Oyet v Ojok Awany (Civil Suit No. 0049 of 2008) [2010] UGHC 240 (26 November 2010)

Full Case Text

| | \ | | |---|--------------------------------|----------------------------------------------------------------------------------------------------------------------------------| | | THE IN | REPUBLIC OF UGANDA | | | THE HIGH IN | UGANDA COURT AT GULU OF | | | SUIT CIVIL | NO.0049 OF 2008 | | | | | | 5 | MICHAEL OYET | This is exhibit/annexture referred to in the affidavit of Sworn/declared before me on thisday at of | | | Attorney Suing by his | KIYEMBA — MUTALE | | | PATRICK. O. LALUR ALYI | PLAINTIFF | | | | VERSUS | | | AWANY SAVIO OJOK | DEFENDANT | | | | |

### 10 BEFORE JUSTICE REMMY KASULE

# **i JUDGMENT**

The plaintiff, through his duly appointed Attorney, Alyi Patrick. O. Lalursued the defendant for a declaratory order that he owns the suit land, a permanent injunction against the defendant from interfering with the suit land and for general damages. The suit land is Leasehold Register Volume 1330 Folio 16 plot No. 18, Nwoya Block 1, Land at Aporolala, Pawatomero, Gulu (now Nwoya District).

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The defendant denied the plaintiff's claims and averred that the plaintiff had no cause of action against him and his suit was misconceived and abuse of court process.

The plaintiff's appointed attorney testified as PW1 and called a witness, Mr. Too Okele Geoffrey, PW2. Plaintiff then closed his case.

The case was then adjourned several times to accommodate Defendant to attend court, testify and call witnesses, if any, in support of his case. The • defendant and his counsel in spite Of being so accommodated failed to attend court and to present witnesses. On 02.09.2010, court declined to adjourn the case any further on the ground of absence of defendant and his counsel. This judgment is thus based on the pleadings filed in the case and the evidence adduced for the plaintiff.

Three issues were framed:

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- 1. *Whether or not the plaintiff's suit discloses a cause of action against the defendant, or whether the same is misconceived and is an abuse of court process.* - 2. *Whether or not the plaintiff acquired ownership of the suit property bonafide.* - 3. *What are the remedies available.*

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The Law as to cause of action is that a cause of action is there pleadings of the claimant show that the claimant enjoyed a right, that right was violated, and the defendant is the one alleged to have done th violation:

## ; 45 *: AUTO GARAGE V MOTOKOV[1971] EA 514.*

#### *: KAWESA VATTORNEY GENERAL [1973] EA 407.*

. The plaintiff avers in the plaint and adduced evidence that he bought the suit land from Non-Performing Assets Recovery Trust, (NPART) and also 50' from the defendant in person. The defendant mortgaged the Title to the suit land to the then Uganda commercial Bank for a loan advanced to him in 1989. The mortgage incumbrance was registered on the title as Instrument No.238461 on 20.02.89 at 3.00p.m.

55 The defendant failed to repay the loan to the Bank and on its being privatized as a Government enterprise, the recovery of the loan including the suit land as security were passed over to NPART.

60 The defendant then got in touch with the plaintiff with an offer that the plaintiff pays the outstanding loan amount to NPART and then also pays to the defendant some additional money, all totaling about Shs.27 Million; and then plaintiff would own the suit land.

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Plaintiff paid the money as agreed both to NPART and to the defendan He became registered proprietor of the suit land on 31.10.2001. defendant gave vacant possession of the land to the plaintiff introduced him to the area Local Government Councils as the new owne the suit land. The plaintiff began to carry out agricultural activities on the suit land.

Then in 2008, the Defendant, and his relatives with his consent and approval prompting and instigation, began to interfere with the plaintiff's quiet enjoyment of the suit land, claiming that the plaintiff had wrongly acquired the same. The plaintiff then instituted this suit.

process. This Court finds that, on the basis of the plaintiff's plaint, and also given the evidence adduced, the plaintiff's suit discloses a cause of action against the defendant and the same is not misconceived or an abuse of court

#### *The second issue:*

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This is whether or not the plaintiff acquired ownership of the suit property bonafide.

PW1, brother to plaintiff and also plaintiff's attorney in this suit, testified that he handled the sale transaction of the suit land with the defendant. This is

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because the plaintiff, though from Uganda, was then and still currently stays in China.

- **90** On 07.09.01, a written agreement was executed by defendant with the plaintiff, whereby the defendant sold the suit land to the plaintiff. The plaintiff purposely travelled from China to execute this agreement: exhibit P5. - 100 T95 By the agreement, the plaintiff bought from defendant the suit land at Shs.27,000,000/= (twenty seven Milliqh only). Shs.6,830,000/= was to be paid and was paid by plaintiff to NPART to clear the outstanding loan balance under the account of Aporolala Mixed Farm. The balance of Shs.20,170,000/= was to be paid and was paid to the defendant as vendor. | PW1 made the payments for and on behalf of the plaintiff. The payment receipts were tendered in evidence as exhibit P6 (a) (b) (c) (i) and (i^and also exhibit P8.

After receiving the money, the defendant executed a transfer of the property into the plaintiff's names in October, 2001, as per exhibit P9 (a) and (b). The title was transferred into the names of plaintiffs on 31.10.01: Exhibit P11.

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On 11.09.01 the defendant handed over vacant possession of the suit land 110 to PW1, representing the plaintiff. The hand over was in presence of the Local council leaders of the area. A hand over letter was written: Exhibit P12.

The plaintiff and PW1 worked the suit land undisturbed until February 2008, $\overline{115}$ when the defendant told PW1 that he, defendant, wanted to recover the suit land by refunding the money paid to him as purchase price.

On 17.04.08 the defendant and his family members chased away the plaintiff's workers who were on the farm. The workers were told never to 120 return to the suit land. The plaintiff protested all this to the defendant as per exhibit P13.

In April – August, 2008, the plaintiff's rice that he had planted on the suit land was destroyed by the defendant and family members of the defendant. The defendant's family members, now and then, came and forcefully occupied the suit land. This was going on even at the time of the trial of this suit. The plaintiff's workers are shot at with guns with the approval and instigation of the Defendant. PW1 has reported these criminal acts to Police and to the local authorities. The defendant and his family members have tried to forcefully carry on grazing on the suit land. All along the plaintiff and PW1 have protested against all this. The plaintiff and PW1 are

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traumatized by the illegal acts of the defendant. They therefore instituted this suit for the appropriate reliefs.

PW1 testified calmly and was consistent in his evidence. He was not broken down'at all during cross-examination. His evidence remain uncontroverted by the defendant. Court finds PW1 to be a witness of tru

The evidence of PW1 as well as the documentary evidence adduced to which the defendant was a party, prove, on a balance of probabilities that the plaintiff acquired the ownership of the suit land bonafide. Court so finds on the second issue. '• "

#### 3. What remedies are available?

145 1150 The plaintiff having proved his case is entitled to the declaration that the suit land Leasehold Register Volume 1330 Folio 16 plot No. 18 Nwoya Block 1 land at Aporolala, Pawatomero, Gulu, now Nwoya District, belongs to him. The defendant or any one purporting to claim title through the defendant, whether that person is a son or daughter or spouse of the defendant, or any other person whatsoever, has no title of ownership over the said suit land. Whatever that person does or may do on the suit land is and will be criminal trespass.

The plaintiff is also hereby granted a permanent injunction restraining the defendant, or anyone else whatsoever, be he or she, a child of the

I Cu'iif" thrt this **is a true** Copy of thvOrifiaal

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'155 defendant, or his workers, agents employees or his representatives, from interfering and doing anything on the suit land, of which the plaintiff is the sole owner.

i he conduct of the defendant against the 160 dOeSefM of forcefully trying to retake the plaintiff's land by bringing his children and other trespassers thereon, damaging the plaintiff's agricultural crops, chasing away the plaintiff's workers and using guns against the plaintiff and plaintiff's workers, all are unlawful and smack of *"Aminism"* in that they used to happen during the obnoxious Military Regime of Idi Amin that had no respect for the Rule of Law. They must not be allowed to go on with 165 . impunity now when observance of the Rule of Law is the cornerstone of governance in Uganda.

Court is satisfied that the plaintiff has been made to suffer much anguish, anxiety, and inconvenience. He is entitled to damages by reason thereof.

175 This court also takes it as contempt of court on the part of the defendant, as it appears that the defendant failed to maintain the status quo on the suit land, as ordered by this court on 23.03.09.\_\_ The defendant appears to have gone on establishing structures, chasing away the plaintiff's workers, damaging plaintiff's crops and forcefully grazing on the land, in total disregard of the court order.

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In the circumstances court awards Shs.5.0,000,000/= both general and aggravated damages to the plaintiff against the defendant.

In conclusion judgment is entered for the plaintiff against the defendant for:-

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- *1. A declaration that the suit land Leasehold Register Volume 1330 Folio 16 plot No.18 Nwoya Block 1 situate at Aporolala, Pawatomero, Gulu, now Nwoya District, belongs to the Defendant. The defendant or anyone claiming title through him, no longer has any interest in the said land.* - *2. A permanent injunction restraining the defendant, his family members, workers, agents, employees from interfering with the said suit land in any way is hereby issued.* - *3. A sum of Shs.50,000,000/= (Fifty Million) is hereby awarded as general and aggravated damages to the plaintiff against the defendant.* - *4. The sum awarded above shall carry interest at the court rate from the date ofjudgment till payment in full.*

195 It is also ordered that the defendant pays to the plaintiff the costs of this suit.

Copies of this Judgment are to be forwarded to the office of Resident District Commissioner, the Chairman LCV, the CAO Nwoya District, the Regional Police Commander, Northern Region, LCIII, LCII and LCI

I C rlif • \*t thia **ia a true** Co>y *tn* the Original 9 /-CkW / D. **lafirtrar** *n* **Datod**

Chairpersons of the Local Governments where the land is situate, with a direction that each one of them puts the plaintiff in occupation and use of the suit land.

Remmy Kasule **JUDGE**

26.11.2010

I Corsify that this is a true Copy of the Original David