Settenda Mukasa v Mwamini Twemanye Sekibaala (Civil Suit No. 361 of 2008) [2017] UGHCLD 372 (2 May 2017)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

### **CIVIL SUIT NO. 361 OF 2008**

HAMIDA SETTENDA MUKASA -----------------------------------

$\mathcal{S}$

$\overline{10}$

$\sqrt{ }$

**VERSUS**

**MWAMINI TWEMANYE SEKIBAALA ------------------ DEFENDANT**

ų

### **BEFORE: HON. JUSTICE DAMALIE N. LWANGA**

#### JUDGMENT

The Plaintiff and the Defendant are biological children of the late Haji Musa Settenda who died in 1997. They are born of the same mother who is also deceased now, but their step mother is still living. The suit land is part of a sizeable parcel of land that belonged to their late father, situate at Lukuli Makindye, Lusaka Zone 6, Kampala District. Each of the parties claim that the suit land was given to her intervivos by their late father. The Plaintiff brought this suit against the Defendant for trespass on the suit land, and seeks the following reliefs:

- a. A declaration that the suit land rightly belongs to the Plaintiff. - b. A declaration that the Plaintiff is the rightful owner of the suit land.


- c. A declaration that the Defendant has no any lawful claim over the said land and her trespassing thereon is illegal. - d. Eviction order against the Defendant. - e. A demolition order ofthe illegal structures on the Plaintiffs land. - ever f. A permanent injunction restraining the Defendant from trespassing on the Plaintiffs land. - g. Mesne profits. - h. General damages. - i. Interest on (g) and (h) above from the date of cause of action till payment in full. - Costs ofthe suit. j- - k. Any other further reliefthat this Honourable Court may deem fit and proper.

The Plaintiffs case in the pleadings is that Haji Musa Settenda their father gave portions of land to all his children including her and the Defendant, and his two wives during his lifetime. However, after the death of their father on 2/3/97 she was subsequently given an additional piece of land which is adjacent to her portion, by the trustees ofthe estate in compensation for part of her land that' could not be developed because of the overhead heavy \_\_ electricity power lines. But around June 2008 the Defendant without her consent trespassed upon her land and started making bricks, and also put up

**IO**

**2**

a temporary stall for herself. She demanded vacant possession but the Defendant did not comply.

The Defendant filed a written statement of defence denying the trespass and claiming ownership ofthe suit land. She stated that both her and the Plaintiff received their respective portions of land the suit land being part of her portion, during the lifetime of their late father, and they were confirmed owners of those portions by the trustees of his estate. She started occupying the suit land long before their father's death and had always had a charcoal store thereon.

**|O** She also filed a counter claim in which she claimed that the Plaintiff trespassed on her land (suit land) by about one metre in the process of constructing an enclosure for her developments on her portion of land. She further accused the Plaintiff of disrupting her and her tenants' business while making erroneous claims to the suit land. She seeks the following reliefs:

- **(X** a) A declaration that the Defendant is the rightful and lawful owner of the suit land to which the Plaintiffis a trespasser. - b) General damages for trespass and inconvenience caused. - c) A permanent injunction restraining the Plaintiff, her agents, servants, employees and or any person claiming under her from any further trespass and or claims over the Defendant's land. - d) Costs ofthe suit. - e) Interest of 24% on (b) and (d) from the date ofjudgment till payment in full.

**3**

f) Any other;, further remedy this Honourable court may deem fit.

In her reply to the written statement of defence and counter claim the Plaintiff dismissed the Defendant's assertions that she got the suit property from their late father as a gift intervivos as false and baseless, and contended that if the Defendant was given any land by their late father it was not the suit land, which was given to her (Plaintiff).

The Plaintiff was represented by Mr. Mpagi Sunday while Mr. Ambrose Tebyasa represented the Defendant. The agreed issues that were framed for determination by court are:

1. Who ofthe parties owns the suit land.

I\*

- 2. Whether any ofthe parties is a trespasser on the suit land. - 3. What remedies are available to the parties?

The Plaintiff is the sole witness that testified in her case. She abandoned the other two witnesses whom she had listed at the scheduling conference. The Defendant called a total offour witnesses, including herself.

Before I go into the merits of this suit I will first address the issue of res judicata which came up, and both counsel submitted on it. The Plaintiff adduced evidence to the effect that the Defendant reported this matter to the LCs in 2008, and she tendered the judgment of Lusaka Zone 6 LC <sup>1</sup> which was given in favour of the Defendant as PE7; but she challenged it because it was signed by only two LC members. Learned counsel for the Plaintiff

**(((?**

**(0**

**4**

**• I**

argued that by the time the judgment was pronounced by the LCs on 5/10/08 this suit had been filed on 11/9/08; and that it is an illegal judgment which cannot render this suit res judicata because the LCs were in office illegally. He cited authorities to that effect.

In reply on this issue learned counsel for the Defendant argued that the said judgment was presented in evidence by the Plaintiff, and she never adduced any evidence to challenge its authenticity. Pie submitted that the LC judgment is evidence of the fact that the community lay people where the suit land is situate found that it belongs to the Defendant.

I have perused the authority of Lacan Matwal Francis Vs. Jacob Ojok Otobi, Gulu High Court Civil Application No. 02 of 2011 which was cited by counsel for the Plaintiff. The trial Judge relied on Rubaramira Ruranga Vs. Electoral Commission & Another, Constitutional Petition No. 21 of 2006 and held that the LCs did not have powers to entertain the case, and the subsequent appeals as a result ofthe very first decision are all a nullity. I on that basis also find the LC judgment in this case to be null and void. It cannot therefore render this- suit res judicata. Having so found I will now proceed to address the merits ofthis case.

## Summary of Evidence

In her testimony the Plaintiff who testified as PW1 told court that their late father used to call each of the children and wives at different times and would give them their respective portions of land during his lifetime. The Defendant was given her portion in her (Plaintiffs) presence together with

**IT**

**5**

*Ul*

*(O*

Peter zziwa, Amili Senninde and their mother late Mariam Nakanwagi, which is different and far from hers, which includes the suit land.

She testified that the kibanja she (Plaintiff) was given was marked with boundary plants three of which have however, since been destroyed. A photograph showing one boundary plant was admitted as PEI. Her kibanja was given to her in 1976 and she started using it as a parking yard for her vehicles without objection from any person. A photograph showing the body of an old lorry was tendered as PE2. She started constructing buildings on her kibanja in 2000 and she was paying busuulu to Sarah Natoolo Namasole on behalf of the Kabaka since 1976. Nine busuulu payment receipts for the period <sup>2001</sup> - <sup>2014</sup> were tendered as PE6A - PE6I. She further testified that she was recommended by local authorities when applying for a lease through K. K Land and Property Management Company Ltd. Three photographs showing her unfinished 6 storey structure were admitted as PE4A, PE4B and PE4C. She also produced her application for water connection, a receipt for water connection fee, a water bill and a receipt from National water and Sewerage Corporation which were admitted as PE5A, PE5B, PE5C and PE5D respectively.

PW1 told court that in 2008 the Defendant started trespassing on the lower part of her kibanja measuring 29x8x31x11 metres by making bricks, then she constructed a house, and later she started operating a welding business in the compound of the house. When she complained to her the Defendant reported to the Local Council (LC) and meetings were held but the matter was not resolved. However, the LCs wrote a judgment dated 5/10/08 in which they decided that the disputed land belongs to the Defendant, but *2-*

**6**

*t's*

according to her some LC members disputed it. A photocopy of the judgment was tendered as PE7.

She fuithei testified that the Administrator General wrote to her accusing her of constructing a school on the beneficiaries' land as per distribution by the trustees, and by letter ordered her to stop the construction. The forwarding letter dated 8/10/08 was admitted together with its English translation as PE8A and PE8B respectively. A copy of the distribution list of the trustees/guardians, together with its English translation were tendered as PE9A and PE9B respectively. A letter to the Administrator General by the lawyers of the Plaintiff and the reply by the Administrator General were admitted as PE 10 and PEI <sup>1</sup> respectively. The Plaintiff however, disputed the distribution of estate property by the trustees/guardians because they had no letters of administration, they gave the Defendant a portion of her land, yet their late father had distributed all the land before his death and only left ar portion for a mosque.

She also told court that the family has no trustees/guardians, the Administrator General is the administrator of their late father's estate. Four photographs showing the suit land, the Defendant's structure and welding business thereon were admitted as PE12A, PE12B, PE12C and PE12D. She also accused the Defendant of violating an interim order she obtained from court in Miscellaneous Application No. 893 of 2008 by constructing structures on the suit land, and starting a welding business thereon in 2013.

In cross examination the Plaintiff told court that when their father gave her the suit land Peter Zziwa was present. Further that she (Plaintiff) witnessed the father give the Defendant her land behind the kitchen in 1983 and

**<sup>t</sup> o**

**7**

signatories planting boundary plants for her (Defendant). She disputed claims that the said boundary plants were planted in 1982 for a cultural site/shrine, or that in 1982 they went with their late father to worship/harmonise spirits. Although the land she (Plaintiff) was given was never measured at the time, she knows that part ofit is the suit land on which stands the Defendant's house, welding business and a kiosk. She is aware that Tubirye (DW4) used to operate a charcoal kiosk on the suit land, but that the Defendant's charcoal was being sold by Nakityo on the main yard not on the suit land. She said that she was not aware of a meeting where trustees distributed estate property and confirmed the deceased's earlier distribution, although she knows the on the distribution list (PE9A). She caused the Administrator General to write to Buganda land Board stopping grant of a lease over the suit land to the Defendant.

The Defendant testified as DW1. She told court that in 1982 their father first gave her the plot adjacent to the boundary plants which had been planted by Jajja Kimbowa to mark the site where the family shrine for cultural/spiritual rituals would be constructed, behind the kitchen. However, in 1983 when she developed the idea of selling charcoal their father changed and gave her the suit land which is at the main road, because it was suitable for charcoal business. This was witnessed by Uncle Kamadi Lukambagire, Hajat Mariam Nakanwagi, Hajat Sarah Nassanga and Aunt Mary Babirye, on their father's request. In the same year their cousin brother Tubirye (DW4) built for her a charcoal store on that land and their father used to assist to transport the charcoal for her to sell as he had a lorry. She employed one Nakityo to sell her charcoal until their father died in 1997. Meetings were held to organize the last funeral rites and choose the heir but the Plaintiff opposed and never

**<sup>I</sup>** *IM*

*20*

**8**

*/■ O* attended them. Five trustees/guardians were chosen, and the sub-clan head asked them to distribute the estate property before Sabiiti Kirabira (DW3) who was chosen to be the heir was installed.

On 1/6/97 the trustees/guardians convened a meeting at the home and distributed the property and also confirmed what their late father had distributed while still alive. Her plot which is at the main road and includes the suit land was confirmed. However, since their father had not given all his children land during his lifetime the trustees/guardians distributed land to seven children who had not been given. One Sulaiman Sebaggala was given the plot which had earlier been given to the Defendant before their father changed and gave her one at the main road. The trustees/guardians gave the Plaintiff another portion of land between the late father's house and their mother's house upon realising that what she had been given by their father had overhead electric power lines and she might not build there.

She further testified that after their mother's death in 2007 the Plaintiff started construction of a storeyed building, encroaching on their mother's land which was not given to her, and she also encroached on the Defendant's land (suit land) by three feet by fencing it off with a wall fence and enclosing it within her land. When the Plaintiff refused to respond to her pleas to leave her land she reported the matter to LCs who held meetings and gave their judgment (PE7), but the Plaintiff defied it and continued to dig the foundation on her land as a result ofwhich a scuffle ensued and the Plaintiff reported a case where upon the Defendant was detained in Luzira prison for two days. Efforts by different people in authority to reconcile her with the Plaintiff were futile due to the Plaintiffs lack of interest.


*fd*

*(S*

Ad

The Defendant told court that she registered her kibanja with Namasole as the landlord and she together with their other siblings were given certificates of kibanja ownership but the Plaintiff reported her through Peter Ziwa, and she was arrested and detained at Kibuye police station for allegedly forging Namasole'<sup>s</sup> signature on the certificate. Their siblings are the ones who *\$* defended her, so"she was never taken to court. The. Defendant's kibanja certificate/tenancy agreement was admitted as DEI. She told court that she also registered her kibanja with K. K Company using recommendation from the local authorities, and also registered it with Buganda Land Board. The recommendation to K. K company, the cash receipt from K. K company, and <sup>I</sup> *&* the receipt by Buganda Kingdom were tendered as DE2, DE3 and DE4 respectively.

*CS* In cross examination DW1 told court that the land which is under the electric power line now serves as the Plaintiffs compound, and that the Plaintiffutilized the plot the trustees gave her. She clarified that by the time of hi§ death their father had removed from her the plot he had first given her behind the kitchen; and that he never donated land to any one in writing.

In re-examination she said that she had registered her kibanja with K. K company in 2006 before the dispute over the suit land begun. Further that the plot which was under the power lines was not removed from the Plaintiff, she brought electricity authorities who shifted the power line and she constructed there.

DW2 was Ssebaggala Muhammud, a paternal cousin to both the Plaintiff and Defendant. He testified that after the death ofthe deceased he was given the responsibility of organizing the last funeral rites, and he was among the


tiustees/guardians who confirmed what the deceased had given out and also distributed the remaining property to the children that he had not given anything. He identified PE8 and PE9 and said that the suit land was givers out by the deceased before he died, his team of trustees only confirmed the donations by the deceased, including those of the Defendant and the Plaintiff; further that the Plaintiffs storeyed structure encroached on the Defendant's land and their efforts as trustees to reconcile the parties proved futile. He identified a letter which was written to the Kabaka by the trustees and children ofthe deceased, and it was admitted in evidence as DE5.

**I**

'

During cross examination the letter which was written by DW2 to the Registrar was tendered as PE13. He admitted that the trustees/guardians had no letters of administration to distribute the deceased's property, but that the Plaintiffnever rejected her land on that ground.

DW3 was Sabiiti Kirabira a brother to both parties and the heir of their father. His testimony was that the suit land was given to the Defendant by their late father during his lifetime. The dispute over the suit land arose after the death of their mother who had also protested the Plaintiffs construction of her storeyed structure in her compound. The Plaintiff later extended her construction which she was doing in their mother's compound onto the Defendant's land (suit land), and attempts by the family to resolve the dispute have been unsuccessful.

During cross examination he told court that he was not present when the suit land was given to the Defendant but he was told by their father and their mother, and the Defendant started using it for brick laying and charcoal selling. He testified that he used to be the driver of the Plaintiffs lorries but *^4*

**11**

**f o**

compound, not on the suit the parking for her lorries was in their father's land.

DW4 was Tubirye Joseph a cousin brother to the Plaintiff and Defendant who used to stay at their home. He testified that he knows the portions given to both parties by their father, they are adjoining plots. The Defendant's plot was given to her in his presence and their late father told her to construct on it and work from there while still alive. He said that he participated in constructing a charcoal store for the Defendant on the suit land when their father was alive and he is the one who sold her the iron sheets to roof it, but the charcoal business is no more. The Defendant currently has a welding workshop on the suit land. He told court that the Plaintiffs portion was under the power line and had coffee trees, which he assisted to uproot before she started constructing the storeyed building; and the power line was extended away from the plot.

During cross examination he confirmed that he knows the exact land that was given to the Plaintiff because he is the one who uprooted the coffee trees which were there, which is the current court yard of her storeyed, building. When asked where the Plaintiff used to park her lorries he told court that she used to park them in the compound of their father. According to him the Plaintiffs building stands on the plots oftheir mother, their father and the Defendant.

DW5 Nakkazi Aisha a neighbour testified that the mother of the Plaintiff and Defendant allowed her to do her business of selling charcoal and foodstuffs on the suit land in 2001, but she warned her that the land belongs to the Defendant who was away at her marital home, but she might wish to

*f-S*

build there any time. She found the Defendant's charcoal store on the land, and she used the place for her business until January 2016, when the Defendant s welding workshop was also there.

During cross examination she told court that the parties' mother used to tell everybody that the suit land belongs to the Defendant.

## **Issue No. <sup>1</sup> -** Who of **the parties owns the suit land**

Both the Plaintiff and the Defendant told court that their late father donated the suit land before he died. The issue is whether the suit land is part of what was given to the Plaintiff or what was given to the Defendant. The suit land is the lower part of the stretch of the deceased's land that runs along the main Lukuli road. The Plaintiff has an unfinished 6 storey structure on the land but claims that the adjoining land (suit land) is part of her kibanja which the Defendant has refused to vacate. On the other hand the Defendant testified that their late father first gave her land behind the kitchen near the three boundary marks which were planted by Jajja Kimbowa to demarcate the site where the family shrine for cultural/spiritual worship was to be constructed, but upon realizing that she wished to do charcoal selling business in 1983 he removed that portion from her and gave her the suit land which is located along the main road, because it is suitable for that business. She told court that the dispute arose in 2008 after their mother's death when *r* the Plaintiff encroached on her kibanja and enclosed a width of three feet of her (Defendant's land) within her perimeter wall fence, but that part of the perimeter wall was eventually demolished on orders of the Administrator General.

**13**

**( o**

I must say that the boundary plant which the Plaintiff showed court along the lower boundary of their late father's land is not very helpful in proving the size of the land that she was given in absence of the other three boundary plants. Moreover the Defendant disputed that evidence and told court that, the boundary plant was demarcating late Settenda's land from that of their neighbour Nalongo Nsibirwa. Court observed at the locus that the boundary plant is located along the boundary where Nalongo Nsibirwa's access road borders the land of late Haji Settenda.

On her part the Defendant gave a clear description of the land that was given to her by their father in 1983. She described it several times at the trial as stretching from the rear corner of their mother's house up to the main road on one side, and from the main road it extends to the access road which Nalongo Nsibirwa constructed later, which also demarcates the boundary of the entire kibanja of late Settenda from hers (Nsibirwa's). This description was seen by court during the visit to the *locus in quo*. She explained that the access road did not exist at the time of the intervivos donation but wascreated later as an access road for Nalongo Nsibirwa's purchaser to whom she sold a portion of her plot.

$(\circlearrowright)$

$\zeta$

$2s$

Learned counsel for the Plaintiff submitted that the Defendant failed to explain the boundaries of her land at the locus. This is not true. The challenge was that the mother's house is a rental building which has twelve rentals, six of them on either side of the building (as seen on the sketch plan of the *locus in quo*). The fact that the building's appearance is the same onboth sides made it difficult to determine which side was referred to as the front and which side was the rear as each side could qualify to be the front or the back depending on one's position. That challenge was however,

THE ORIGINAL


overcome at the locus in the presence ofthe parties, by deciding that the side of the building which is near the Plaintiffs storeyed structure be referred to ' as the front. The Defendant then explained that her four corner kibanja starts fiom the rear corner of the mother's building, stretches past the front corner ofthe building and continues up to the main road where there is a boundary plant, then downwards up to Nalongo Nsibirwa's access road. I found that explanation to be clear, and it is indicated on the sketch plan of the *locus in quo.* One of the Defendant's houses where the welding business operates was built on the suit land.

Three defence witnesses supported the evidence ofthe Defendant. DW4 who is a cousin brother to both parties testified that he used to stay with their family and he knew the adjoining parcels of land that late Settenda gave to each ofthem. He told court that he was present when the suit land was given to the Defendant, and that the Plaintiff is the one who encroached on the Defendant's land. DW3 who is a brother to the parties and the heir to their late father told court that although he was not present when the suit land was given to the Defendant their late father, mother and stepmother informed him about it. DW5 a neighbour also told court that the mother to both parties allowed her to do her business of selling charcoal and assorted foodstuff on the suit land but she warned her that the land belongs to the Defendant and she might wish to utilize it any time; that the mother in fact used to tell everyone that the suit land belongs to the Defendant.

In a bid to prove that the suit land was given to her the Plaintiff testified that it is what she had been using as the parking area for her lorries, and disputed the Defendant's evidence that she had a charcoal store thereon where she carried on charcoal selling business before constructing the house where the

**I °**

**o**

**... J**

the suit land in 2001 welding business is operated. But DW4 told court how he assisted both parties on their respective portions of land that were given to them by their father. He helped the Plaintiff by removing the coffee trees that were on her land, and he participated in constructing a charcoal store on the suit land when it was given to the Defendant during their father's lifetime. DW4 is the one who even sold to the Defendant the iron sheets to roof it. DW5 also told court that when she started operating her business on she found the Defendant's charcoal store there.

Further PE2 which was adduced by the Plaintiff does not prove that she was using the suit land as parking for her lorries. There is nothing to show that the place where the lorry appears parked in the photograph was the suit land; and no lorry was found on the suit land during the locus visit. The Plaintiff did not find it necessary to show court the position where the lorry in PE2 was parked when the photograph was taken. Moreover the Plaintiff's evidence on this aspect is rebutted by DW3 her brother who was a driver for her lorries. He told court that the parking for the Plaintiff's lorries was in the compound of their father, and during the locus visit he showed court one of the scrap lorries which was parked there and apparently written off. My observation at the locus was that the father's compound is quite far from the suit land, and the rusty scrap lorry which court saw appeared to have been, parked there for many years. DW4 also rebutted the Plaintiffs claim when he told court in cross examination that the Plaintiffs lorries used to Pie parked in the compound oftheir father.

All the above evidence rebuts the evidence of the Plaintiff that the suit land was given to her, and that she used to park her lorries there.

**16**

**1°**

**\ r** While it may be true that the Plaintiffwas paying busuulu for her kibanja the icceipts that were tendered in court do not indicate the size of her land on late Settenda's plot or whether the suit land is part of the land she was paying for. Since it is not in dispute that she occupies part of late Settenda's land it is expected that she would be given receipts in recognition ofthe fact that she is an occupant on Kabaka's land on plot 127 (with other people), but the receipts do not prove her ownership of the particular portion of late Settenda's land which is in dispute in this suit.

The Plaintiff also testified that the land was thoroughly inspected before her building plans were approved. I however, agree with the observations of counsel for the Defendant that the architectural plans, the busuulu receipts and registration documents indicate the entire Block 261 Plot 127 which the Plaintiff herself told court was a big parcel of land on which even her siblings owned portions of land. None ofthose documents does describe any particular portion of land and its location or size on that plot. They cannot therefore be said to prove ownership ofthe suit land.

Further the Plaintiff told court that her water pipes were passed through the suit land with no objection from the Defendant. But when asked about the water pipes in cross examination the Defendant told court that when the Plaintiff took them through her land it caused a dispute. It is therefore not correct to say that she never objected about them.

The Plaintiff accused the Defendant of defying a court order by constructing on the suit land, but this was not proved as no evidence was adduced to show that it was served upon the Defendant, if at all it existed. The Plaintiff

*(2.3*

**17**

**(O**

told court that she believes that her lawyer served it, but the said lawyer never testified.

Learned counsel for the Plaintiff described the Defendant's demeanor as extremely hostile, particularly to the Plaintiff, both in court and at the locus. I must say that those allegations are totally false and misleading as court never made any such observations, and learned counsel never drew court's attention to the conduct ofthe Defendant complained of. On the contrary the Defendant impressed me as a calm litigant through out the trial, who was composed and firm as a witness, and wanted court to find the truth.

**j** *Q*

**18**

It is not true that the Defendant ever demonstrated hostility towards the Plaintiff before court or that she never allowed the Plaintiffto talk during the locus visit as alleged. At the *locus in quo* I moved with both parties close to me through out the inspection ofthe suit land despite the numbers of people who were present and exhibited interest. Each of the parties showed and explained to me the basis for their respective claims and supplemented their testimonies in court by showing and explaining to me what is at the locus. The Plaintiff showed court the boundary mark she had referred to in court; what she believed to be the area of her land; and took me for a tour of her unfinished storeyed building including the features ofthe mosque, which she justified as having been her late father's wish. She even confirmed to court the area of the portion which she claimed was given to the Defendant, behind the kitchen. All this was in the presence of counsel for the Plaintiff, and without any disturbance or hostility from the Defendant. It is therefore most unfortunate that counsel makes such false allegations against a party.

It is true that the Defendant testified that the Plaintiff started construction of the storeyed structure after the death of their mother, which contradicts the evidence of DW3 that she started construction of that building before them mother died. I however, find that contradiction to be minor, and I will ignore it as it does not go to the root ofthe case.

The second aspect of this issue is the role of the trustees/guardians. According to the Defendant five trustees/guardians were chosen after the death of Haji Settenda including DW2, they confirmed the distribution of property as done by the deceased before his death, and they distributed land to the children who had not been given by their father during his lifetime. This was confirmed by DW2 one ofthe said trustees/guardians.

I agree with the Plaintiffs testimony and the submissions of both counsel that it is only administrators that have powers to transact in a deceased person's property. <sup>I</sup> however, note that in paragraph 4(c) of the plaint the Plaintiff acknowledged the additional portion of land that was given to her by the trustees/guardians, and indeed that is where part of her 6 storey building stands. She already benefited from their distribution by constructing on the land they gave her, and only introduced the wishes of her late father to construct the mosque on the land at the hearing, which contradicts her pleadings. Further her testimony that the family has no trustees and that the said trustees had no authority to distribute late Settenda's property is a departure from her pleadings, which is not allowed as pointed out by counsel for the Defendant, let alone approbating and reprobating by denying the trustees after developing the land they gave her.

**19**

*|O*

AL the above notwithstanding, both parties agree that the suit land was donated by the late Haji Settenda in his life time. The suit land does not therefore form part of his estate that required distribution, and the said distribution by the trustees/guardians could not have affected the prior donation ofthe suit land by the deceased.

All in all I find that the Plaintiff has failed to prove to the required standard that the suit land was given to her by their father in 1976 and that she was utilizing it by parking her lorries there. Her evidence on the suit land being part of the land that was given to her in 1976 was not convincing. The defence witnesses testified in a straight forward manner and impressed me as truthful witnesses. They successfully rebutted the evidence of the Plaintiff on material facts as pointed out earlier in this judgment. I therefore believe the evidence of the Defendant and her witnesses that the suit land was givento her, she was utilizing it during the lifetime of their father, and that the" -y Plaintiff'<sup>s</sup> lorries were never parked on the suit land but in their father's A compound.

I find on a balance of probabilities that their father gave the suit land to the Defendant in 1983; she utilized it and constructed a charcoal store there for her business during their father's lifetime. Their father must have known that the land he had given to the Plaintiff did not extend up to the suit land; that is why he gave the suit land to the Defendant later in 1983, and it must have been vacant until the Defendant built her charcoal store thereon, which was the reason for giving it to her.

My answer to issue No. <sup>1</sup> is therefore that the Defendant is the owner of the suit land.

**45**

**20**

**4^ O**

**Issue** No. <sup>2</sup> - Whether **any of the parties is <sup>a</sup> trespasser on the suit land.** I have already found that the Defendant is the owner of the suit land. She testified that the Plaintiff trespassed on about three feet of the suit land where she had constructed a perimeter wall for her storeyed structure on the lower side. Both parties testified that the construction was halted on orders of the Administrator General. During court's visit to the *locus in quo* the Defendant showed court the remnants of the Plaintiffs wall that had been constructed on the suit land and later demolished. The foundation was left intact, and a few bricks which were part ofthe brick wall that remained were visible on either side of the wall. The wall had been constructed about three feet within the suit land. The answer to issue No. 2 is that the Plaintiff trespassed on the suit land, which belongs to the Defendant.

That evidence of trespass is typical of the Plaintiffs arrogant, inconsiderate and insensitive actions on their late father's land generally as she constructed her building only 3-4 feet from the mother's rental structure, totally blocking its access and leaving almost no space between the two buildings, which is a great inconvenience to the occupants in moving to and from their rentals. The other side of her 6 storey building was also constructed only 2-3 feet from part of the late father's house which is occupied by the Plaintiffs step mother, and whose weakened wall on that side has scary cracks.

My findings on the above two issues have resolved both the Plaintiffs suit and the counterclaim of the Defendant. The Plaintiffs suit is dismissed while the Defendant's counterclaim succeeds.

**21**

*.1*

**<sup>1</sup> 0**

## Issue No. <sup>3</sup> - Remedies available.

The first relief sought by the Plaintiff in the counterclaim was answered by my declaration under issue No. <sup>1</sup> that the Defendant/counterclaimant is the lightful owner of the suit land. The counterclaimant prayed for a permanent injunction restraining the counterdefendant from further trespass on the suit land. Having found that the suit land belongs to the counterclaimant and that the counterdefendant trespassed on it, I find the prayer for a permanent injunction appropriate. It is accordingly granted.

The counterclaimant also prayed for general damages for trespass and the inconvenience caused. As rightly pointed out in Storms Vs. Hutchnson (905) AC 513 which was cited by counsel for the counterdefendant general damages are such as the law would presume to be the natural or probable consequence of the act complained of on account of the fact that they are its immediate, direct and appropriate result. In this case the dispute over the suit land even caused detention of the counterclaimant. Therefore in addition to the trespass she has suffered inconvenience and mental anguish. I find a sum of 8,000,000/= appropriate as damages, with interest at the court rate from the date ofthe judgment till payment in full. It is so ordered.

Concerning costs of the suit the law is that costs follow the event, and that a successful party can only be denied costs for good reason like misconduct. But the Supreme Court recognized in Prince J. D. C. Mpuga **Rukidi (John** David Christine) Vs. Prince Solomon Iguru & Another, Civil Appeal No. 18 of 1994 that there can be other good reasons justifying departure from the general rule on costs depending on the circumstances of each case, including the need for reconciliation among the contestants. In the instant

*IO*

**c>**

**22**

case I have considered the close blood relationship between the counterclaimant and the counterdefendant as they are sisters; and the need to promote reconciliation rather than foster further animosity between them. I therefore order that each party shall bear her own costs.

Dated the $\alpha$ day of $\alpha$ $\alpha$ 2017.

Damalie N. Lwanga

**JUDGE**

**RECFIPT N**

CERTIFIED TRUE COPY OF THE ORIGINAL $10 - 6 -$ REG DATE

$\bf 23$

$\leq$

$86$