registered on 7th October 2015 for Plot 455, registered on 7th October 201 5 for Plot 456 and registered on I't September 2015 for Plot 457 . The total acreage of land is 1.915 hectares which is equivalent to 4.732 acres.

77l. The plaintiff also tendered in court statements of search for the said pieces of land and the same were marked as exhibits P.l-P.4.

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There were nil encumbrances on the said pieces of land. The plaintiff also obtained final accounts of the estate of the late Juma Ssekiziyivu from the Administrator General that indicated how the said estate was distributed. The final accounts were tendered in court and marked as exhibit P.16.

781. This therefore clearly indicates that the estate of the late Sekiziyivu Juma was distributed to the beneficiaries and titles created for them. The main defence ofthe defendants is that they are bonafide occupants on the suit land and therefore have a right ofsecurity ofoccupancy as guaranteed under section 29(2) (a) of the Land Act Cap 227 (as amended).

791. The defendants contended that they have lived and utilized the suit land for as long as they have lived and that the plaintiff purchased the land when the defendants were already in possession and utilizing the suit land and therefore cannot be said to have entered the suit land after 2015.

801. Section 29 of the Land Act Cap227 (as amended) provides that

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- (l) 'ol-,,awful occupant" means- - (a) A person occupying land by virtue ofthe repealed - O Busuulu and Envuijo Law of 1928; - (iil Toro Lundlord and Tenant Law of 1937; - (ii| Ankole Landlord and Tenant Law of 1937; - (b) A person who entered the land with the consent of the registered owner, and includes a purchaserl or - (c) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensatedfor by the registered owner at the time of acquiring the leasehold certilicate of title. - (2) "BonaJide occupant" meilns a person who before the coming into force of the constitution- - (a) had occupied and utilized or developed any land unchullenged by the registered owner or agent or the registered owner for twelve years or more; or - (b) has been settled on the land by the Government or by on agent of the registered for twelve years or more; or

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- (c) hus been settled on land by the Government or an agent of the Government, which may include a local authority. - (3) In the case ofsubsection (2) (b)- - (a) the Government shall compensate the registered owner whose land has been occupied by persons resettled by the Government or an agent of the Government under the resettlement scheme; - (b) persons resettled on registered land may be enubled to acquire registrable interest in the land on which they are settled; and - (c) the Government shall pay compensation to the registered owner within live years after coming into force of this Act. - (4) For the avoidsnce ofdoubt, a person on land on the basis oJ a licensefrom the registered owner shsll not be taken to be u lawful or bonaJide occupant under this section.

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(5) Any person who has purchased or otherwise acquired the interest ofthe person qualiJied to be a bonaJide occupant under this section shall be taken to be a bonaJide occupant for purposes of this Act".

late Yusuf Ssekitoleko bought the suit land from his biological sisters Janat Babirye, Kaliima Nakato and Kiza Nulu who had obtained the same as beneficiaries of the late Juma Sekiziyivu. The defendants claimed interest as the beneficiaries of the estate of the late Yusuf Ssekitoleko. 8ll. In their written statement of defence, the defendants stated that the

821. The defendants therefore departed from their pleadings when they claimed in their witness statements that they were bonafide/lawful occupants of the suit land and yet in their written statement of defence they claimed that the suit land belonged to their late grandfather Juma Ssekiziyivu who bequeathed the land to his six daughters and the administration was done bv the Administrator General on23'd November 1989.

( 36 lPage ^+lot l\*-4 831. This gives credence to the plaintiff s evidence that the suit land formed part of the estate of the late Juma Sekiziyivu land that was bequeathed to the daughters of the late Juma Sekiziyivu and which the Administrator General had also confirmed the bequest.

841. The titles clearly show that the suit land was initially registered in the names of the Administrator General who was the administrator of the estate of the late Sekiziyivu Juma and transferred it to the daughters of the said deceased who in turn transferred it to the plaintiff. This is clearly shown in exhibits P.5-P.9 which are certificates of title.

851. Children of the deceased cannot claim to be lawful,/bonafide occupants of the deceased's estate as the defendants now claim. This equally applies to his widow. This is especially so if there is evidence that the estate was distributed and the children got their shares.

861. The defendants acknowledge that the suit land originally belonged to Juma Sekiziyivu and the land was comprised in Bulemezi Block 8 Plot 46. Juma Sekiziyivu is the grandfather to the 1't, 3'd and 4th

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defendants. He is also the father to Yusuf Ssekitoleko who was the husband to the 2nd defendant.

871. The plaintiff adduced evidence from the Administrator General's office which was tendered in court and marked as exhibit P.16 on how the office of the Administrator General distributed the estate of the Juma Sekiziyivu. It gives the details of how the estate was distributed to the children of the said deceased. This was the final account of the said estate by the Administrator General.

the suit land from his sisters. The defendants tendered in a document Ssekitoleko. One wonders if that was the case the land was never transferred into his names! None of the purported vendors testified to that effect. 881. The defendants also stated that the late Yusuf Ssekitoleko bought which was marked as exhibit D.2 where it indicates that the daughters of Juma Sekiziyivu Kasaliko sold the suit land to the late Yusuf

891. Section 103 of the Evidence Act Cap 6 provides that"The burden of proof as to any particular fact lies on that person who wishes the

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court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".

901. The defendants also tendered in a will purportedly made by the late Yusuf Ssekitoleko but there was no evidence that Probate had ever been granted in respect of the said will.

Section 188 of the Succession Act Cap 162 (as amended) provides that \*No right as executor or legatee shall be estublished in any court of granted Probate of the will under which the right is claimed or has granted letters of administration under section 18-1". Therefore, without proof of Probate no one can ever claim from the said will where no Probate was issued. justice, unless a court of competent jurisdiction within Uganda has

911. The plaintiff adduced evidence of one of the vendors to whom the suit land had been bequeathed and who acknowledged that she had indeed sold the suit land to the plaintiff. The suit land is currently registered in the plaintifls name.

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921. Section 59 of the Registration of Titles Act Cap 230 provides that "No certiJicate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certiJicate, and every cerfficate of title issued under this Act shall be received in all courts as evidence of the particulars setforth in the certiJicate and of the entry of the certiJicate in the Register Book, and shall be conclusive evidence that the person named in the certilicate as the proprietor of or having described in the certiJicate is seized or possessed ofthat estate or estate or interest in or power to appoint or dispose of the land interest or has that power".

931. I find that the defendants have failed to prove their interest in the suit land and I find that they are trespasser on the suit land. It was held in the case of Moya drtftfarm Ltd versus Theuri (1973) E. A 114 that a person in possession ofa title has legal possession and can sue in trespass.

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The defendants by their own admission continue to cultivate on the suit land without the permission of the plaintiff and when they have no legal interest thereon. They are therefore trespassers on the suit land.

. I'

## Issue 2. Remedies available to the Parties.

941. Judgment will be entered for the plaintiff against the defendants with the following declarations/orders; -

- (i) The defendants are trespassers on the plaintiffs land comprised in Bulemezi Block 8 Plot Nos 453-457 at Ndeeba. - (iD The defendants are to deliver up vacant possession ofthe suit land. - (iiD The defendants are to be evicted from the suit land. - (iv) A permanent injunction is to issue refraining the defendants from further trespass. - (v) The plaintiff will be awarded fifty million shillings (50,000,000/:) as general damages for being deprived of his land by the defendants.

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- (vi) Interest will be awarded on (v) at the rate of 107o per annum from the date of judgment until payment in full. - (vii) I will award the costs of this suit to the plaintiff.

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Hon. Justice John Eudes Keitirima.

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