Ssalongo Lwanga Gerald v Mulindwa Musa and Others (Civil Suit No. 73 of 2020) [2025] UGHC 562 (18 June 2025)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI

### . CIVIL SUIT NO. 73 OF 2020, .

SSALONGO LWANGA GERALD.......ccuivnirininiiniieiieiieiiaennnene PLAINTIFF

1. MULINDWA MUSA

2. KAMOGA PROPERTY CONSULTANTS......c0utuirnirniiannennannnnns DEFENDANTS

3. MUGERWA JOSEPH

#### 10 BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY QJOK

## udgment

The plaintiff's claim against the defendants is for fraud, breach of contract, damages for eviction of a bonafide occupant without a court order on land comprised in Mawokota Block 85 Plot 621 Bulansuku — Kavule, special damages, mesne profits and costs of the suit.

1t is the plaintiff's case that he is a bonafide occupant and owner of the suit land having inherited it from his father who purchased a kibanja measuring 3.5 acres from the late S. K. Lubega Yombo who was the mailo land owner. That his father paid ground rent for the kibanja until he died on the 21 day of July, 1993 and upon his death the plaintiff continued to farm and develop the suit land as well as pay ground rent.

That on 27% day of September, 2016, the family of the Late S. K Lubega approached the plaintiff and introduced the 1t defendant as the owner of the suit land having inherited the same from S. K Lubega. The 1 defendant requested the plaintiff to purchase his interest whereof the plaintiff conceded and the price of UGX 30,000,000/= was greed upon. That with the advice of the 1%t defendant, the plaintiff sold 4 plots off the suit land to third parties and used the proceeds to commence payment for the mailo land residuary interest. Upon paying UGX 18,000,000/ = the 2nd defendant's agents evicted the plaintiff off the suit land and

30 graded the same, destroying the plaintiff's food and cash crops. So did the I defendant and the matter was reported to Nakirebe Police Station by the plaintiff.

That the 31 defendant well aware of the facts at hand started building a house on the suit land claiming to have pur;ihased the same from the 2n defendant. The

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plaintiff caveated the suit land in 2019 and the 314 defendant purchased the same with the knowledge that there was a caveat. That the plaintiff has been deprived of usage of the land and his entire livelihood through the evictions hence suffering inconveniences. . . s

The defendants despite being served did not file their written statements of defence; the matter proceeded exparte against them.

### Representation:

Counsel Tumusiime Judith represented the plaintiff. The plaintiff did not file written submissions.

10 Issues:

- 1. Whether the plaintiff is a bonafide occupant or equitable owner of the suit land? - 2. Whether the plaintiff was unlawfully evicted off his occupancy by the 2nd defendant? - 3. Whether the plaintiff should be issued with a vesting order vesting the certificate of title to the suit land into his name? - 4. What remedies are available to the parties?

Resolution of issues:

Issue 1: Whether the plaintiff is a bonafide occupant or equitable owner of the suit land?

Section 1 (e) of the land Act provides that;

"Bonafide occupants and lawful occupants," have the meanings assigned fo them in Section 29 of the Act",

Section 29 of the Land Act provides that;

"Bona fide occupant" means a person who before the coming info force of the Constifution—

(a) Had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or

(b) Had been setfled on land by the Government or an agent of the Government, which may include a local authorify."

It was the plaintiff's evidence that he is a bonafide occupant and equitable owner of the suit land comprised in Mawokot? Block 85 Plot 621 at Bulansuku-Kavule

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having inherited it from his father who used to farm on the same. That his father the late Paskale Lubega purchased 3.5 acres from the late S. K Lubega Yombo who was the mailo owner. And his late father is buried on the suit land. The plaintiff also stated that his father and himself used to pay ground rent for the same and copies of the Busulu were tendered in evidence and marked collectively as PEX1.

The plaintiff added that on the 27™ September, 2016, the family of the late S. K Lubega approached him and introduced him to the 1st defendant as the owner of the suit land having inherited it from S. K Lubega. The 15t defendant requested him to purchase his mailo land interest in the kibanja and they agreed to UGX 30,000,000/=. That he sold off 4 plots and with the proceeds he commenced payment for the mailo land. That he paid in instalments to a tune of UGX 18,000,000/ = until the agents of the 21d defendant evicted him and his crops were destroyed since the 1t defendant had sold to him the suit land. He reported the incident to Police and the 3 defendant to whom he reported the matter to is the one now in occupation of the suit land with a house constructed thereon. That the acts of the defendants have affected his livelihood greatly and also inconvenienced him.

PEX3 the search report indicates that the certificate of title was still registered in the name of the 1¢t defendant as at 2214 August, 2022 with an encumbrance being a caveat lodged by Lwanga Gerald registered on 28% January, 2020 under instrument No. MP1- 00003287.

The busulu tickets as submitted by the plaintiff in this case date as far back as 1954 when his father was paying busulu for the suit land and eventually the plaintiff continued to pay busulu for the same. The plaintiff's occupation of the suit land was never challenged until 2019 when he filed a caveat to protect his interest in the suit land since he had been evicted off the same.

I find that the plaintiff in the instant case having stayed on the suit land for a period of over 12 years from the coming into force of the constitution and unchallenged by registered proprietor qualifies as a bona fide occupant. The defendants elected not to come to court to challenge the plaintiff's claim.

This issue is hereby resolved in the affirmative.

Issue 2: Whether the plaintiff was unlawfully evicted off his occupancy by the 2nd defendant?

35 Having found that the plaintiff is a bonafide occupant of the suit land, I therefore find that he was unlawfully evicted off the same by the 21d defendant. This issue is also resolved in the affirmative. ' i

Issue 3: Whether the plaintiff should be issued with a vesting order vesting the certificate of title to the suit land into his name?

Section 167 of the Registration of Titles Act provides for the Power of the registrar to make a vesting order in cases of completed purchase and provides as follows:

"If it is proved to the satisfaction of the registrar that land under this Act has been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase, and that entry and possession have been acquiesced in by the vendor or his or her representatives, but that a transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit, and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by section 166 in the case of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by section 166 in respect of the vesting orders mentioned there".

The conditions that should be satisfied before a vesting order is granted are outlined in the case of Ronald Oine v. Commissioner Land Registration Miscellaneous Application No. 90 of 2013, where Section 167 of the Registration of Titles Act was relied upon and these are;

a. The land must be registered under the Registration of Titles Act and the purchaser must have paid the whole of the purchase price to the vendor.

- b. The purchaser or those claiming under him or her must have taken possession of the purchased land. - c. The purchaser has entered the land and the entry has been acquiesced by the vendor or his/ her representative. - d. The transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or cannot be found. - e. In addition, the application must be made to the Commissioner Land Registration in the first instance, who for some reason declines to exercise the powers conferred upon him/her under Section 167 of the Registration of Titles Act before the applicant can move court.

In the instant case I find that the plaintiff has not met all the above conditions for this court to grant a vesting order in regard to the suit land. The plaintiff is advised

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$\mathsf{S}$

to first satisfy these conditions before a vesting order can be issued. This issue is hereby resolved in the negative.

## Issue 4: What remedies are avallable to the parties?

The plamtlff made a number of prayers in his plamt among others is special damages which have not be proved to this court, same goes for mesne profits.

Special damages are defined in the case of Mugabi John v Attorney General C. S No. 133 of 2002, as those damages that relate to past loss calculable at the date of trial and encompass past expenses and loss of earning which arise out of special circumstances of a particular case. And in the case of W. M Kyambadde v. MPIGI District Administration [1984] HCB, it was held that the guiding principle is that special damages must be specifically pleaded and strictly proved.

The plaintiff in the instant case has not proved the alleged special damages and the same are disallowed.

- 15 In regard to general damages, the court has discretion as to the quantum of damages it would award in a claim of damages. The assessment does not depend on any legal rules, but the discretion of the court is however limited by usual caution or prudence and remoteness of damage when considering the award of damages. - 20 In awarding general damages, the court would simply be guided by the opinion and judgment of a reasonable man in determining what sum of money will be reasonably awarded in the circumstances of the case.

General damages are losses which flow naturally from the defendant's act. Therefore, general damages are damages which the law implies and presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result, or the necessary result of the wrong complained of. The essence of damages is compensatory. It is neither to punish the defendant nor confer a windfall on the plaintiff. It is not also meant to punish the claimant and allow the

- defendant to go without repairing the actual loss caused to the claimant. (See Lydia Mugambe v Kayita James & Another HCCS No. 339 of 2020). - 30 In the instant case, the plaintiff has been denied quiet enjoyment of the suit land including destruction of his crops, trees and gardens which has affected his livelihood. I am inclined to use this court's powers and discretion to award him UGX 10,000,000/ = in general damages.

The plaintiff having proved his case on a balance of probabilities, judgment is entered in his favour in the following terms; ;

5)pa

- . A declaration that the 1st defendant breached the contract of sale of land entered between him and the plaintiff for the purchase of his residuary mailo land interest as a kibanja holder dated 27t September, 2016. - . Adeclaration that the 2nd and 314 defendants fraudulently and in connivance purchased the suit land well aware of the plaintiff's interest. - . An eviction order is issued against the 2nd and 34 defendants off land comprised in Mawokota Block 85 Plot 621 Bulansuku-~ Kavule. - . An order is issued that the defendants surrender the certificate of title comprised in Mawokota Block 85 Plot 621 Bulansuku — Kavule to the Registrar of Titles, Mpigi. - 5. The plaintiff is awarded general damages to a tune of UGX 10,000,000/= - 6. Cost of the suit are awarded to the plaintiff.

1 so order.

OYUKO ANTHONY OJOK

JUDGE

18/06/2025