Ssali v Walusansa (Civil Suit 2676 of 2016) [2024] UGHCLD 118 (3 May 2024)

# THE REPUBLTC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DTVTSIONI

# CML SUIT No. 2676 of 2OL6

FRANKLINE SSALI \_=\_ ============ PLAINTIFF

#### VERSUS

ZINGA FRED WALUSANSA--- = DEFENDANT

# BEFORE: HON. LADY JUSTICE F. LAVIA NASSUNA MATOVU JUDGMENT

#### 1. TNTRODUCTION.

a) The plaintiff filed this suit against the defendant seeking for a declaration that the defendant and his agents trespassed on his land comprised in Kyadondo Block 227 Plot L54 land situate at Bweyogerere; a permanent injunction restraining the defendant, his servants, agents and anybody claiming title under him from trespassing, alienating, dealing with or causing any transaction on the suit land beyond the defendant's well marked Kibanja; general damages and costs of the suit.

The facts that gave rise to this case were as follows:

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The plaintiff bought the above-mentioned land suit land from one Juuko Stephen in 2OO7. The said land measured 0.81 hectares out of which the defendant's family had kibanja interest of 30 decimals. After purchase the plaintiff acquired registration of the said land into his nalnes and took possession of the said land less the above mentioned kibanja kibanja interest of the defendant which was clearly marked by traditional boundary trees and a fence.

The plaintiff eventually went abroad and when he returned in 2015, he found that the defendant and his family had encroached on his land, cultivated crops on thereon and also constructed a house on the sarne. He then erected a fence around his land clearly excluding the defendant's kibanja but the defendant cut down some sections of the fence. Efforts to reach an amicable settlement of the case failed. The plaintiff therefore filed this case seeking for the aforementioned remedies.

b) The defendant on the other hand contended he together with family of the late David Musamya had been in occupation of the entire land since 1954 and the plaintiff had never been in possession of the same. That he was a bonafide occupant of the suit land who was recognised by the former registered proprietor. The plaintiff had on several occasions attempted to evict them from the said land but failed. He therefore ca-lled upon the court to dismiss this case with costs.


# 2. ISSUES

- a. Whether the defendant is a trespasser on the land beyond the 3O decima-ls known by the plaintiff. - b. What are the remedies are available?

# 3. LEGAL REPRESENTATION

The plaintiff was represented by M/s Tropical Law Advocates while the defendant was represented by M/s Kintu Nteza & Co. Advocates.

# 4. LAW APPLICABLE

The Constitution of the Republic of Uganda 1995 The Land ActCap227 The Evidence Act Cap 6 The Judicature Act Cap 13 The Civil Procedure Act Cap 71 Civil Procedure Rules, Common Law and Case law.

# 5. PLAINTIFF'S EVIDENCE

The plaintiff called three witnesses who all gave sworn evidence.

a) PW1 was Frankline Ssali the plaintiff. He testified that in 2OO7 he was approached by one Juuko Ssa-li to buy the suit land. Juuko assigned his brother Ba-lika Ali to take him to the land. Ba-lika Ali took him to the land which had clear mark stones and a house enclosed with barbed wire and

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traditional boundary trees alongside the barbed wire. Baliku told him that the said house belonged to Musamya's family who had a kibanja interest on the land and the boundaries of the same were clearly defined. This fact was also confirmed by Jjuuko who told him that the kibanja interest was 30 decimals. He conducted a search with the land registry and ascertained that Jjuuko was the registered owner of the said land.

After purchase he got the land registered into his names and took possession of the szune. He also rea-ffirmed the boundaries by putting barbed wire boundary on the defendant's kibanja without tampering with the existing boundary marks,

He then went abroad and returned in 2015. Upon his return he found that the defendant and his family had encroached on his entire land by cultivating food crops and eventua-lly constructed a house thereon. In support of his case he tendered to court a certificate of title to the said land which was admitted as PExh <sup>1</sup> plus photographs of the current status of the land which were admitted as PExh.2, An agreement between the Jjuuko and the defendant was admitted as PExh 5 while court orders of temporary injunction were admitted as PExh3 and PExh 4

In cross examination, PW1 confirmed that it was Balika Ali who showed him the boundaries of the land and that there was a house on the demarcated kibanja. That he ta,lked to the defendant and his mother who clarified that their kibanja was about 30 decimals and the rest of the land belonged to Juuko. The said kibanja was well demarcated and fenced off. He went with Balika and took

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measurements of the said kibanja in the presence of the defendant, his wife and the defendant's mother and they did not object. He also talked to the neighbours and LC 1 Chairperson who gave him an introduction letter and it was the defendant who took him to the Chairperson. He also stated that he saw the document giving Nemalansi Victoria Powers of Attorney to sell the land on behalf of Juuko Stephen. She also showed him PExh.5 before he bought the suit land. That he took possession of the suit land by fencing it off and constructing a guard house thereon.

b) PW2, was Jjuuko Stephen. He testified that he was the former registered owner of the suit land and sold the same to the plaintiff. The defendant's late father had kibanja on the suit land which was well demarcated and was about 30 decimals and he sold the land subject to this kibanja interest. In cross examination, PW2 testified that he bought the land from Senyonjo John Moris. At the time PW2 bought the land, there was a sma1l portion that had a house and had been demarcated off (by traditional boundaries) as a kibanja while the rest of the land was vacant. After purchase, he did not disturb the Musamya family that lived on the kibanja. He also agreed that he gave Powers of Attorney to his wife to sell the suit land on his behalf to the plaintiff. PW2 stated that he was ca,lled by PWl to be present when he was going to fence off the land and indeed, he was present. The defendant and his family were present as well. PW2 testified that when he owned the land, the defendant and his family never utilized the upper part of the land.

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c) PW3 was Ba-likka Ali, a brother to Juuko Stephen, who sold the land to the plaintiff. He testified that he clearly knew the boundaries of the entire land and those of the defendant's kibanja. The defendant's kibanja was 100ft by 168ft.

In cross examination, PW3 testified that he was familiar with the boundaries of the suit land; that the approximate size is about 2 acres less 3O decimals which are occupied by squatters. That PW2 left him in charge of the suit property and he used to cultivate on it thus he was aware of the defendant's extent of use on the land. He also stated that the process of surveying and fencing off the land by the plaintiff was peaceful.

# 6. DEFENDANT'S EVIDENCE

The defendant called five witnesses who all gave sworn evidence

a) DWl was Zinga Fred. He testified that he was son to Musamya Sserumunye David who died in 1997 and had been in possession of the said kibanja for over 5O years. That he acquired the interest in the suit property after the death of his father and that the said kibanja extended to the entire the suit land and not just 30 decimals. That his father had peacefully lived on the suit land without any interruption from the previous registered proprietor.

In cross examination, he stated that he recalled having made an agreement with Victoria Nalumansi in 2006 (PExh.5). He recognized PExh. S as the agreement which he signed in 2O06 and that at the time of making the agreement, they did not take measurements of the kibanja. He stated that he had land and a

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kibanja interest; both the land and his kibanja interest were about 2 acres. That his land was Block 227 Plot 154 though not registered in his name. He also stated that at the time the plaintiff bought the land, there were traditiona,l boundary trees, but they were not treing used to indicate boundaries - they just grew on the land randomly. He admitted that the plaintiff put up a fence on the suit land in 2OO7, but he did not know who demolished it. That he, and his siblings were still cultivating the suit land and he was not aware of any court order stopping him or his siblings from cultivating the same.

In re-examination he stated that PExh. S was drafted try his uncle; Mayanja Aloni, in the presence of Nalumansi Victoria and himself and that he had lived on the suit kibanja since he was born.

b) DW2, was Bbira Wanyama. She testified that she was the widow to Musamya David. That she has lived on the suit land since 1967 and that at the time, it was measuring 3 acres. That she knew that Fred Zinga had no interest in the suit land and as the customar5r heir, he was just holding the title on behalf of her late husband. That following a series of money lending transactions between Fred Zrnga, Ssempala Stephen, Mukasa Senyonjo and Jjuuko Stephen, Franklin Ssali paid off the debt and acquired the title without negotiating with the Musamya family the extent of ownership.

In cross examination, she stated that they had never had a Certificate of Title for the land where they stayed. That the family had a kibanja interest and not a legal registered interest. At the time she got to know Frankline Ssali in 1999, there were only four


houses on the suit property. That the plaintiff had never been introduced to them as the new landlord. That the traditional boundary trees were planted by a one Sempala in2006. She denied having houses on the land and stated that the family has only used the upper part to cultivate food crops. That she was not aware that they had been stopped (through a court order) from utilizing the suit land.

In re-examination, she stated that Sempala was her late husband's boss. It was her late husband who told her that the land measured about 3 acres. That currently, she does not know the size of the kibanja, but she knows its boundaries.

c) DW3 was Mubiru Muhamood. He testified that he had lived on the suit land since his birth. That he got to know the Plaintiff in 1999 when he was introduced to them by Nalumansi Victoria as the person who would redeem the title from the money lenders who had given Jjuuko Stephen money and that the suit land measured 3 acres.

In cross examination, he stated that they had never measured the size of the land but were told by their father that it was 3 acres. That in 20O6 when the plaintiff bought the land, the house in contention had a-lready been constructed on the suit land. According to him, the plaintiff came to redeem the suit land because Jjuuko Stephen had pledged it. He also stated that the boundary mark grew on its own. He also stated that he had never signed on any agreement of purchase of land.

d) DW4 was Nsubuga Abdul. He testified that he had lived on the suit land since he was born, and still resided there with his wife

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and five children. That the suit lald is about 2 acres. That the land had had many proprietors, but they had not been disturbed for the forty years he had been on the suune. Namalansi Victoria introduced the plaintiff to them in 1999 as the person who was going to redeem the title from the money lenders.

In cross examination testified that he first saw the plaintiff in 2OO7 when he went to chase them away from the suit land and destroyed their crops. That he knew the land that the plaintiff was claiming and it was about 3 acres. That did not know whether the defendant ever tried to acquire title to their kibanja. After being shown PExh.6, DW4 confirmed that the house was constructed on the suit land after the plaintiff had acquired the land. He did not know who planted the traditional boundary trees on the suit land. He also ascertained that there was a fence which was put on the suit land by the plaintiff after which the matter was reported to the DISO.

d) DWs was Fredrick Balyokwabwe. He testified that he was cousin to the defendant and was the L. C 1 Chairperson of the village from the 199Os to 2018. That he was aware of the land wrangles on the suit land from the time of Sempala Stephen which he forwarded to the DISO. That the plaintiff did not show up for the meetings with the DISO who eventually ordered for the plaintiffs fence to be removed from the suit land. That he was not aware of the plaintiffs purchase of the suit land from the defendant or any other members of the Musamya family

aPl-r In cross examination, he stated that the plaintiff was not known to him before 2007. When shown a letter written by him, he stated that that was written in relation to some bibanja holders that were on the suit land in 2008. That he knew the difference between titled land and a kibanja but he had never seen the certificate of title in the plaintiff's narne. He was shown the certificate of title and he ascertained that the defendant's name did not appea-r anywhere on it.

#### 7. LOCUS PROCEEDINGS

Court visited the locus in quo. At the locus the plaintiff showed court the suit land that he bought. Court observed that the land had a relatively newly constructed house plus several seasona-l crops such as maize, cassava and groundnuts. Plaintiff informed court that at the time of purchase the said house was not on the land.

The land also had a small house which the plaintiff claimed was constructed by him in 2008 and at that time he did not receive any opposition from anybody. He also told court that the traditional boundary trees were removed, but showed court the spots where they were.

The defendant agreed that he signed on the agreement marked by court as PExh.5, however, no measurements were made. He agreed that the spot which the plaintiff had shown court indeed had a traditional boundary mark, but stated that he did not know who removed it.

He confirmed that he and his family are the ones currently utilizing the whole land.


#### 8. PLAINTIFF'S SUBMISSIONS

Counsel for the plaintiff filed written submissions which I carefully studied and need not reproduce them because they are on the court record. Briefly, he submitted that the defendant and his family had unlawfully entered and used the plaintiff's land. That the extent of the kibanja was 30 decimals as indicated in PExh.5, but the defendant and his family had uprooted the traditional boundaries, demolished the fence of the plaintiff, cultivated crops and constructed a house on the plaintiff's land as indicated in $PExh.6$ .

He cited the case of **Sheikh H. Mohamed Lubowa**<sup>1</sup> in support of his case. He submitted that the plaintiff had proved that the land belonged to him since he possessed the certificate of title, had constructed a small house thereon and had put up a fence to indicate the extent of his ownership and the defendant's entry upon the land was unlawful and therefore tantamount to trespass.

## 9. DEFENDANT'S SUBMISSIONS

Counsel for the defendant also filed written submissions which I carefully studied and need not reproduce here because they are on court record.

Briefly he raised a preliminary point of law to the effect that the plaint did not disclose a cause of action against the defendant and ought to be struck off. That whereas the plaintiff claimed that the land was littered with food crops and his fence was demolished he

<sup>&</sup>lt;sup>1</sup> Sheikh H. Mohamed Lubowa v. Kitaka Enterprises; Civil Appeal No. 4 of 1987

did not avail proof to show that the defendant and his family were responsible.

Further that PW1 had never made any agreement with PW2 and none was produced in court. That the certificate of title tendered to court by plaintiff was a mere photocopy and could not be relied on. That PW3 who claimed to have known the boundaries of the land had stated in cross examination that he had never been part of any survey activity to ascertain the boundaries of the land. That the plaintiffs occupation of the land had never been peaceful as the defendant's witnesses had all testified that he used military operatives to suppress any resistance while he was putting up the small house and the fence on the suit land. That the plaintiff had not provided any proof of a fence on the land and the defendant and his family had lived on the land since birth while using it for their sustenance.

He therefore submitted that the defendant was a bonafide occupant as per section 29(21 of the Land Act since he and his family had been in occupation and utilization of the suit land for 28 years before the 1995 Constitution came into force.

#### 10. SUBMISSIONS IN REJOINDER

In rejoinder, counsel for the plaintiff submitted that it was clearly indicated in paragraph 5 of the plaint that the defendant had been using the plaintiffs land without his consent and without any colour of right or interest.

That PEXh. 1 (the certificate of title) had been admitted in evidence without objection by counsel for the defendant and thus the plaintiff had dispensed with his burden of proof under section 1O1 of the Evidence Act.

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He further submitted that there was no need to present a sale agreement between the plaintiff and PW2 as PW2 appeared in court and testified that the sa-le between himself and the plaintiff was not in contention.

That the fact of bonafide occupancy only applied to the 30 decimals which the defendant and his family had been using as their kibanja and not on the entire land.

#### ll. DECISION OF COURT

# a) Preliminary point of law

The case of Auto garage2 clearly explained the meaning of cause of action. In determining whether or not there was a cause of action, the plaint must show that the plaintiff enjoyed a right, the said right was violated and that the defendant is liable.

In the instant case, in the amended plaint, paragraphs 4, 5 and 6 thereof, it was clearly stated that the plaintiff bought the suit land rn 2OO7 and took possession of the same, but in 2O15 the defendant started encroaching on his land by cultivating the same and constructing houses thereon to his detriment. It is thus clear the plaintiff having bought the suit land and taken possession of the same, he had a right to enjoy and possess the same. When the defendant allegedly unlaufully entered on the said land he interfered with this right and for any damage that the plaintiff suffered as a result the defendant is liable. Therefore, prima facie the plaint disclosed a cause of action against the defendant and

<sup>&#</sup>x27;1Auto garage & others Vs Motokou (No.3) (1971) EA at 519,

the objection raised by counsel for defendant is accordingly overruled.

# b) Whether the defendant is a trespasser on the land beyond the 3O decimals known by the plaintiff.

- a Trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lauful possession of the 1and3. In Onega Obela trespass to land was said to consist of the following unjustifiable acts namely - entering upon the land in possession of another; remaining upon such land; or placing any material object upon it. Therefore, for a plaintiff to bring an action of trespass he/ she must show that that he/she was in possession of the suit land. In Tayebwas, court guided that one's physical presence on the land or use or de facto control of it does not amount to possession sufficient to bring an action of trespass as one is required to have an interest in the subject land as well. In Katarikawe6 it was stated that interests in land include registered and unregistered interests. - a In the instant case, the plaintiff led evidence to show that he purchased the suit land comprised in Kyaddondo Block 227 Plot 154 and acquired registration of the same in 2007. Soon after purchase and registration he constructed a house and

<sup>6</sup>John Katarikau)e us. William Katu.tiremu 1977 HCB 210 at 214


<sup>3</sup>Justine E. M. Lutaaga us. Sterling Ciuil Eng. Ciuil Appeal No. 11 of 20O2

a Onega Obel &Anor us. The AttorneA General HHCS. No. OO6 of20O2

<sup>.,</sup> Tayebu.ta Godfrey & Besigomue Edison us. Kagimu Ngudde Mustafa HHCS. No. 118 of2O12

fence on the same and this fact was not disputed by the defendant. Therefore, he acquired both actual and constructive possession of the lald.

The plaintiff further led evidence to show that at the time of purchase, the defendant had kibanja interest on the land measuring 30 decima-ls a fact which was disputed by the defendant who maintained that the kibanja was about 2 acres.

The plaintiff availed to court a document dated 2OLh May 2006 (PEXH 5) which was executed between the defendant and the wife of the previous land landlord Stephen Jjuuko. In that document it was emphasized that the defendant's kibanja was 1o0ft by 168ft and the previous landlord recognized the defendant as a kibanja owner of that portion of land and indeed allowed him to purchase registrable interest in the said portion. Stephen Jjuuko, the previous land lord who testified as PW2 also confirmed that the defendant's kibanja was about 30 decimals. The defendant on the other had did not avail proof to show that his kibanja stretched to 2 acres.

- At the locus the plaintiff showed court the spots where the traditional boundary trees for the said kibanja had been. The defendant accepted that there were traditional boundary trees in those spots, but stated that he did not know who removed them. DW2 testified (in her cross exarnination) that the traditional boundary marks were planted by Ssempala Stephen. a - The court observed that the house which had been constructed by the defendant on land beyond the said a

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boundary mark spots was relatively new and the plaintiff informed court that the same had been built after he had purchased the suit land and the defendant did not dispute this fact as well. The court further observed that the defendant was utilizing much bigger portion of land (about 2 acres) which was way beyond boundary mark spots and the defendant equally accepted that it was he and his family members who were utilizing the entire land.

. It is thus clear that whereas the defendant had a kibanja interest on the plaintiff's land, the boundaries of the said kibanja were clearly known to the defendant and his family and this kibanja was 100ft by 168ft as reflected in PExh. S, and the sarne was demarcated by the traditional boundary trees which were on the spots that were seen by court at the locus but apparently removed. For that reason, any occupation of the suit land by the defendant beyond the said 10oft by 168ft was unlawful and tantamount to trespass. I therefore find that the defendant was a trespasser on the land beyond the lOoft by 168ft and resolve this issue in the affirmative.

## c) What remedies are available?

The plaintiff sought for several remedies which included

- A declaration that the defendant and his agents had trespassed on the plaintiff's land registered as Kyadondo Block 227 Plot 154 land situate at Bweyogerere. Having resolved the 1"t issue in the afhrmative it is hereby declared that the defendant is a trespasser on the plaintiff's

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forementioned land beyond his kibanja interest of 100ft by 168ft.

- Consequently, the defendant should grant vacant possession of the said land to the plaintiff and an order for a permanent injunction is hereby issued against the defendant, his servants, agents and anybody claiming title under hirn restraining them from committing any further acts of trespass, alienating, dealing with or doing any transaction on the suit land beyond the his well marked Kibanja of 1o0ft by 168ft which is approximately 30 decimals. - d) General damages: The plaintiff led evidence to show that the defendant and his family members unlau{ully encroached on the suit land constructed a house thereon and also cultivated the same. He was definitely inconvenienced by the defendant's acts of trespass on the suit land. He was denied use of his land while the defendalt was enjoying it from 2015 to the present day. The plaintiff is thus entitled to general damages for this inconvenience. In the case ofTakya KushwahiriT it was held that general damages should be compensatory in nature in that they should restore some satisfaction as far as money can, to the injured plaintiff. In my view a sum of Ug.shs. 20 million as general damages would suffice. - e) Interest at the court rate shall accrue upon the general damages payable from the date of this judgment to the date of payment.

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a Kushtaahii & Another uersus Kajonyu Denis CACA 85 of 201 <sup>1</sup> ? Takg

The defendant will also pay costs of this case to the plaintiff.

#### 12. FINAL ORDERS.

Judgement is herby entered for the plaintiff against the defendant in the following terms;

- a) The defendant has kibanja interest measuring only 100ft by 168ft on plaintiff's land comprised in Kyaddondo Block227 Plot 154 land at Bweyogerere and is a trespasser on the remaining portion of the said land. - b) The defendant should grant vacant possession ofthe abovementioned remaining portion of land to the plaintiff. - c) A permanent injunction is hereby issued against the defendant, his servants, agents and anybody claiming title under him, restraining them from committing any further acts of trespass, alienating, dealing with or doing any transaction on the said remaining portion of land - d) The defendant sha1l pay general damages of Ug.shs. 20 million to the plaintiff. - e) The defendant sha,ll pay interest of (d) above at court rate from date of judgment till payment in full. - f) The defendant shall pay costs of the case to the plaintiff.


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FLAVIA NASSUNA MATOVU Judge.