Semakula v Kitaka (Civil Appeal No. 79 of 2019) [2023] UGHCLD 3 (19 January 2023)

### THE R. EPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT XAMPALA

#### LAND DTVISION

## CIVIL APPEAL NO. O79 OF 2OI9

# (ARISING OUT OF CML SUIT NO. 82 OF 2016 OF THE CHIEF MAGISTRATE S COURT OF ENTEBBE AT ENTEBBE)

#### SEMAI(ULA JT'LIUS

10 Through hls Attonrcg Sarch .lVcssozi Sewongana),.... ........... APPELLANT

#### VERSUS

15 KITAKA LAWRENCE. RESPONDENT

Before : La.d y .!us!!c4!sgZ!!LcL Nbe4gLBAS\_dls.

#### JUDGMENT

## Introductlon:

- The plaintifffiled the suit before the Chief Magistratc's Court at Entebbe, claiming to have bought a kibanja on 27th November, 2015 from Mr. Aloysius Kibuuka; that he immediately took possession; erected a fence wall; and utilizing it since then. He claimed that the said Aloysius Kibuuka had acquircd the said kiZranja from his late mother, who had acquired it in 1998. 20 - 25

However that the defendant had showed up later and through one Sarah Nassozi Ssewanyana his attorney started claiming owncrship of the said ,rilranja, threatening to demolish the his wall fence unless thc plaintiff paid thc dcfendant a sum of Ugx 3O,OOO,OOO/=

The said attorney having failed to honor the promise to produce the documents as agreed, namely, the power of attorncy, a certihed copy of the defendant's passport; details of the telephone's number and email address which were the pre-condition for the payment, the said


agreement could not be effected. The threats of demolition of his wall continued however which prompted the defendant to file this suit.

The plaintiff sought a declaration therefore that he had lawfully acquired the kibanja interest on land comprised in Block 379, plot I338 land at Katalc; a permanent injunction ; and costs

5 The defendant as the current registered owner of the suit land claimed to have bought the land from one Lawrence Kibuuka, a brother to Aloysius Kibuuka on 1Ou, July, 2015, free from encumbrances, and after carrying out a thorough search on the land. He thereafter got registered onto the title on 26th April,2016.

He claimed further that when the plaintiff was approached he had conceded to regularize his purported interest upon payment of Ugx SO,OOO,OOO/=, and had even made an initia.l deposit of Ugx TO,OOO,OOO/= as per the terms of that consent but thereafter defaulted on payment of the balance. 10

In his counterclaim therefore he asked court to declare the plaintiff a trespasser on the land; sought a demolition order; a permanent injunction; general and punitive damages and dismissal of the suit.

At the trial, the issues were:

- 7) Whether the platnttfJ has a klbanJa lnterrst on the land comqtrlsed ln block 397 plot 7338; - 20

2) Whether the platnttjJ ts q. trespo.sser on the suit land cotnprised tn block 397 plot 7338;

## 3) Rernedles avqllc,ble.

- The trial court however ruled in the favour of the plaintiff. Dissatisfied with the decision, the defendant, filed this appeal raising two grounds of appeal: 25 - 7. Thqt the learned tria.l ;era,glst"o:te erred. in lano and. fact uhen she Jalled. ln her dutg to subJect the whole evldence to exha:ustlue scrutlng. - 2. Thst the leanted trial ma.glstrdte erred. ln law and Jact uhen she held thst the respond.ent had lauJallg obtalned. a klbanJ(r interest on the s.y'rt la:nd. get dld not obtdln the consent ol the reglstered otoner,

2 \\*et

I will consider both grounds of appea.t jointly.

The appellant asked the appellate court to set aside the judgment and orders of the trial court and grant costs to him.

## RcD"Gsc tatlol,-:

5 The appellant was rcprcsented in court by his attorney, Ms Sarah Nassozi Sewanyana. The powers of Attorney were granted to her on 28s July, 2016, in respect of handling transactions relating to plot 7338, block 379 la'nd at Kata.le. (DExh 2).

## Eaq.lu(ltlo,r of the evld.ence:

This being a first appeal the appellate court is required to subjcct the cvidence to a fresh and exhaustive scrutiny and thcn draw its own conclusions, bearing in mind that it nevcr observed the witnesses undcr cross-cxamination. (See; Scngnr Luanga v So,m Go,llta.d,nga SCCII No.4A/7995). This court has the duty to re-evaluate the evidence to avoid miscarriage ofjustice as it mindfully arrives at its own conclusion. 10

The law on trespass is wcll articulated in .ftrstlne E.ltr. N, Lutaagd. vs. Stlrllng Cirttl

E^gl^eerlng Co. Clvll Appeal No. 7 7 ol 2OO2 [SC,f where it was held that the act of trespass occurs when a person makes an authorized entry upon land, and thereby interferes or portends to interfere with another person's lawful possession of that land. The burden lies on the plaintiff to prove that the defendant illegally entered on to the suit land. 15

A plaintiff has the burden to prove the facts as alleged by him/her; and is deemed to discharge that burden if he adduces evidence sufficient to raise a mere presumption that what he asserts is true, enough to persuade court to rule in his/her favour. 20

[]ut that burden may shift to thc defendant, requiring him/hcr to adduce evidence sufficient to support a rcbuttal of that presumption against him/her. (See also.. S. IOI, S. 7O2 and S. 7O3 ol the Evldence Act Cap 6 and Mud.ttllarr & 5 Ors Vs. Kaga.nJa & 2 Ors (Ctt ll Sutt 2O2 of 2oo9) I2o14l UGHCLD 34).

To prove ownership, the rcspondent/plaintiff Mr. Kitaka l,awrence relied on the evidence of two witncsses and a sale agrecment PExh-I which is dated 27th November,20lS. The appellant/ defendant on his part relied on the cvidcncc offive witnesscs and among his documents is a.sale agreement dated lOth July, 2015, (DExh D) between him and Raymond Nalseera, who testified

as (Dw7). It was not in dispute that he was the registered owner of the land comprised in Btock 379, plot 133a. 30

uJ"J'6 3

In the said agreement, I)urI was the duly appointed agent by Lawrence Kibuuka, the person who had sold land to the appellant. DurI in that respect held powers of attorney, DExh C, dated 12th June, 201 5.

In the same transaction the appellant as the purchaser had been represented by Sarah Nassozi. Ssewanyana who testified as Dut2 having been granted with powers of attorney in 2016, about a year after the sale agreement was concluded.

One would therefore be right to assume that at the time the said agreement was made, Nassozi had no powers to transact on the appellant's behalf, thus bringing to doubt the validity of the sale trarrsaction between the said Julius Ssemakula {appellant) and Lawrence Kibuuka.

It is also not in dispute that on 20th December, 2016, a consent agreement had been entered between the said Sarah Nassozi this time as a duly appointed attorney for the appellant and l,awrence Kitaka, the respondent; and in the presence of counsel the respondent's counsel. 10

The appellant's claim was that the respondent had by that consent conceded that he had not rightfully acquired the kibanja.

15 The tria.l court in dealing with this consent had this to say

Since thE parties decided to proceed. with the heaing and the ptaintilf lad earlier on contested the edrlier dgreement ds hdving been entered. bg duress, and the dekadant had decided not to contesl that application, it goes wilhout saAing thdt the earlier agreemenl uds rendered unenforcedble. Parties dre therclore dt liberlg to enter into fresh negotiations if lleA so uish. TttE Vgx TO,OOO,OOO/= which was laler to be deposited as secJitg for costs should nolu be returned to the pldint{J bg the defendant since the plaintiJJ has uon this suit.

It was the respondent's contention that hc had only entcred into the consent to save his property the plaintiff agreed to pay the said sum. Hc attributed the failure to honor the consent on the failure by Sarah Nassozi, the attorney for the defendant/ appellant to present the documents necessary for the transfer, which included the power of attorney, a certified copy of the defendant's passporU details of the telephone's number aIld email address which were.

These requirements or conditions were not spelt out in the consent itself but as in all transactions, were absolutely relevant to the transaction before purchasing the land, as an act of due diligence.

30 Put2, Jo}l.r, Sekitooleko was a witness to the agreement dated 27th November, 2015, between the plaintiff/ respondent and Aloysius Kibuuka which from the contents of that agreement was a share from his father's estate.fPExh ,).

The agreement read as follows:

I Kibuka Aloysius of Kalale Maganja haue sold to Mr. Lawrence Kitaka of Kisasi Zone mV kibanja plot on mg litled land which I got from mg late falher Kibuuka Emmanuel.

DExh B was another document which the parties did not dispute. This was Memorandum of Understanding (M. O. U) dated l4rh January, 2016. By this document the three siblings, Veronica, Aloysius and Lawrence as beneficiaries of the estate of their late father Dmmanuel Kibuuka had agreed that their elder brother Lawrence was to get 37 decimals and bctween the two siblings Veronica and Aloysius they would share 62 decima.ls.

The land to be sharcd was subdivided to create several plots, that is: plots 7336to 7347 Buslro. The disputed kibanja was on plot JYo.f 338 and from the MOU, its size was 12 decimals. On page 2 of the MOU, it is indicated that Lawrence Kibuuka had interests in plots -1337, -1339, 7340 qnd I34, as agreed upon by the three siblings.

The total area apportioned to l,awrence Kibuuka under the M. O. U however appeared to exceed the 37 decimals that had been agreed upon. Be that as it may, from that M. O. U, he obviously held no interest in plot 1338, which he sold to the appellant and which is the subject of this appea]. The appellant did not offcr any explanation as to how under those circumstances he subsequently became the registered proprietor of plot I338-

Counsel for the appellant's argument was that the trial court failed to scrutinize the context of the M. O. U on how the land had been shared and forgot that the plaintiff/respondent was allocated a different kibanja r,ot the one in dispute. He did not elaborate.

The argument was not only misleading but was also not supported by any evidence since in any case, the respondent had not been a party to the M. O. U. lt was acknowledgment though that the respondent did indeed acquire a kibanja out of the same area and this, from someone who had also acquired a share in the property. 20

!-urthermore, counsel argued that thc person who sold to him (respondent) admitted to have sold what did not belong to him. These were assertions made by Durg Det. Constable Eslat. Neither the investigation report nor the statement of admission attributed to Aloysius Kibuuka were however availed in court. 25

Dur3 also admitted that he never recordcd any statement from the respondent. The case against Aloysius Kibuuka was never followed up. This court therefore found it hard to attach any weight

or value to Dur3's evidence. 30

Court a.lso noted that as per the sale agreement dated 10th July, 2015, the transaction between the appellant and Lawrence Kibuuka was for 12.5 dccimals which was to be surveyed off from the entire piece of land.

\tJ't

As the agreemenl PExh 7 indicates, unlike the portion purported to have been bought by the appellant on 1oth July, 2015, (DExh D), lhe kibanja sold to the respondent on 27rh November, 2015 had very specific dimensions.

5 This was the land located adjacent to the road, in the corner. The measurements were clearly indicated. However the lard bought by the appellant was vaguely dcscribed in the agreement as 12.5 decimals to be surueyed from the land compised in block 397, plot 92O measurtng one acre.

It is clear from the record that at the time the sale was concluded however, no such survey had ever taken place to determine the actual sie, location and positioning of the land sold to the appellant. If it did, no such evidencc was on rccord.

The possibility could not therefore be ruled out that what the appellant purchased as kibanja may not have been the same as what was eventually registered on the title in his names following the conclusion of the M. O. U.

Sectlon 35 @) oJ the Land Act, Cap. 227 is clear. A change of ownership of dtb effected bV the ouner bg sale, grant and succession or olhentise shall not in ang wag affect the existing lauful interests or bona fide ocanpant and the neu owner shall be obliged to respect the existtng interest. 15

That section is applicable to this case to the extent that when the title was finally registered on 28s April, 2016 in the namcs of the appellant for plot 7338, the existing equitable interests acquired by the respondent from Aloysius Kibuuka on 27th November, 2015, who was the undisputed owner of plot .1338, as pcr the MOU were not considcred.

The appellant had no equitable interest in the portion he bought on lOrh July, 2015 since as established earlier by this court, hc had not by that time duly authorized Sarah Nassozi to handle the matters concerning this land. The said transaction could not therefore be considered as valid.

But even more intriguing was the fact that what is mentioned in that sale agreement is btoclc 397, plot No. 92O. The block number however for the disputed land was block 379, while the plot number was plot: I338. 25

The same block number, block No. 397 also featured in Sarah Nassozi's evidence at cross examination, which confirmed that this is what she had sold to the appellant. (rekr to page 29 of the record of proceedings). Land being what it is, these were completely different locations.

In the event that this was an error then it ought to have been brought to the attention of the court for correction. Such discrepancies in plot numbers and block numbers had to be explained arld ironed out by way of an area schedulc and survcy report. It was in the appellant's interest to avail that information. 30

The trial court also correctly noted that Lawrence Kibuuka himself was registered on the title on 5'h November, 2015 at the time when there were still misunderstandings between the siblings. These were settled under the MoU and as rightly pointed out, he did nothing to challenge the distribution under the MoU, sigrred in January, 20l6 or successfully challenge his brother,s authority to sell the kibanja to the respondent or other disputed actions by him.

The burden shifted to the appellant to prove also that by the time he got his title in April, 2016, Aloysius Kibuuka had not acquired any such interest as alleged. That he had no share in plot -1338 to pass on to the respondent.

He was left to at least prove to court that the respondent was occupying Iand which was allocated to Lawrence Kibuuka, the appellant's predecessor in title, as per the Mou. The appellant did not discharge that burden or provide evidence which would have proved his counterclaim that tlre respondent was indeed a mere trespasser on plot I338. 10

AII in all, the claim therefore made by the appellant that the respondent did not conduct a search; secure the consent of the regrstcred owner; or even bother to establish who the registered owner was, did not arise under those circumstances.

After the conclusion of that M.o.u, and as a matter of fact, it was the appellant who before securing the title had to seek prior consent of Aloysius Kibuuka as the legal owner of ptot ,3gg, taking into account the prior intercst of the respondent who had lar{ully acquired rt,e kibanja from him. As rightly noted by court and in submissions, the Mou was never disputed, challenged

or set aside. 20

It was also besides, not enough for the appe[ant to report the respondent,s questioned possession on the land to Police without challenging him in court. (RGr. DExh E). This court noted that it was not in fact until the respondent filed the case against the appellant that he (the appellant) had woken up to pursue his purported interest concerning this land.

It is the conclusion by this court therefore that L,awrence Kibuuka had made a transfer of the mailo interest in land comprised in plot rgg8, to the appeltant, land that did not belong to him. 25

Against that backdrop, this court would have no basis to justiry the setting aside the decision arrived at by the trial court. The two grounds of appeal are accordingly dismissed.

Costs of this appeal alld of the lower court awarded against the appellant.

Alexand.rq. Nkonge Rugad.ga

Jud.ge

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