THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUBENDE

CIVIL SUIT NO. 045 OF 2016
DAMANICO PROPERTIES LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
MAJOR GENERAL GEOFFREY MUHEESI :::::::::::::::::::::::::::::::::::::::::::DEFENDANT

BEFORE: HON. JUSTICE. SSEKAANA MUSA

JUDGMENT
The plaintiff filed this suit for a declaration that the defendant is a trespasser on
the suit land comprised in FRV 63, Folio 1 situated at Kabulamulilo in Kiboga District;
an order of eviction of the defendant from the said land, a permanent Injunction,
mesne profits, general damages and costs of the suit.
The plaintiff is a registered proprietor of land comprised in FRV 63 Folio 1 and
sometime in 2009 the plaintiff’s directors found the defendant and his employees
trespassing on the land by clearing and cultivating the suit land, deployment of
workmanship of about 15 men and construction of structures on the suit land.
The defendant denied the cause of action of the plaintiff and contended that he is
a lawful occupant of the suit land. By way of counterclaim contended that the
plaintiff is not the lawfully registered proprietor and sought to have the plaintiff’s
title cancelled by the Commissioner Land Registration.
The counterclaimant/defendant averred that through the title of lawful occupants
before him been a lawful occupant to the suit land for over 20 years. That sometime
in 2009, the counter-defendant/plaintiff sent its agents to the suit land claiming
ownership of the same land as registered proprietor.
The counterclaimant claimed that the plaintiff’s registration and certificate of title
are a forgery and that the counter-defendant/plaintiff has no colour or claim of
right to come onto the suit land. The plaintiff is not a bonafide purchaser for value
without notice since the action of plaintiff was fraudulent by forgery of transfer
forms, certificate of title and purporting to purchase the land free of any
encumbrances.
The counter-defendant in reply to the counterclaim contended that the allegations
of fraud and forgery by the counterclaimant are denied and baseless and
unfounded and the defendant shall be put to strict proof.
The parties filed a joint scheduling Memorandum with the following agreed facts
and issues;
Agreed Facts
1. On the 28th day of May, 1998, the plaintiff/counter-defendant was registered
as a Proprietor of land comprised in FRV 63, FOLIO 1 situated at Kabulamulilo
in Kiboga and Mityana districts under Instrument No. 294366.

2. The defendant/ counterclaimant is in occupation of the suit land.

Agreed Issues
1. Whether the defendant/counterclaimant is a trespasser to the suit land
comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and Mityana
Districts.

2. Whether the plaintiff/counter-defendant obtained registration as

proprietor to the suit land comprised in FRV 63, Folio 1, situate at
Kabulamulilo in Kiboga and Mityana Districts illegally and/ or fraudulently.

3. What remedies are available to the parties?

At the trial, the plaintiff was represented by Counsel Tuhimbise Alex. The defendant
was represented by Counsel Albert Byamugisha.
This matter was heard from Kampala Civil Division by virtue of an application by the
plaintiff’s counsel and the same was granted by the Principal Judge on 2/10/2019.
The plaintiff led evidence of 7 witnesses while the defendant had 3 witnesses who
all testified and were cross examined in court.
The parties were directed to file final written submissions that have been
considered by this court.
DETERMINATION
Whether the defendant/counterclaimant is a trespasser to the suit land
comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and Mityana
Districts.
Counsel for the plaintiff submitted that the plaintiff bought this land from
Khimchand K Shah Limited who had acquired it on 4th day of January 1969. The suit
land came under the hands of government in or about 1972 upon the expulsion of
Asians and on 21st day of May 1997, Khimchand K Shah Limited repossessed the
suit land. Upon repossession of the same land, it was later sold at 35,000,000/= to
the plaintiff and it was duly registered in their names.
The plaintiff’s witnesses and specifically PW1 testified that at the time of
acquisition the suit land was vacant with no squatters or bonafide or lawful
occupants. The said land was under supervision of the Company through Bob
Busulwa its Operations Manager from 2001 to 2007 under Bob Busuulwa and later
with James Kagoro from 2007 until 2009.
That the land was rich with natural vegetation including trees. Shrubs and grasses
which they claim that they had plans to preserve nature and also carry out
commercial farming as well to create a holiday home for the family. PW2 testified
that Khimchand K Shah Limited handed over peaceful and vacant possession and
there were no occupants or squatters or trespassers on the suit land at the time.
The plaintiff’s witnesses testified that the defendant trespassed on the land in July
2009. The said land was cleared and cultivated the same with the workmanship of
about 15 people with heavy machinery, destroyed trees and shrubs that were on
the land and burnt them into charcoal.
The defendant in his submissions contended and testified that he acquired this land
from several bibanja owners who were in occupation of the land. The defendant’s
witness DW III testified that they knew Walsh as the owner of the land and his wife
was buried on this land.
The defence counsel submitted that the evidence of PW I on vacant land was
hearsay, when she testified that “in 1998 the suit land was vacant. My husband told
me it was vacant”. The defence witness DWIII testified that the plaintiff never took
possession of the suit land or carried out any activities. He had lived in the area
since 1971 and they never knew the plaintiff as the owner of the land.
Analysis
The foundation of an action for trespass to land is possession and to maintain
trespass against a wrongdoer it is not necessary that the plaintiff’s possession is
lawful. Anyone who is in possession or is deemed to have been in possession at the
time of the trespass can bring an action for trespass. Trespass is unjustified
intrusion by one person upon land in possession (actual or constructive) of another.
The plaintiff’s case for trespass would appear straight forward upon the principles
for trespass to land once the plaintiff proved that she was registered owner of the
suit land and the defendants occupy/use the land without the plaintiff’s
consent/authority. However, land ownership and possession must investigate
whether the land in issue is not affected by the Land Act which creates interests in
land upon possession by lawful or bonafide occupants. This could be equated to
squatters acquiring land by adverse possession.
Trespass as a tort is a violation of the right to possession and the plaintiff must
show that he has the right to immediate and exclusive possession of the right which
is different from ownership. A complaint or claim of trespass however connotes
interference with or injury to possession.
The defendant in his defence contends that he was in possession and he never
entered on the land as contended by the plaintiff. He acquired interests of land of
different persons who were cultivating on this land. The general principle is that
until the contrary is proved, possession in law follows the right to possess.
The defendant contended that he was in possession and has cultivated coffee on
the entire piece of and after acquiring the interests of several persons who were in
possession at the time. The persons who were in possession of the said land were
in de facto use and occupation and therefore claimed ownership or interest as
bibanja owners or lawful occupants under the Land Act. The plaintiff’s contention
of trespass cannot stand on its own as a common law cause of action in light of
clear provisions of the Land Act which takes precedence in the hierarchy of laws in
Uganda and gives protection to persons who have taken possession of land and
remained in occupation either as bonafide occupants or lawful occupants.
Therefore, a person who cannot prove that he is in possession cannot sue in
trespass.
The plaintiff acquired this land through a purchase agreement with the former
registered owner who repossessed this land in 1998. According to the documents
of title and transfer process at land office, the Seller got registered on the land title
upon repossession on 28th May 1998 at 11:40AM vide Instrument No. 294365.
After 5 minutes the plaintiff bought or got registered on the same day 28th May
1998 at 11:45AM vide Instrument No. 294366.
It is clear that at the time the plaintiff acquired this land, they did not inspect the
land to acquaint themselves with what was on the land. The former registered
proprietors acquired this land in 1969 and they were expelled from Uganda, during
which period they were not in Uganda. They only returned and repossessed this
land and got registered on the land title in 1998. They do not claim to have been in
possession after repossessing the said land. They merely claimed that the land was
vacant in 1998. It is inconceivable that this land was vacant without any persons
occupying the same as they wish this court to believe for this period of time
between 1972 to 1998 when they purchased.
The plaintiff witness testified that the land was rich with natural vegetation
including trees, shrubs and grasses and they had plans to utilize the land and
wished to preserve nature and carry out commercial farm and create a holiday
home. What confirms to this court that the plaintiff’s directors had not inspected
the land in issue at acquisition is the fact of opening boundaries in 2008 after 10
years since they had been registered in 1998. The evidence of Busulwa (PW3) that
the land was vacant and rich in green vegetation between 2001-2009 is quite
unbelievable.
The plaintiff in their further evidence they attempted to take possession and
control over the land and it proved futile when the defendant repulsed them and
prevented them from accessing the land. They reported a case at police on 8 th
December, 2009 and they claim to have established that the defendant trespassed
on the suit land. However, PW 6 testified that around 2008 the defendant applied
for permission to utilize the land from the Chairman and the permission was
granted. This contradicts the other witnesses of the plaintiff who claimed that the
land was vacant.
The defence witnesses (Ssemwanuke) testified that in 2008 the defendant started
buying off bibanja holders and he commenced cultivation and he wrote requesting
to use the idle land within the area. The plaintiff’s directors were not known to be
owners of the land in issue through their company. The plaintiff ought to have
made it known to the area local authorities that the land in issue was theirs and
before they assigned their alleged keepers/managers-Busulwa who were not
staying on this land or in the area.
This land was never vacant as the plaintiff contends but rather the same was being
utilized by the residents as their bibanja which interest the defendant acquired
through purchase. The land was being cultivated by different bibanja owners as
stated by PWII who was a Muluka Chief for the area, and he introduced the
defendant to the bibanja holders and he purchased the said portions of land and
he witnessed some of the sale agreements. Bob Busulwa who testified for the
plaintiff as PW3 was not known to any of the residents in the area.
The claims of the trespass against the defendant must be appreciated in light of the
above facts. The plaintiff was avoiding the existing legal regime on land which
allows or recognizes persons who have held land for some time without any
interruption by the registered proprietor. The common law claim of trespass
cannot dispossess a defendant who purchased bibanja from the different owners
of the different portions of land. It is the law that possession is prima facie evidence
of the right to possession and it being good against the whole world except the true
owner, he cannot be ousted from it.
Indeed, the tort of trespass is so, inextricably, tied to possession that a person in
possession of land, even as a trespasser, can sue another person who thereafter
comes upon the land. In other words, a person who has no title over a piece of land,
but who is in possession may successfully sue if an entry is made into the land
without his consent. An action for trespass thus presupposes that the plaintiff is in
possession. The plaintiff in this case was not in possession (actual or constructive)
and could not sustain an action in trespass to land. However, a trespasser does not
by virtue of his/her act of trespass acquire lawful possession of land and cannot
sustain an action trespass over the other person who was dispossessed of or
ejected from the land.
The plaintiff contended that the alleged purchases were illegal and contrary to the
Land Act section 34(3) and 35(1) which prohibits transacting in land without express
consent of the landlord. According to counsel the actions of the defendant were
illegal since the landlord/plaintiff was not given an option to purchase.
The plaintiff’s claim for the land did not arise until the late 2008 when the plaintiff’s
directors through their agents tried to enter on the land but it was already occupied
by the defendant or other bibanja owners or lawful occupants. By this date the
cited law was not applicable to the facts of the case and it was not an enacted law
since the Land Amendment Act was, 2010 commenced on 12th February, 2010. The
actions of the defendant of acquiring the pieces of land in 2008 were not expressly
barred by law.
The persons who were occupying the land as bibanja owners or lawful occupants
did not know the plaintiff as their landlord. They at all times thought that the land
belonged to a one Walsh who had since left the country long ago. The plaintiff
never introduced themselves to the different bibanja owners to be known as the
new landlords in 1998 and their lack of knowledge cannot be blamed on them. They
were at liberty to deal with their bibanja as they so wished with the defendant in
absence of the express consent of the plaintiff. The bibanja owners could seek
consent from a landlord who was unknown to them and the plaintiff in this matter
had never sought to be known by the bibanja owners on the said suit land. See
Asuman Mugenyi v M Buwule SCCA No. 14 of 2016
The persons who were in occupation of the said land were in possession of the said
land since 1970’s and remain in possession until they surrendered their interest to
the defendant. DW2 testified that he was a resident since 1971 and he confirmed
that their where people occupying this land and that they only left the land during
the 1981-1986 war. They only returned later and continued utilizing the land until
when the defendant sought to acquire their interests in 2008. Long possession is a
defence which results in being a bonafide occupant or lawful occupant.
This court is duty bound to consider the totality of evidence lead by each of the
parties. The assessment of the said evidence makes the defendant’s evidence more
credible than the plaintiff on possession and occupation of the land in issue. This
has given this court a reasoned belief of the evidence of the defendant or a
reasoned preference of his version to the plaintiff. See Adesina v Ojo (2012) 10
NWLR p.552
The defendant is not a trespasser on this land since he acquired land interests from
several bibanja owners and lawful occupants. The defendant has established a
coffee plantation on the entire piece of land and is putting the suit land to good
use, which enhances the development in the area and is in full possession of the
suit land as confirmed by court during the visit to the locus in quo.
Whether the plaintiff/counter-defendant obtained registration as proprietor to
the suit land comprised in FRV 63, Folio 1, situate at Kabulamulilo in Kiboga and
Mityana Districts illegally and/ or fraudulently.
The plaintiff’s counsel submitted that the land was lawfully acquired from the
former registered proprietor-Khimchand K Shah Limited who had just repossessed
the land vide Certificate of Repossession No. 3037. The plaintiff paid for the said
land at a valuable consideration of 35,000,000/= which was paid in full.
Pw2 testified that he personally signed and sealed (executed) the transfer form on
behalf of Khimchand K Shah Limited in favour of the plaintiff. The other witnesses
equally confirmed that the land is registered in names of the plaintiff upon
satisfying all the requirements for registration.
It was the plaintiff’s submission that under Section 59 of the Registration of Titles
Act it is provided that all courts ought to treat a Certificate of title as conclusive
evidence, the fact the person is named on the Certificate of title is the proprietor
of the land in question.
The defendant submitted that the names of the signatories of the transferors and
transferees on the transfer form are not given. The transfer form was not attested
by any witness. In his view it was not duly executed in accordance with the law.
The defendant contends that the transfer of the land was fraudulent since it was
indicated in the transfer…the user is grazing. Which in defence counsel’s view was
false and on this basis he sought to have the title impeached.
Analysis
It is true that the transfer forms never indicated the names of the directors or
person who signed on behalf of both companies in the transaction. The companies
used their respective company seals which clearly show that the transfer was legal
and in accordance with section 132 of the Registration of Titles Act. The two
directors who executed the agreement on behalf of the companies appeared in
court as witnesses and confirmed the transfer. PW2 in his testimony and cross
examination confirmed that the company sold and an agreement was signed to
that effect and he personally sealed the same and the transfer forms.
This court cannot take the simple errors in failure to indicate the names of the
directors who signed on behalf of the company to be the basis for impeachment of
the plaintiff’s title allegedly for illegality. Transfer of title is not merely handing over
any documents to the purchaser, but documents that enable the purchaser to
secure the legal title. The plaintiff was duly handed the relevant documents that
secured their legal title and the Registrar accordingly concluded the transfer of the
land in their names without any question.
This court agrees with the plaintiff’s counsel that the defendant’s submission on
fraud is redundant, misplaced and of no legal effect. The authorities cited in
support thereof are quite distinguishable on the facts in this case. The plaintiff
legally obtained registration on the suit land without any fraud.
What remedies are available to the parties?
The plaintiff’s claim fails in the circumstances of this case and the defendant is not
a trespasser on the said land and stands dismissed with no order as to costs.
The defendant/counterclaimant’s counterclaim equally fails since the plaintiff was
lawfully registered as a registered proprietor of the suit land. The counter-claim is
dismissed with no order as to costs.
I so Order

SSEKAANA MUSA
JUDGE
18th October 2024