Semugabi v Najja (Civil Suit No. 92 of 2007) [2010] UGHCLD 1 (13 August 2010)

### **THE REPUBLC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION]**

#### **CIVIL SUIT NO.92 OF 2007**

### **AGATHA SEMUGABI PLAINTIFF**

#### **VERSUS**

# **NAJJA GERTRUDE DEFENDANT**

#### **BEFORE: HON. LADY JUSTICE ANNA MAGEZI**

# **JUDGMENT:**

The plaintiff sued the defendant for trespass upon the suit land by erecting structures on it. The plaintiff produced Exhibit IDP1 to prove her claim and the court affirmed the allegation on visiting the locus in quo. In addition to her evidence PW2 and PW3 affirmed the trespass to the suit 5 land by the defendant, who built the offensive buildings. PW3 Yusufu 5 Semugabi testified that the plaintiff was Erukana Semugabi's daughter. He went on to say that although Semugabi had sold part of his kibanja he had not sold to the defendant. PW3 testified that he had been a witness when Semugabi, now deceased had given the contentious kibanja to the plaintiff before he died. That PW3 had been <sup>a</sup> signatory to the document io

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which bequeathed the land to the plaintiff and her sisters intervivos as a gift.

On the part of the defendant several witnesses were produced. The defendant said they had expanded the school. DW4 Sebunya testified sister. PW4 donated that piece of land to the school owned by Victory Church where DW1 is the Pastor. He had bought the kibanja in 1992 in which same year he donated the suit land to the church. However, Exhibit D2 indicated that the kibanja was bought on 10th January' 1994. He said **IO** purchase took place about twenty years ago. *(Discrepancy in dates of* is She continued to say that it was the owner of the contentious kibanja surprised that the present dispute arose after fifteen years since the *purchase visa vis the exhibited document of purchase were noted by court.).* DW5 testified that she had witnessed the donation of the who sold to Semugabi the donee of the kibanja to the church. She was S having bought the contentious piece of land from the plaintiff's father's 5 he was not aware that the same kibanja belonged to the plaintiff. This purchase of a kibanja, the suit land, by PW4 in 1992 where schools were built. However that the disputes over the said bibanja only arose in 2007. is


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purchase and donation. DW6 confirmed that the sister of the plaintiff's father sold the contentious land of Semugabi after he had died.

DW7 confirmed that Semugabi's sister had sold the contentious kibanja to the defendants. In addition several other defence witnesses testified but 5 their evidence was unreliable as is apparent on record. It is evident that 5 the kibanja had been donated to the plaintiffs before Semugabi died. Therefore the purchase and subsequent donation of the kibanja by Segamwenge, PW4, was irregular since Nassuna the sister of Semugabi had no Letters of Administration empowering her to sell to him IV? (Semugabi). While addressing the evidence on record and submissions of **\o** the parties, including the agreed issues for determination by this court, I find that the land in dispute had been donated to the plaintiff and others included the plaintiff Sarah Semugabi, Abati Banga, Agatha Semugabi, Mukasa Semugabi and Annet Semugabi. The donor described the donees **vs>** <sup>15</sup> as per exhibit ID1 dated 1976. The plaintiff is among the donees who as his children. PW1 was among the signatories.

In those circumstances the document could only be faulted or impeached if it never occurred/unauthentic or if it did not belong to the deceased Erukana Semugabi. The contention of paternity whether the plaintiff was


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the issue or child of the donor Erukana Semugabi is a non issue. In any case it was never conclusively proved that PW1 Agatha Semugabi was a child of the Donor by the defendant. Any person is entitled to donate his property to his children, friends, or relatives before he dies. The deceased **5** referred to the plaintiff as his children. This cannot be disputed by the **5** defendants or DW3 <sup>a</sup> cousin of the deceased who I find to be not **<sup>I</sup>** truthful. Neither did court get persuaded by the claim at the locus in quo disclaiming the 1st plaintiff as the daughter of Semugabi. This disclaimer of paternity was of no significance since these people had not testified earlier and the case had been closed in court subject to the visit to the **I©** locus. What was evident at the locus in quo could be termed as mob justice which could not be of any evidential value. Residents at the locus cannot arbitrarily determine the paternity of other neighbours' children in my view. In any case paternity was not in issue and if had it needed wished and not as his neighbours would have desired. The submission to shift the burden of proof to plaintiff's paternity, in the circumstances is untenable in my considered opinion. The contentious document was proper proof and not a disclaimer by a mob at the locus in quo. In any case Semugabi was entitled to distribute his property in any manner he


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marked Exhibit ID1 and was not contested out rightly during the trial. I have no doubt in the circumstances that the plaintiffs properly proved their claim as no conclusive evidence disclaimed Exhibit ID1 regarding the issue of paternity which could not be shifted to them. The transaction of -5 the gift was witnessed by PW3. Secondly paternity does not disqualify <sup>a</sup> **5** gift intervivos in any way. It could also be noted that when DW4 bought from the sister of the donee she had no Letters of Administration to the property of the deceased. For that reason she had no powers at all to transact the action. I find and resolve the first issue in favour of the I<sup>q</sup> plaintiff since no evidence indicated Letters of Administration authorizing **ID** Nassuna to sell to the defendant nor to DW4. I am not persuaded that absence of Busulu adversely affected the truth exhibited by the plaintiffs.

As for as the second issue regarding the fact whether the proper defendant was sued is concerned, I have no doubt that Najja Gertrude 15 had not adduced any incorporation of the legal entity of the school with proper registration with the Ministry of Education or otherwise. The sign posts do not evidence incorporation to earn the school proper status. To rely on the regulations, i.e. SI No.3, required evidence of incorporation by


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the defendant school if indeed it was a true assertion required to be believed by this court.

As far as remedies are concerned I find that the prescriptive rights require that a land suit needs to be filed within a specified period. In the 5 circumstances regarding the matter, before me, it is apparent that the 5 land was donated in 1994. The donor had no legal claim to the land in dispute having bought "air" without any Letters of Administration granting Nassuna, the sister of Semugabi, to sell the suit property. In any case it is evident that the property had already been donated to the plaintiffs. It is incumbent in the circumstances to find whether the defendant was a bonafide purchaser for value without notice within the law and therefore entitled to compensation. I don't find so. The suit is accordingly decided in the favour of the plaintiffs.

Allen 15 $15(6)2010$ Anna Magezi 28th Registient<br>Luier This<br>Allern JUDGE.

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) **CIVIL SUIT NO. 92 OF 2007**

#### AGATHA SEMUGABI ::: **:::::::: PLAINTIFF** VERSUS NAJJA GERTRUDE :::::: **::::::::: DEFENDANT**

#### DECREE IN ORIGINAL SUIT

This suit coming on the 13<sup>th</sup> day of August 2010 for Judgment before the Hon. Lady Justice Anna Magezi, read and delivered by his Worship A. G. Opifeni, Assistant Registrar, Land Division in the presence of the Plaintiff and Mr. Bamwite Counsel for the Defendant:-

It is hereby ordered and decreed that;

- The Suit is decided in favour of the Plaintiffs. $\mathbf{1}$ - $2.$ The Defendant vacates the suit land.

FEES PAID $RFCET$

DATE:

- A permanent injunction issues against the Defendant restraining 3. her from further interference with the Plaintiff's ownership of the suit land. - The plaintiff is awarded the costs of the suit. $4.$

$2nd$

Given under my Hand and the Seal of the Court this .. dav of eptember 2010.

> ASSISTANT RÉGISTRAR **LAND DIVISION**