Timdikyeitira v Tumwine (Civil Suit 228 of 2022) [2024] UGHC 892 (13 September 2024)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO. 0228 OF 2022

### TINDIKYEITIRA ROSE :::::::::::::::::::::::: PLAINTIFF/COUNTER DEFENDANT

#### **VERSUS**

## TUMWINE FRED ::::::::::::::::::::::::::::::::::::

# Before: Hon. Justice Byaruhanga Jesse Rugyema

### **JUDGMENT**

- The Plaintiff sued the Defendant for inter alia; a declaration that there was no $[1]$ sale of the suit property but rather a money lending transaction, a declaration that the interest charged against the plaintiff was illegal, an order against the defendant to return to the plaintiff all the moneys obtained illegally from her, a permanent injunction and general damages. - In the suit, the Plaintiff contended that on or about the $5th$ day of February $|2|$ 2016, she entered into an agreement with the defendant where the defendant allegedly purchased her house at Kigaragara L. C.1 village, Bussiisi, Kahoora Division, Hoima Municipality, Hoima District. According to her, she did not sale her house (herein referred to as the suit property) to the defendant but rather, it was merely a money lending transaction. - The Defendant on the other hand, in his Written Statement of Defence (WSD) $[3]$ and counter claim, denied the Plaintiff's allegations and contended that he lawfully purchased the suit property and the purchase/sale agreement was executed to that effect. - The Defendant/Counter claimant contended that on the 15th day of July 2016, $[4]$ he entered into a purchase/sale agreement for the suit property with the Counter defendant. That he was to be given vacant possession of the suit property immediately after concluding the sale but later on, the Counter defendant failed and/or refused to avail the suit property. The Counter claimant claimed for inter alia, a declaration that he is the rightful owner of the suit property, a declaration that the Counter defendant is a trespasser, eviction, permanent injunction, general damages and interest.

- [5] On the **29/11/2023**, the plaintiff's suit was dismissed for want of prosecution with costs to the defendant. As a result, the defendant/Counter claimant was allowed to proceed exparte under 0.9 rule 20(1) (a) of the CPR. Therefore, this court shall proceed to determine the Counter claim. - The following issues were formulated for determination of the Counter claim: $[6]$ - 1. Whether the Counter claimant is the owner of the suit property. - 2. Whether the Counter defendant is a trespasser onto the suit property. - 3. What remedies are available to the parties.

### **Counsel legal representation**

The Counter claimant was represented by M/s Mwebaza & Co. Advocates, $[7]$ Hoima while the plaintiff/Counter defendant was represented by M/s Zawedde Lubwama & Co. Advocates, Kampala. Counsel for the Counter claimant filed submissions for consideration of this court in the determination of the Counter claim.

# **Standard and Burden of proof**

$[8]$ It is trite law that the burden of proof in civil matters is on the plaintiff to prove his/her case on a balance of probabilities. Whoever desires court to give judgment as to his/her legal right or liability must produce evidence to prove the existence of the facts he asserts exist; Ss.101-103 of the Evidence Act and Lugazi Progressive School & Anor Vs Serunjogi & Ors [2001-2005] 2 HCB 12 and Muller Vs Minister of Pensions [1947] 2 All ER 372. In the instant case, the burden of proof is on the Counter claimant to prove on the balance of probabilities that he lawfully purchased the suit property.

#### Issue No.1: Whether the Counter claimant is the owner of the suit property.

- $[9]$ Counsel submitted that the defendant/Counter claimant, adduced overwhelming evidence of three witnesses who corroborated DW1's evidence that the suit property was acquired by way of purchase from the plaintiff/Counter defendant, **Tindikyeitira Rose** on 15/7/2016 at a consideration of Ugx 29,900,000/=. - [10] According to the Counter claimant, Tumwine Fred (DW1), he was introduced to the plaintiff by a one Mrs. Onzima Betty who informed him about the plaintiff's property that was on sale. That the property was inspected and the

2 parties finally executed a sale agreement (D. Exh.1). DW1 averred that five witnesses i.e, Mrs. Betty Onzima, Mr. Isingoma Vitah, and others appended their signatures on his purchase agreement. That later on, they took photographs on the suit property (D. Exh.2) as proof that the sale transaction had been concluded. DW1 further stated that the Counter defendant handed over to him the original sale agreement executed between the plaintiff and a one **Kyaligonza** which was proof of the plaintiff's ownership of the suit property (D. Exh.3).

[11] The Counter claimant's evidence was corroborated by the testimony of Onzima Betty (DW2) and Isingoma Vaitah (DW3). DW2 testified as follows;

"That around the year 2016, the counter defendant came to my home and told me that she had a land comprised of a residential [house] she was selling which was located in Kigagragara in Busiisi Cell as she had an urgent financial need to solve.... I therefore contacted the counter claimant and informed him about the land and house....the counter claimant ended up paying 29.9 million shillings as total purchase price and pictures were taken as proof of sale."

**Isingoma Vaitah John** (DW3) on his part testified thus;

"Around the 2016, the counter claimant invited me to escort him to Kigaragara to witness a land and house purchase transaction which he was going to purchase from the counter defendant.... we inspected the land and house which the counter claimant liked the house whereby they negotiated with the counter defendant and he ended up paying 29.9 million shillings cash. I duly appended my signature on the sales agreement as witness No.3....after sometime I was informed by the counter claimant that the counter defendant had disappeared without handing over the suit property to him.... I confirm that the house belongs to the counter claimant."

[12] I find the Counter claimant, DW2 and DW3 credible witnesses as their evidence was clear and coherent on to how the Counter claimant acquired the suit property from the Counter defendant. They witnessed the sale transaction between the Counter claimant and the Counter defendant upon inspection of the property. The evidence as adduced by the Counter claimant and his witnesses was not challenged by the Counter defendant. Therefore, in the absence of any evidence to the contrary, I find that the transaction

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between the parties was a sale of the suit property and not a mortgage transaction, as clearly reflected in D. Exh.1.

[13] From the foregoing, I find that the Counter claimant has on the balance of probabilities, adduced cogent evidence to prove that the he lawfully purchased the suit property from the Counter defendant. The Counter claimant is therefore found to be the rightful owner of the suit property comprised in Block 17, plot 952 at Kigaragara L. C.1, Busiisi division, Hoima Municipality in Hoima district.

Issue No.2: Whether the Counter defendant/plaintiff is a trespasser on the suit land.

- [14] In order to succeed in a claim for trespass, the Court of Appeal in Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CA No. 4 of 1987 observed that one must prove; - That the disputed land belonged to the Plaintiff - That the Defendant had entered upon it, and - That entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land. - [15] In the instant case, this court has found that the Counter claimant is the rightful owner of the suit property. According to the Counter claimant, the Counter defendant was allowed to stay on the suit property as she finds alternative residence upon sale of her house on the suit land. However, when the Counter claimant wrote to her to vacate the premises for purposes of renovation, the Counter defendant adamantly refused to vacate and/or leave the suit property. The Counter defendant locked the suit premises and disappeared in oblivion. As proved during the locus visit, the Counter claimant cannot as of now access the suit property. - [16] Clearly, the Counter defendant's actions of refusing to vacate the suit property after the Counter claimant had expressed intention to occupy and renovate his house amounts to trespass, See Baiga Roberts & Anor Vs Koboko Town Council, H. C. C. A No.2 of 2015. The 2nd issue is answered in the affirmative.

# Issue No.3: What remedies are available to the parties.

[17] This court having found that the Counter claimant lawfully purchased the suit property form the Counter defendant, the Counter claimant is entitled to the following sought reliefs:

a) A declaration that the sale between the Counter claimant and the Counter defendant was valid is accordingly issued and therefore, the Counter claimant is the rightful owner of the suit property.

b) A declaration that the Counter defendant is a trespasser on the suit property and a permanent injunction retraining the Counter respondent and his agents from further acts of trespass on the suit property accordingly issues.

c)Damages: In assessment of general damages, Courts are mainly guided by the value of the subject matter, the economic inconvenience that the innocent party may have been put through and the nature and extent of the breach suffered. In Charles Acire Vs Myaana Engola, HCCS No. 143 of 1993 it was also held that:

> "A Plaintiff who suffers damage due to the wrongful act of the Defendant must be put in the position he or she would have been if she or he had not suffered the wrong."

It is also trite that in exercising the discretion to grant general damages, Court should not punish the Defendant for the breach but, rather put the Plaintiff in the position he or she was prior the breach complained of, See Boschcon Civil & Electrical Construction Co. (U) Ltd Vs Salini Construttori SPA, HCCS No. 151 of 2008. The Counter claimant/DW1 in paragraph 16 of his witness statement, he stated that he intended to use the suit premises for rental purposes and therefore, had anticipated a monthly pay of Ugx 2,000,000/=. He prayed for general damages of Ugx 192,000,000/=. However, the Counter claimant has not shown how the suit property he purchased at Ugx 29,900,000/= would fetch rent of $Ugx$ 2,000,000/= and whether the property would be guaranteed of tenants throughout the year. Taking into account of the economic inconvenience suffered by the Counter claimant as a result of the Counter defendant's actions of refusing to vacate the suit property since 2017, and the trauma and the inconvenience suffered, I am inclined to award Ugx 20, 000,000/ $=$ as general damages to the claimant.

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- [18] In conclusion, Judgment is entered in favour of the Counter claimant for the - following declarations and orders: - a) The sale between the Counter claimant and the Counter defendant was valid. - b) The Counter claimant is the rightful owner of the suit property (residential) comprised in Block 17, plot 952 at Kigaragara L. C.1, Busiisi division, Hoima Municipality in Hoima district. - c) The Counter defendant is declared a trespasser on the suit property. - d) A permanent injunction doth issue against the Counter defendant and her agents from further acts of trespass on the suit property. - e) The counter claimant is awarded General damages of Ugx 20, 000,000/= at Court rate p.a from the date of judgment till full payment. - f) Under **Section 27(1) CPA**, Costs follow the event. Therefore, the costs of this Counter claim are awarded to the Counter claimant.

Dated this 13th day of September, 2024.

Byaruhanga Jesse Rugyema **JUDGE**