Ouma v Zimula & 2 Others (Civil Suit 88 of 2020) [2024] UGHC 228 (12 April 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO

# CIVIL SUIT NO. 88 OF 2020

# OUMA NICHOLAS AUGUSTINE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. DAUDI ZIMULA MUSIITWA

# 2. SEMBUYA TWAHA

3. SENTUWA JOHN BAPTIST :::::::::::::::::::::::::::::::::::

# BEFORE HONOURABLE JUSTICE DAVID MATOVU

#### JUDGEMENT

## Introduction

- 1. Ouma Nicholas Augustine hereinafter referred to as the Plaintiff filed Civil Suit No. 88 of 2020 against daudi Zimula Musiitwa, Sembuya Twaha and Sentuwa John Baptist hereinafter referred to as the Defendants. - 2. The Plaintiff' claim against the Defendants jointly and severally is for: - a) A declaration that the Estate of the Late Golomba Rose has never been shared and/ or divided among the deceased's beneficiaries lawfully - b) A declaration that any sharing, selling or distribution of the Late Golomba Rose's estate is null and void because no had had applied for and/ or obtained letters of administration to the said estate

- c) A declaration that any document, agreement $or$ undertaking of any kind that the Defendants forced and / or coerced any beneficiaries to sign, endorse or ordain regarding the sharing, selling or distribution of the Estate of the Late Golomba Rose are null and void - d) A declaration that the 3nd defendant fraudulently purchased the suit land comprised in Block 83 Plot 556 measuring approximately 0.8100 hectares located at Kasayi, Kyaggwe, Mukono District - e) An order for a permanent injunction restraining the Defendants, their agents, servants and/ or persons acting on their behalf from building, further constructing, advertising, offering for sale, selling and/ or transferring any interest or otherwise dealing with and in land comprised in Block 83 Plot 556 measuring approximately 0.8100 hectares located at Kasayi- Kyaggwe, Mukono District - f) An order that the 1st Defendant hands over signed transfer forms and land title of the suit land comprised in Block 83 Plot 556 measuring approximately 0.8100 hectares located at Kasayi-Kyaggwe, Mukono District - g) General damages, and - h) Costs of this suit

## **Background**

- 3. The background of this suit is that the Late Golomba Rose, a grandmother to the Plaintiff died intestate in 1997. - 4. That she owned a kibanja measuring approximately 12 acres and it was situate on Block 83 Plot 556 located at Kasayi-Kyaggwe, Mukono District. - 5. That the said Kibanja was on land belonging to two landlords; that is 09 acres on the land of Yozefu Musiitwa and 03 acres on the land of a one Mangeni. - 6. That before the death of the Late Golomba Rose, she had distributed the said land amongst her three children to wit Nanyonjo Florence - 03 acres, Wabwire Alex -06 acres and Sabina Nabwire- 03 acres. - 7. That the said distribution was never challenged by any of the said beneficiaries up until the time of their demise. - 8. That the said beneficiaries all had children who were entitled to their respective shares. - 9. That Nanyonjo Florence sold her 03 acres to the children of the landlord, Mangeni. - That the children of the Late Sabina Nabwire took possession $10$ of their mother's estate and are in possession to date. - 11. That the Plaintiff also took possession of the land belonging to his Late father Alex Wabwire. - That the 3rd Defendant together with Nanyonjo Margaret, $12.$ before her demise, approached the Plaintiff with a view of buying off the said land, however the Plaintiff declined.

- $13.$ That sometime, the Late Yozefu Musiitwa also engaged the Late Nanyonjo Florence and they agreed to demarcate off 04 acres of land belonging to Alex Wabwire and give them to the landlord and in return, they would be given a title for the remaining 02 acres. - 14. That indeed the said process commenced, however both parties died before the same was completed and the 1st defendant instead obtained the title in his name as administrator to the Late Yozefu Musiitwa - 15. That the 1st Defendant refused to hand over the said title to the plaintiff or any other beneficiary to the Estate of the Late Alex Wabwire - 16. That further, around May 2014, the Late Margaret Nabwire, a daughter to the late Sabina Nabwire and Cousin to the Plaintiff also purported to sell a portion of the suit land to the 2nd Defendant - 17. That the Defendants started sub dividing the suit land, selling it to various people and also constructing thereon. - 18. The Plaintiff avers that these acts by the Defendants are aimed at depriving him of his interest in the said land, for which judgement ought to be entered in his favour.

#### Legal representation

19. At the hearing of this suit, Mr. Arthur Ayorekire represented the Plaintiff

# Evidence of the Plaintiff

- 20. The Plaintiff led evidence of 03 (three) witnesses through witness statements, which was uncontested. - 21. Ouma Nicholas Augustine (the Plaintiff) as PW1, Musoke Godfrey as PW2 and Denis Kabanda as PW3.

# **Evidence of the Defendants**

22. This suit proceeded ex-parte against the Defendants since they did not file their respective defences despite being effectively served.

# **Issues for determination**

- 23. Counsel for the Plaintiff raised 04 (four) issues for determination - Whether the distribution of the Estate of the Late Golomba $\dot{1}.$ Rose was valid? - Whether the 2nd Defendant fraudulently purchased the suit ii. land comprised in Block 83 Plot 556 located at Kasayi-Kyaggwe, Mukono District? - Whether the 3rd Defendant trespassed on the suit land iii comprised in Block 83 Plot 556 located at Kasayi-Kyaggwe, Mukono District? - Whether the Plaintiff is entitled to the remedies sought? iv.

### Submissions

24. The Plaintiff addressed this Court by way of written submissions which this Court has carefully read and considered while arriving at its decision.

## **Decision of Court**

25. This Court will also proceed and resolve the issues as proposed and submitted by Counsel, in the same order.

#### Issue one

Whether the distribution of the Estate of the Late Golomba Rose was valid?

- 26. It was submitted for the Plaintiff that the Late Golomba Rose was a kibanja owner on land comprised in Block 83 Plot 556 land located at Kasayi-Kyaggwe, Mukono District. She owned approximately 12 acres and her interest was located on the land of two landlords namely Yozefu Musiitwa, on whose land she owned 09 acres and the Late Mangeni on whose land she owned $03$ acres. - 27. It was further submitted that before her death, she had distributed her estate to her children to wit Nanyonjo Florence who received 03 acres, Wabwire Alex who received 09 acres and Safina Nabwire who received 03 acres. - 28. This distribution was never challenged by any of the biological children of the Late Golomba up until the time they all passed on.

This Court finds that the distribution of the Estate of the Late 29. Golomba Rose was never in issue at all and as such this issue ought not to have been raised.

### Issue two

Whether the 2nd Defendant fraudulently purchased the suit land comprised in Block 83 Plot 556 located at Kasayi- Kyaggwe, Mukono District?

- "Fraud" was well defined as an intentional perversion of truth $30.$ to induce another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. See Zabwe Fredrick versus Orient Bank & Others SCCA No. 4 of 2006, Kampala Bottlers Ltd versus Domanico (U) Ltd SCCA No.22 of 1992 and Western Uganda Importers and Distributers Ltd V Muhasa Ivan Mpondi, Kasese District Land Board and Commissioner for Land Registration Civil Suit No. 0014 of 2014. - 31. In the instant case, it was the evidence of both PW1 and PW2 that the late Nabwire Margaret purported to enter into a land sale agreement with the $2^{nd}$ Defendant on the 17th day of May, 2014, well knowing that she had no interest in the land and that that land belonged to the beneficiaries of the Late Alex Wabwire. The Plaintiff relied on Pexh6.

- 32. Upon careful reading of PExh6, it is seen that the said agreement is not dated, and that the Late Nabwire Margaret, who was a child to the Late Sabina Nabwire purported to sell a plot of land measuring approximately 02 acres which she claimed she had received as her share in the Estate of the Late Golomba Rose. - 33. This Court agrees with the Plaintiff to the end that the Late Nabwire Margaret was only entitled to share in the Estate of the Late Sabina Nabwire, her mother and not that of the Late Golomba Rose as she was not a beneficiary thereof. - 34. As such, the Late Nabwire acted fraudulently in selling land well knowing that she neither had an interest therein neither did it belong to her. - 35. As regards to whether the said fraud can be attributed to the 2nd Defendant, it was stated in David Sejjaaka vs Rebecca Musoke, SCCA No. 12 of 1985, wherein it was held that fraud must be attributable to the transferee, either directly or by necessary implication. - 36. Although the Plaintiff claims that the $2^{nd}$ defendant had notice and knowledge of the seller's lack of title and interest in the said land, the Plaintiff has failed to attribute any fraud onto the 2nd Defendant - It can be argued that the Late Nabwire Margaret sold the said $37.$ land from the parcel (03) acres that belonged to her mother. - 38. Further, the said agreement, PExh 6, was witnessed by Nanyomjo Florence, a beneficiary to the Estate of the Late

Rose, who is presumed to Golomba have been very knowledgeable regarding the affairs of the land in question.

- 39. The said agreement also shows that the Local Council authorities were present while the said transaction was being done - 40. In light of all the above, this Court finds that the Plaintiff has failed to prove any fraud as perpetrated by the 2nd Defendant. - 41. For reasons whereof, this issue is answered in the negative.

### Issue three

Whether the 3rd Defendant trespassed on the suit land comprised in Block 83 Plot 556 located at Kasayi-Kyaggwe, Mukono District?

- 42. Pw1 stated in his evidence that the 3rd Defendant together with Nanyonjo Florence, before her demise, approached him with a view of buying his land. However, he turned down their proposal. - 43. That however, after the death of Nanyonjo Florence, the 3rd Defendant forcefully came onto the suit land and started illegally constructing thereon. - 44. Counsel for the Plaintiff cited the case of Justine E. M. N Lutaaya versus Sterling Civil Engineering Co. SCCA No. 11 of **2002** as regards to what amounts to trespass. - 45. Counsel also cited the case of Sheikh Mohammed Lubowa versus Kitara Enterprises Ltd C. A No. 4 of 1987 where it was observed that for one to succeed in an action for trespass, the following have to be proved; that the disputed land belonged to

say, we think it is more probable than not, then the burden of proof is discharged but ig the probabilities are equal, then it is not."

- 51. In the instant case, this Court finds that the Plaintiff has failed to discharge this burden. - 52. Issue 3 is also answered in the negative.

## **Issue four**

Whether the Plaintiff is entitled to the remedies sought?

53. Having found that the Plaintiff has failed to discharge his legal burden of proving his case to the satisfaction of this Court, this Court finds that he is not entitled to any of the remedies sought.

## Conclusion

54. In the final result, this Court finds no merit in this suit and it is dismissed with no orders at to costs.

day of $A$ Dated this 2024 David Matovu

**JUDGE**