Rukidi & Others v Kyobhuhooro Katanga (Civil Suit 46 of 2007) [2022] UGHC 125 (25 August 2022)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CS-0046-2007

### 1. ENOCK RUKIDI

**2. ENOS TUMUSIIME**

3. WILLIAM KATATUMBA

**4. ROSEMARY KIRUNGI**

(Executors of the Estate of the Late Prince John **Barigye) PLAINTIFFS VERSUS**

# **MRS. MIREL KYOBUHOORO**

KATANGA :::::::::::::::::::::::::::::::::::

**BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

#### JUDGMENT

#### Background.

This case has a long history of litigation. It is worth noting $\pi$ that the Plaintiff (the late Prince John Barigye) passed on as this case was being prosecuted. Following the death of Prince John Barigye in 2011, his executors took over its prosecution in 2014. The case was first brought before the Mbarara District Land Tribunal by the Plaintiff on 9<sup>th</sup> November 2004. By the time land tribunals were abolished, it had not yet been concluded. The Plaintiff and the Defendant continued to try and mediate this case but by 2007, they had failed to resolve their contention. This matter was therefore transferred to this court.

Plaintiff, from the amended plaint filed on 18th June 2009 $[2]$ brought this suit against the Defendant under trespass and malicious damage to property. It was the Plaintiff's case that:

> 1. He is the registered proprietor of land comprised in Kashari Block 6 Plots 9, 10 and 35 situate at Rubindi Kashari, Mbarara District and constituting a dairy farm.

2. At all material times, the late Arthur Katanga had been a temporary occupant on part of this land and when he passed away the Plaintiff's mother and later on Plaintiff himself allowed the Defendant and her children to continue using the house and the banana plantation which the Plaintiff's father had put up for them until they could find an alternative place to shift to.

$-2.5$

- 3. The late Arthur Katanga's original homestead was on a piece of land with a defined boundary limited to the residential home distance away from the Plaintiff's homestead. In or about the year 1990 the Defendant requested to exchange her homestead for another site near to the Plaintiff's homestead for security and safety since she was living in isolation which the Plaintiff accepted on humanitarian grounds and the old homestead was demolished and exchanged for the equivalent land letting the former piece of land converted into the Plaintiff's grazing land but the Defendant has refused to let it revert back to the Plaintiff's grazing area and has even cultivated the area between the new house and the site of the old house against the Plaintiff's advice. - 4. The Plaintiff constructed for the Defendant an access road that connected Katanga's homestead to the existing village road and Ibanda- Mbarara road. - 5. After sometime of using this road the Defendant abandoned its use and proceeded to dig a road through the Plaintiff's farm cutting and burning vegetation therein and the pasture on the Plaintiff's farm, an act that amounts to trespass and wilful destruction of pasture. - 6. The Plaintiff called two meetings of relatives, friends, LC 1 officials, District Council of the area and the RDC of the district to whom he presented his complaints and exposed the Defendant's unlawful activities to which she admitted and promised not to commit further acts of trespass but she has since resumed digging the road and destroying pasture in the Plaintiff's farm.

- 7. In or about the 15<sup>th</sup> day of March 2004 the Plaintiff addressed his complaint to the Defendant, offered her a number of solutions to the dispute which included the defining boundaries and defining the access road. - 8. In or about June 2006, the Defendant forcefully brought a herd of goats onto the Plaintiff's land which are still in the said land and have caused considerable damage to the Plaintiff by bringing disease to his cattle. - 9. In or about April 2007 the Defendant forcefully cut the perimeter fence of the Plaintiff and unlawfully constructed a road through the Plaintiff's grazing land. This caused grave damage and inconvenience to the Plaintiff by opening up his farm to thieves who broke into his pump house and stole parts of his engine and also dug up water pipes. The opening also enabled other people's cows to enter and graze in the Plaintiff's farm thus bringing disease to the Plaintiff's cattle. - 10. In April 2009, the Defendant forcefully brought 53 head of cattle onto the Plaintiff's land, the Plaintiff removed them and took them to Rubindi Gombolola headquarters but the Defendant brought them back by force. This was done twice until the Plaintiff used police through the IGP to persuade the Defendant to take back the cattle to their original farm in Nyabushozi. The Plaintiff incurred expenses of keeping the cattle at the Gombolola headquarters and back to Nyabushozi in Kiruhura district. - 11. The Defendant committed the acts complained of above inspite of an interim injunction order issued by the Mbarara District Land Tribunal on 29<sup>th</sup> April, 2005 which order was still in force. - 12. The Defendant has maliciously lodged a caveat against the Plaintiff's title. - 13. The Defendant continues to trespass and cause damage to the Plaintiff's farm and has refused all offers from the Plaintiff for an amicable settlement of the dispute.

The Plaintiff prayed for judgment to be entered in his favour with the following declarations/orders,

- 1. The Defendant be declared a trespasser on the Plaintiff's land and be evicted from the part that does not belong to her. - 2. A permanent injunction against the Defendant, her servants, employees and agents be issued restraining them from committing acts of trespass by constructing illegal roads, houses, grazing there, cultivating any part there, etc. - 3. The caveat be removed. - 4. That the Defendant removes her goats from the suit land. - 5. That the Defendant be arrested and imprisoned for disobeying the lawful interim injunction order. - 6. That the Defendant the Defendant allows the Plaintiff to have the area formerly occupied by the Defendant revert back to him as a grazing area. - 7. That the Defendant closes the road illegally constructed in the farm and follows the instructions of the Plaintiff and defines her boundaries as comprising the area occupied only by her house and banana plantation. - 8. Special damages. - 9. Costs of the suit.

In her amended written statement of defence filed on 21<sup>st</sup> August **2014, the Defendant stated inter alia that:**

- 1. She is a widow of the late Katanga Arthur who had been a customary tenant and bonafide occupant of the suit land of about 50 acres of land for a period of over 60 years. - 2. The Defendant and her family have for the above stated period, occupied and utilized the suit land unchallenged by the Plaintiff, his predecessors, and or his agents for the said period. - 3. The Defendant, who married the late Katanga in 1947, found the deceased already occupying the same land. - 4. At the time of marrying the late Katanga, the Defendant found the deceased settled on the upper part of the land where he had his huts, a small banana plantation and

some area where he was cultivating seasonal crops; while utilizing the lower part for grazing his cattle and goats.

- 5. The Defendant has an abandoned settlement, which is still visible, three abandoned kraals which are marked by the existence of old Banyan (emitooma) trees as well as a disused cultivation area, which is still visible with cultivation hedges. - 6. These visible features indicate and confirm her occupation and utilization of the suit land for the stated period. - 7. The Defendant has buried her late husband, six children on the disputed land. - 8. The defendant shifted from the old settlement on top of her banana plantation to the bottom of her banana plantation because of the numerous graves located at the first homestead. - 9. The Defendant denies that she exchanged this portion of land with the Plaintiff, because both pieces of adjoining land constitute her customary holding on which she is a bonafide occupant. - 10. That her homestead on the upper part of the suit land where she has several houses including a goat's house, the defendant also has a banana plantation and an area where she cultivates seasonal crops; this area has a perimeter fence all around to stop goats and cattle from straying on the Defendant's said banana plantation and gardens. - 11. The Defendant and her family utilize the lower part of the suit land for grazing purposes. - 12. The Defendant, her late husband and family used to keep both cattle and goats on the lower part of the suit land but following the death of her husband, the defendant kept selling the cows to raise school fees for her children until the cattle were finished sometime in the 1990's. - 13. The Defendant still keeps her goats on this lower part of the disputed land to-date.

- 14. The Defendant and her late husband had started the process of surveying off the suit land with the late Gasyonga, but died before securing a title deed. - 15. The access road has been in existence. - **16.**The interim order had long expired. - 17. The Plaintiff suffered no special damages at the Defendant's instance. - 18. She was justified to lodge the caveat to protect her interest in the suit land. - 19. She is not a trespasser but a lawful occupant of the suit land as a customary tenant and bonafide occupant.

In her counterclaim, the Defendant averred that:

1. She was a bonafide occupant and Kibanja holder of land measuring 50 acres, out of the registered land of the late Prince John Barigye, now in dispute.

The Defendant/Counter-defendant prayed that:

- 1. The suit be dismissed and judgment entered in her favour. - 2. A declaration that she is a bonafide occupant and a Kibanja holder on the suit land measuring about 50 acres. - 3. Costs of the suit.

### The Plaintiff's evidence:

To prove his case, the Plaintiff led evidence through 6 $[3]$ witnesses.

PW1, Prince John Patrick Barigye told court that he knew the Defendant as the widow of his late cousin Arthur Katanga. That at the time of his death, the late Katanga was staying in Kariro where he had been looked after by the Plaintiff's father who took him in at a tender age having been orphaned.

That the Plaintiff's late father had built him a house at Kariro on the Kibanja which he gave the late Katanga and he was buried there. That the land on which the Kibanja was located belonged to the

Plaintiff's late father. That he did not know whether his father had made boundaries for the said Kibanja.

The late Katanga did not have cattle on the land and his children did not have homes on the said Kibanja but for the widow.

That in 1992, the Defendant fearing for her safety, having been attacked by robbers several times, approached him and requested him to build on another site on the land near him.

He gave the Defendant the new site and contributed iron sheets and bricks to build a house. The two executed a verbal agreement with the Defendant to exchange her old homestead, demolish it for the new site. The old homestead was converted into a grazing area.

That however, when he sent his farm manager to fence off the Defendant's new home so that his cows do not damage her home and plantations, the Defendant objected. That the graves belonging to the Defendant's late relatives are in this enclosure.

That he had no problem with the Defendant settling on the new and old site as her Kibanja. The problem he had was that the Defendant had placed a caveat on **Block 16 Plot 35** (his land) claiming one hundred acres thereof on basis of a piece paper from DW3 instructing a surveyor to survey and curve off fifty acres. That the Plaintiff had put up a road for the Defendant to access her land but the Defendant who did not want it destroyed his barbed wire and put up another road in his land.

That it was not true that the Defendants had kraals on the land but there were old grazing units built on his land by road contactors who built the Ibanda road. That the Defendant's late husband and children were buried in the enclosed Kibanja for which he had no dispute over. That this enclosed area was between four to five acres.

That his late father never consented to the survey of the suit land and neither had he. That he had no intention of closing the Defendant out of her Kibanja but what he wanted from this court was a declaration that the land was his and that the Defendant had no claim to it save for the Kibanja she was in occupation of and removal of the caveat.

On cross-examination, PW 1, Prince John Patrick Barigye told this court that at the time when the Defendant's late husband was given the Kibanja he was over ten years. That the late Arthur Katanga did not have any abandoned homestead outside the enclosure currently being occupied by the Defendant. That the late Katanga had cattle

which he kept in Katebe and not the suit land. That the disputed portion was on plots 35, 9 and 10 of Block 16. That the extent of the Kibanja is where the Defendant had his house, banana plantation and graves of the late Katanga and their children.

PW 2, Mr. Bamugyeya Erieza testified on oath and told this court that he was the farm manager of the Plaintiff having started work in March 1976. That he knew the boundaries of the Plaintiff's land and also knew the Defendant as an in-law of the Plaintiff. That she was married to the late Katanga Arthur whom he found had a home and plantation enclosed with barbed wire on the land.

That the land outside the enclosure belonged to the late Sir Charles Gasyonga and the late Katanga was not working the land outside his enclosure. That the late Katanga never had any cattle and he was the one supplying him with milk daily. That the dispute between the Plaintiff and Defendant was as a result of the Defendant claiming fifty acres from the Plaintiff's farm and putting a caveat thereon. That he did not know where the Defendant's fifty acres were. That the Defendant had no abandoned kraal and never had any cattle there. That the Defendant moved to the new homestead in 1995 near the Plaintiff after robbers had attacked her several times. That the Plaintiff agreed on condition that she exchanges the new site for the old one but later the Defendant refused so the Plaintiff decided to let her retain both homesteads. The two homesteads were in the same enclosure and the graves were near the old homestead. That there are no old homesteads outside the enclosure. That the old homesteads were road gang camps for road contractors.

That he is the one that transported the bricks used to construct the new homestead.

$\psi$

On cross-examination, PW 2, Mr. Bamugyeya Erieza told court that he knew the Kibanja that the late Gasyonga gave to the late Katanga. That the Kibanja has boundary marks of emiko, emitooma and fencing poles. That the boundaries he found are the ones still there. That he did not know who erected the boundaries. That the road gang settlement was outside the present enclosure and at the time he started working on the land, it was already abandoned. That the enclosed settlement was about four acres or slightly more. That the Defendant's boundaries changed when the Defendant shifted to her present home and refused to abandon the old home.

PW3, Mr. Deogratius Biira told this court on oath that he had been the LC 1 chairperson since 1986 and knew both parties to the case. That at the time of his death, the Defendant's late husband, had a banana plantation and area for cultivation given to him by the Plaintiff's father. That the Plaintiff's father built him a house and planted for him a banana plantation. That the boundary for the land was marked by emitooma and emiko. That the late Katanga never had any grazing land in the area but had cows in a ranch in Kakoma, Kashari, Kakoma near Katebe. That the late Katanga was buried on the land he was given. That the parties were in court because the Defendant wanted to take land outside the Kibanja that was given to her husband. That the Defendant had never had a kraal on the land.

On cross-examination, PW 3, Mr. Deogratius Biira told court that he was not present when the late Gasyonga was giving the late Katanga land. That his land was less than half a mile from the Plaintiff's land and the boundaries of the Defendant's land were constructed by a one Yayiro on instruction of the late Gasyonga to prevent cattle from destroying Katanga's crops. That the Defendant had no abandoned homestead or kraals outside the enclosure of her Kibanja.

PW 4, Mr. John Rwamazima told this court on oath that he was a neighbour to the Plaintiff. That he was also given his land by the Plaintiff and the Defendant was his neighbour. That he has been in occupation of his land since 1962 but found the late Katanga already on the land. That the late Katanga had three houses and banana plantation on the land. That the land was enclosed and fenced with barbed wire, fencing poles, emitooma and emiko. The land even had a gate. The land outside the enclosure was a grazing area for the Plaintiffs father. The late Katanga had no cows on the land but in Katebe and also no kraal. He only had a banana plantation. The Defendant later shifted to another site within the

enclosure. That the dispute between the two parties was because the Defendant wanted to have land outside the enclosure yet it belongs to the Plaintiff. The Defendant moved to a new site after the death of Katanga. The Defendant built the house where she resides to date.

On cross-examination, PW4, Mr. John Rwamazima told court that he did not know how the late Katanga got the land because he found him already on the land and settled in the enclosure and he never cultivated outside the enclosure.

PW5, Mr. Rwakishaija Andrew, testified on oath and told this court that he was the chairperson LCIII Nyakashasha, Kiruhura District. That the Plaintiff was is elder cousin. That Katanga was buried on the Kibanja given to him by the Plaintiff's father. That this Kibanja had a banana plantation and a residence. That the Kibanja had a fence which still stood to date. The fence was comprised of emitooma and emiko. That when the Defendant's house collapsed, she was assisted by the Plaintiff to build another house within the enclosed Kibanja. The late Katanga did not have any other land or homestead outside the enclosure. He did not have any cattle or kraals there too. The Defendant had graves within the enclosure. The late Gasyonga never had a dispute with Katanga.

On cross-examination, PW5, Mr. Rwakishaija Andrew told court that he did not know how the late Katanga got the land but found him staying on the Kibanja on which he was buried. That there is no old settlement outside the enclosure and the late Katanga never had any kraals in the area.

PW6, Mr. Edward Kiraaka, told this court on oath that the Plaintiff was his brother and the Defendant was married to his late cousin Katanga Arthur. That the late Katanga used to stay on a Kibanja on the land of the late Gasyonga. That he was given this land by the late Gasyonga and it measured about five acres. The land had no boundaries then. That there were no conditions attached to the land when Katanga was given the land but this did not mean that he could take whatever size he wanted. That the late Katanga did

not have any cattle or kraals on this land. That the Defendant moved into a new house on the Kibanja and left the old house. That the Plaintiff assisted the defendant to build her new house. The dispute was that the defendant is claiming more that which was given to her late husband Katanga. That the late Gasyonga left a will that was read and the will did not talk about giving 50 acres of land or more to the late Katanga.

On cross-examination, PW6, Mr. Edward Kiraaka told court that he was not around when the late Katanga was being given land. That he did not know the size of the Kibanja but it was a homestead. That the late Katanga never had any cattle on the land. That to his estimation, the Kibanja measured around five acres.

#### The Defendant's evidence.

The Defendant brought five witnesses to disprove the $[4]$ Plaintiff's case.

DW1, Miriel Kyobuhooro, testified on oath that the Plaintiff was her brother in-law. That the Plaintiff was chasing her away from her land. That her interest was in the Kibanja where her she found her late husband staying in 1947 when she married him. That the late husband had cattle in the homestead and also had a herdsman called Kataha. That they shifted from the said homestead but there are remains of cement for the floor, *mitooma* trees in the kraal where cows used to stay. That at the new site, they had a banana plantation and also built four homes thereon. That by the time the shifted, they had one hundred heads of cattle. That they shifted the kraals about five times. That she used the cattle to raise school fees and that is how they got finished. That she did not know how her late husband got the land from the late Gasyonga or know how big it was but could estimate it to be fifty acres. That she had documents that reveal that her late husband had been given the fifty acres by the late Gasyonga. That she used to cultivate the land but was stopped by the Plaintiff. That her children and husband who died were buried on the Kibanja.

On cross-examination, DWI, Miriel Kyobuhooro told court that they were communally grazing on the land with the Plaintiff. That her husband told her about the fifty acres but never showed her the boundaries and it was on this land that her abandoned home was. That the land was not fenced. That she put the caveat on the land to protect her fifty acres of land and did not know about the one hundred acres. That she knew PW6 but he was not her neighbour. That she constructed the road to her house since it had been closed by the Plaintiff.

DW2, Enfrance Rukuba testified and told this court that he knew both parties to the suit. That it was the late Gasyonga that gave the land to the late Katanga. That the Defendant has a banana plantation, house and also had goats on the land which died. That there were *mitooma* trees on the land to show that cattle were on it. That there were graves for the deceased children, a kraal and the mitooma trees were shelter for the cattle and goats.

On cross-examination, DW2, Enfrance Rukuba told court that the late Gasyonga gave the late Katanga land in 1947. That at that time DW2 was about fifteen years. That the boundaries of the land had not been set by the time both Gasyonga and Katanga died. That Katanga had his own cattle from which he got milk.

DW3, Rev. Canon Byekwaso testified and told court that he worked for government as an assistant registrar of titles for twenty years. That in 1973, he was county clerk in Mbarara. That he filed a mutation form and instruction to measure land dated 8/1/1973. That the land to be mutated belonged to the late Gasyonga and was Block 16 Plot 1. That in the document he was instructing the government surveyor to measure and survey off land measuring fifty acres from the land of the late Gasyonga. That this was the suit land in dispute.

When the witness tried to tender in the two documents, it was objected to by counsel for the Plaintiff, the two documents were placed on the record as ID 5 and ID 6.

On cross-examination, DW 3, Rev. Canon Byekwaso told court that in land office he was working as a clerical officer in the section of land titles and also a custodian of the strong room whose duty was

to keep land titles and records concerning land titles. That he was available to the Registrar of titles to execute errands.

That he was not a surveyor or lawyer by training and in1973 he was called a land titles clerk. That by law, the mutation form is to be signed by the registered proprietor of the estate approving the new plot Subdivided, the acreage of the new plot. That the mutation had his signature for and on behalf of the officer in charge. That the officer in charge at that time was the District Surveyor. That he signed on his behalf. The form was not signed by the registered proprietor and without his signature, the mutation could not be registered. That as a clerical officer, the mutation form was not valid for purposes of confirming title in the land.

In re-examination, DW3, Rev. Canon Byekwaso told court that he did not know why the mutation form was not signed. That the form was partly filed on instruction of the late Katanga who told him he had been given the land as a present by the late Gasyonga.

DW4, Nathan Kataha proceeded by way of a written witness statement. In his statement, he told court that the disputed land belonged to the late Katanga Arthur. That the land was given to him by the late Gasyonga in 1947 plus fifty heads of cattle. That he was one of the people taking care of the cattle on the disputed land. He took care of the cattle until he left for school in 1951 at which point his brother continued. That there was an access road to the late Katanga's disputed land.

On cross-examination, DW4, Nathan Kataha told court that the late Gasyonga did not plant boundaries on his land and had no written document giving Arthur Katanga the said land. That the late Gasyonga appointed him and his three siblings to graze his cattle on the land. That when he left for studies he didn't return. That the king didn't have cattle on the disputed land. That the late Arthur had cattle on the disputed land.

DW5, Naomi Nyangweso testified and told court that she was the daughter of the Defendant and the land belonged to her parents. That the land was given to them by the late Gasyonga and her

family had occupied the land since 1947. That the land was approximately fifty acres. That the emitooma showed where they had settled before and *amatongo* showed the abandoned six homesteads.

That the said trees were planted by the herdsmen that took care of her father's cattle as shades for the cattle. That the land dispute arose when they wanted to put other cattle having sold the previous ones to raise school fees.

That the Plaintiff refused to give them the fifty acres that his father had given to the late Arthur Katanga and wanted them to remain where they were.

On cross-examination, DW5, Naomi Nyangweso told court that she did not know the signature of the late Gasyonga and whether it was on the mutation form. That she could not see any other signature on the mutation form confirming that her father was entitled to fifty acres. That she did not know whether the land given to her father had boundaries marks. That the process of surveying was still ongoing by the time her father died. That the Plaintiff has never built a house for her mother. That the late Gasyonga had earlier given the late Katanga two hundred acres but reduced them to fifty acres. That no one had sued the Plaintiff to enforce the gift. That they were currently not occupying the fifty acres. That the fifty acres are currently being occupied by different people and the Plaintiff's cattle were also grazing there.

That their house, plantation and compound is approximately five acres or four acres. That since her childhood, the enclosure on their compound has existed. That they have six abandoned settlements.

### Proceedings at the locus in quo.

This court visited locus on two occasions, that is on 1st **[5]** December 2020 and 2<sup>nd</sup> February 2021.

At locus, PW2, Bamugyenya Erieza while on oath showed court the residence of the Defendant. He told court that the Defendant requested the Plaintiff to stay near him because she had been attacked by robbers. He showed court the abandoned homestead which was marked by a *muko* tree. He pointed out the area he fenced off with *ruyenje* and poles with barbed wire. He walked

court along the barbed wire that he planted. He showed court a corner tree that marked a boundary between the Defendants old homestead and new homestead. He told court that he was supposed to subtract the old homestead by fencing it off and leaving the Defendant with the new homestead but the Defendant refused. He showed court the old and new road that was constructed by the Defendant through the suit land. He also showed court where the gate to the Defendant's home was. He also showed court the graves of the Defendant's relatives, the new area that the Defendant had moved to and banana plantation. He pointed out that the banana plantation was in the old homestead. He showed court the house he helped construct for the Defendant from bricks he made.

When cross-examined, he told court that the fenced off area belonged to the family of the Defendant and the surrounding area was for the Plaintiff.

PW4 told court that at the time the family of the Defendant, shifted to the new homestead, Katanga Arthur had died and was buried in the old homestead. He showed court the burial site.

DW5, Naomi Nyangweso showed court several abandoned settlements marked by *mitooma* trees and kraals that were left behind by her family as they moved. She told court that they moved into the enclosure in or about 1984 or 1993.

When cross-examined, she told court that she only knew four of the abandoned settlements and the rest were known by the Defendant. She told that her father was given fifty acres but did not know why it was not fenced off like the other area they were occupying.

DW2, Enfrance Rukuba showed court the abandoned settlements marked by *mitooma* trees. She moved court around the land she said belonged to the Defendant. She told court that the land was used communally for grazing before and after the Defendant's late husband was given the land.

DW4, Nathan Kataha could not move court around the suit land owing to his frail health condition. He however showed court the land the Defendant's late husband was given. He told court that the king, the late Gasyonga had no cattle on the land and had never

grazed on the land. He told court further that he stopped herding the Defendant's cattle in 1951 and did not know what happened thereafter. That the late Gasyonga never showed the ate Katanga any boundaries but simply showed him where to stay and did not know the size of the land.

#### Representation.

The Plaintiff was jointly represented by M/s Kahungu -<table>

[6] Tibayeita & Co. Advocates and Rwakafuzi & Co. Advocates while the Defendants were represented by M/s Kwizera & Co. Advocates. Both counsel filed written submissions which I have given due consideration.

#### The burden of proof.

[7] It is trite that in court disputes, whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him or her. He or she bears the burden of proof. (See S. 100 to 105 of the Evidence Act and Besigye Kiiza vs Museveni Yoweri Kaguta and Another (Election Petition No.1 of 2001) [2001] UGSC 3).

Guided by the above legal position, I shall embark on the merits of this case.

## Analysis and decision.

At scheduling, the parties agreed to the following issues for [8] resolution:

- 1. What was the extent of the Defendant's customary holding? - 2. Whether the Defendant has trespassed onto the Plaintiff's land. - 3. What remedies are available to the parties?

# Issue 1: What was the extent of the Defendant's customary holding?

[9] The parties to the instant suit are in full agreement that indeed the late Katanga Arthur (the Defendant's late husband) was given land by the late Gashonga (the Plaintiff's father) which he took over and occupied. What is however in contention as I understand it is the size of the land which the late Arthur Katanga passed to the Defendant upon his demise.

DW1, Miriel Kyobuhooro on her part told court that she estimated her late husband's land to be fifty acres. That she got documents from her late husband's personal file stating the size to be fifty acres. When cross-examined, DW 1 told this court that her husband told her that the land was fifty acres but never showed her any boundaries and her land was not fenced. That she lodged a caveat to protect her fifty acres which she was using and did not know about the one hundred acres.

DW3, Rev. Canon Byekwaso told court that he filed documents including an instruction to a surveyor and mutation form to curve off fifty acres from Plot 35 Block 16. When cross-examined on the said documents, DW3 told court that since the Registered Proprietor of Plot 35 Block 16 had not signed on the mutation form, the mutation form was not a valid legal document for purposes of confirming title in the land.

DW4, Nathan Kataha told court during cross-examination that the late Gashonga did not plant boundary marks on the disputed land.

DW5, Naomi Nyangweso told this court that the approximate size of the land was fifty acres. That she did not know if the land had boundary marks or not. She further told court that their house, plantation and compound were approximately five acres or four acres and were fenced with barbed wire. That the enclosure has existed since she was a child.

PW 1 told this court that the source of the conflict was that the Defendant had lodged a caveat on Block 16 Plot 35 (his late father's land) claiming one hundred acres of land. That the land belonging to the Defendant was that which was enclosed and he had no dispute over it. The enclosed area measured between four to five acres. During cross-examination, he repeated that the land belonging to the Defendant measured four acres.

PW 2, Bamugyenya Erieza corroborated PWI's testimony by stating that the land belonging to the late Katanga was enclosed in a barbed wire fence. That the dispute arose over a caveat lodged by the Defendant on Block 16 Plot 35 in which the Defendant claims

fifty acres but he did not know where those acres were. That the size of the enclosed land was about four acres or slightly more.

PW3, Mr. Deogratius Biira told court that the Defendant's land was within an enclosure that was raised by a one Yayiro and that the Defendant had never left this enclosure.

PW4, Mr. John Rwamazima told court that the late Katanga's land was enclosed and fenced with barbed wires and had a gate. That the dispute arose because the Defendant wanted to have land outside the enclosure yet it belonged to the Plaintiff.

PW5 told court that the Defendant's land was fenced off and the fence still stood. That the late Katanga did not have any land outside the enclosure.

PW6 told court that the Defendant's land measured five acres. That the land was given to the late Katanga with no boundaries and did not know how the existing boundaries were made. That the dispute is because of the fact that the Defendant was claiming land bigger that what her late husband was given. When cross-examined he told court that he did not know the size of the disputed land but it was a homestead. That to his estimation, the homestead was five acres.

The burden of proving the size or extent of the Defendant's holding lay heavily on the Defendant. This was so because she desired this court to give judgment in her favour in regards to the acreage she claimed belonged to her late husband.

From the above evidence the Defendant wanted this court to believe that the land given to her late husband measured fifty acres, she failed to prove on a balance of probabilities that indeed the land measured fifty acres. In her evidence she stated that she estimated her land to be fifty acres, never knew its boundaries and knew nothing about the one hundred acres in the caveat she had lodged.

This court had the opportunity of looking at the caveat that the Defendant lodged on Plot 35 Block 16 on 6<sup>th</sup> July 2004. The caveat contradicts with her testimony. In the said caveat, paragraph 7 of the affidavit in support states that her occupancy of and developments on the land were on approximately one hundred acres.

The Defendant's witness DW3, Rev. Canon Byekwaso who sought to rely on a mutation form that stated that fifty acres should be curved off from Plot 35 Block 16 admitted that the said form was not legally effective since it was never signed by the registered proprietor of the land.

Be that as it may, I have looked at the said mutation form and it is dated 8<sup>th</sup> January 1973. From the testimony of PWI, his father (the registered proprietor) died in 1982. This court is left to wonder why close to nine years after the mutation form was made, the Defendant's late husband failed to obtain the consent or signature of the registered proprietor to effectuate the mutation.

That being said, DW5 further made it hard for this court to believe the content of the mutation form when she told court during crossexamination at locus that the effort to survey and curve off the land started in 1982.

On the other hand, the Plaintiff's witnesses PW2, PW3, PW4, PW5, PW6 were consistent in their testimony regarding the fact that the Defendant's land was enclosed and it measured five acres. DW5 also corroborated them when she told court that their house, plantation and compound were on approximately five acres or four acres and were fenced with barbed wire and that the enclosure had existed since her childhood.

It is therefore the finding of this court that the extent of the Defendant's late husband's land was that land that was fenced off and within the enclosure. This is so because whereas PW1, PW3, PW4, PW5, PW6 and DW5 all agree that the land belonging to the Defendant's late husband is enclosed and fenced off, they do not clearly know the exact size of the said enclosed land. They are all not sure of its size.

In conclusion, the enclosed or fenced portion of land forms the estate of the Defendant's late husband Arthur Katanga.


## Issue 2: Whether the Defendant has trespassed on the Plaintiff's land.

[10] Before I go into the merits of this issue, it is incumbent that I lay down some general principles on the tort of trespass I believe are relevant to this issue.

Trespass to land consists in any unjustifiable intrusion by one person upon land in possession of another. (See Justine E. M. N. Lutaaya vs Stirling Civil Engineering Co. Ltd Civil Appeal no. 11 of 2002)

To support an action for trespass, it is not necessary that there should have been actual damage. Trespass is therefore actionable per se. A person who is in possession of land can maintain an action in trespass on that land. Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another. (See Clerk, J. F., Lindsell, W. H. H., & Dugdale, A. M. (2006). Clerk & Lindsell on torts. London: Sweet & Maxwell at page 842)

Proof of ownership is prima facie proof of possession, unless that another person is in possession, but where there is a dispute as to which of two persons is in possession, the presumption is that the person having a title to the land is in possession. (See for example Herbert vs Thomas (1835) 1 C. M & R. 861 and Jones vs Chapman (1847) 2 Ex. 803.)

Guided by the above principles, I will commence to resolve this

[11] It is not a disputed fact that the person in possession of **Plot** 35 Block 16 Kashari County, Ankole District at the time of commencement of this suit was Prince John P. Barigye (the Plaintiff) having been registered as proprietor of the same vide instrument no. MBR. 11023 on 15<sup>th</sup> March 1989.

It is also an agreed fact that the Defendant lodged a caveat on Plot 35 Block 16 Kashari County, Ankole District claiming approximately one hundred acres on the said land. This suit was brought to court to inter alia compel the Defendant to vacate the said caveat.

PW1, Prince John Patrick Barigye, on the other hand claimed that the Defendant had illegally constructed an access road through his farm which he wanted closed. PW1 further testified that there was an alternative access road his late father had constructed for the

Defendant but she refused it and decided to construct the disputed one. Both PW 4 and PW5 corroborated this by telling court that the Defendant constructed another road to her house through Plot 35 Block 16 Kashari County, Ankole District which further sparked

PW 1 further told court that the Defendant did further trespass on his land when she introduced goats and cattle to his land which were later on removed after a series of meetings with local authorities. This evidence was unchallenged by the Defendant.

DWI the Defendant did not deny constructing the new access road and closing that which had been constructed for her. She also did not deny having found another road by the time she got married to the late Arthur Katanga.

During the visit to the locus in quo, PW2, Mr. Bamugyeya Erieza told court the new road was the one court had used to access the disputed suit land.

From the facts before this court, I would deduce from them that the Defendant's action of constructing a new access road through the Plaintiff's land to her land was the most notorious act that culminated into her action of trespass on Plot 35 Block 16 Kashari County, Ankole District.

In the circumstances, I answer the second issue in the affirmative. The Defendant trespassed onto the Plaintiff's land when she constructed a new access road through it.

## Issue 3: What remedies are available to the parties?

[12] From the amended plaint, the Plaintiff had sought for special damages, which claim was abandoned during trial. The Plaintiff further sought for the following:

## 1. a declaration that the Defendant be declared a trespasser and evicted from the part that does not belong to her.

From the record, PW1, Prince John Patrick Barigye, during his examination in chief, he told court that he did not have a problem with the Defendant retaining both homesteads and banana plantation the new one and the old one that she had left.

According to counsel for the Plaintiff, the Plaintiff abandoned the area enclosed in the fence as belonging to the Defendant.

Having held as I have done on the second issue, that the Defendant was a trespasser in as far as she constructed another access road to her home. I in the same regard declare her a trespasser in as far as the new road is concerned. The Defendant is ordered to close the new road

The Defendant is to retain and limit her possession to the area enclosed or fenced off as originally given to her late husband the late Arthur Katanga on Plot 35 Block 16 Kashari County, Ankole District.

2. A permanent injunction against the Defendant, her servants, employees and agents be issued restraining them from committing acts of trespass by constructing illegal roads, houses, grazing there, cultivating any part there, etc.

This prayer was also abandoned and the same was never canvassed by counsel for the Plaintiff in their submissions. This court shall not make a pronouncement on it.

## 3. That the caveat be removed.

The Plaintiff sought that the caveat lodged on Plot 35 Block 16 Kashari County, Ankole District by the Defendant be vacated.

It was the submission of counsel for the Plaintiff that the Defendant throughout the case showed no justification for caveating the land as she had no legitimate interest in the Plaintiff's land outside her enclosed area.

It is trite that a person with a caveatable interest in land can lodge a caveat on land to protect their interest from alienation. (See Boyes vs Gathure [1969] EA 385). It is also in this regard that anyone lodging a caveat without reasonable cause shall be liable to pay damages if the

caveat causes loss to the registered proprietor. (See Section 142 of the Registration of Title Act).

In the instant case, the Defendant was justified to lodge a caveat on Plot 35 Block 16 Kashari County, Ankole District for the protection of the interest that her late husband had in the suit land. The only issue was that she was, just like all the parties to this suit, not aware of the extent of her late husband's portion in the land. An issue that has been determined by this court.

The Defendant is therefore ordered to vacate the caveat she lodged on Plot 35 Block 16 Kashari County, Ankole **District** immediately.

# 4. That the Defendant removes her goats from the suit land.

This prayer was abandoned by counsel for the Plaintiff who submitted that the goats were no longer on the land.

5. That the Defendant be arrested and imprisoned for disobeying the lawful interim injunction order.

This prayer was also abandoned by counsel for the Plaintiff who submitted that the said interim order was overtaken by events.

### 6. That the Defendant allows the Plaintiff to have the area formerly occupied by the Defendant revert back to him as a grazing area.

This prayer was abandoned. Counsel for the Plaintiff submitted and the testimony of the Plaintiff corroborates it, that the Plaintiff abandoned the claim for the area enclosed in the fence.

#### 7. Costs of the suit.

It is an established principle of law that costs of any action, cause or matter shall follow the event unless court for good cause orders otherwise. (See Section 27 (2) of the Civil Procedure Act). The Plaintiff being the successful party in this case would ordinarily be entitled to the costs

However, I will not make an order for costs in the spirit of harmony and reconciliation of both parties since they are neighbours and closely related.

Each part shall therefore bare their own costs.

### 8. Damages.

Counsel for the Plaintiff submitted from the bar that the Plaintiff be awarded damages. The prayer for damages was not placed in the plaint.

This court will therefore not award damages.

- [13] In summary, the following are my orders: - 1. Judgment is entered in favour of the Plaintiff. - 2. The Defendant is to retain and limit her possession to the area enclosed or fenced off on Plot 35 Block 16 Kashari County, Ankole District. - 3. The Defendant is declared a trespasser on the new road she constructed through the Plaintiff's land. - 4. The Defendant is ordered to immediately vacate the caveat vide instrument no. MBR 15223 lodged on Plot 35 Block 16 Kashari County, Ankole District.

5. Each party shall bear their own costs.

I so order.

Dated, delivered and signed on this 25<sup>th</sup> day of August 2022.

Joyce Kavuma Judge.