THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMP ALA
(LAND DIVISION)
CIVIL SUIT NO. HCT-00-LD-CS-0260-2017
KATO HUSSEIN ·............................................................
· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ········PLAINTIFF
VERSUS
OGING JOSEPH ·..........................................................
· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ········DEFENDANT
BEFORE: HON. JUSTICE BERNARD NAMANYA
JUDGMENT
Introduction:
1. This case considers competing claims of ownership of a Kibanja by both the
plaintiff and the defendant, against the legal requirements for acquisition of a
Kibanja by purchase under the Land Act (Cap 227). The disputed Kibanja is
situated on land comprised in Leasehold Register Volume 2078 Folio 16
Kyadondo Block 203 Plot 412 Land at Nabweru. The plaintiff claims to have
purchased a Kibanja on the said land measuring 100ft x 50ft x 38ft x 95ft
(hereinafter "the suit land") from a one Hajji Hassan Bulwadda with the consent
of the registered owner (Hassan Walubi Bulwadda) in 2013. On the other hand,
the defendant claims ownership of a Kibanja measuring l acre which he claims
to have acquired from a one Auke Mary in 2012.
Representation:
2. The plaintiff was represented by Mr. Robert !rumba from M/s Tumusiime,
Irumba & Co. Advocates while the defendant was represented by Ms.
Tumwebaze Immaculate from Mis Tumwebaze, Kiiza & Co. Advocates.
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The plaintifrs evidence:
3. The plaintiff produced six witnesses to prove his case: PWl (Kato Hussein),
PW2 (Hassan Saidi Bulwadda), PW3 (Muhama Kawese Lumbawo Serwanga),
PW4 (Wakib Bunya), PW5 (Nasaka Juliet) and PW6 (Simon Katabu).
4. The plaintiff adduced the following documents that were exhibited:
i). Exh.Pl -A copy of the agreement of sale between Hajji Hassan Bulwadda
and Kato Hussein dated 16th September 2013;
ii). Exh.P2 - Photograph showing suit land (undated);
iii). Exh.P3 - Certificate of title in the name of Hassan Walubi Bulwadda for
LRV 2078, Folio 16, land at Nabweru;
iv). Exh.P4 - Land sale agreement between Kato Hussein and Najjembe Agnes
dated 19th October 2013;
v). Exh.P5 -Receipts of payment of refund by Kato Hussein;
vi). Exh.P6 - Agreement of sale between Kato Hussein and Nasaka Juliet
dated 8th October 2013; and
vii). Exh.P6 - New Age Surveyors Boundary opening report on Plot 412 Block
203, Kyadondo dated pt December 2018.
The defendant's evidence:
5. The defendant produced 1 witness to prove his case - DWI (Oging Joseph).
6. The defendant adduced the following documents that were exhibited:
i). Exh.D 1 - Purchase agreement for a Kibanja measuring 1 acre dated 31st
August 2012;
ii). Exh.D2 - Decree from the Chief Magistrates court ofNabweru Holden at
Nabweru, Civil Suit No.36 of 2014 dated 22nd January 2015; and
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iii). Exh.D3 -Court proceedings from the ChiefMagistrates court ofNabweru
at Nabweru, Criminal Case 172 of 2014: Uganda v. AI. Going Joseph &
Another.
Locus in quo visit:
7. On the 12th day of May 2023, court carried out a locus in quo visit to the suit
land at Nabweru North, Nansana Division in the presence of counsel Robert
Irumba for the plaintiff, and counsel Tumwebaze Immaculate for the defendant.
Both parties were also present.
8. The plaintiffs witnesses present at the locus in quo visit included: i)
Muhammed Kaweesa and Wakib Bunya (surveyor) while Mr. Oging Joseph,
the sole witness of the defence was also present.
9. Mr. Wakib Bunya took oath, gave evidence, and was cross examined by
counsel Tumwebaze Immaculate and re-examined by counsel Robert Irurnba.
10. On the side of the defendants, Mr. Oging Joseph took the oath, gave evidence
and was cross examined by counsel Robert Irumba and then re-examined by
counsel Tumwebaze Immaculate.
11. Court observed that the contested Kibanja is vacant, and that the defendant is
in occupation of the adjacent plot ofland, different from the Kibanja, which is
developed with buildings where the defendant operates a factory for Beetle
paint.
Issues to be determined bv the court:
12. The following are the issues for determination by the court:
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i). Whether the plaintiff legally and/or rightfully acquired the suit land?;
ii). Whether the defendant is a trespasser on the suit land; and
iii). Remedies available to the parties
Issues No.1&2:
13. Issues No.I& 2 shall be handled jointly.
14. In the case of Owembabazi Enid v. Guarantee Trust Bank Limited, fligh Court
(Commercial Division). Civil Suit No. 63 of 2019, Justice Stephen Mubiru
defined a Kibanja as follows:
"A Kibanja is a form of land holding or tenancy that is subject to the
customs and traditions of the Baganda, characterised by user rights
and ownership of developments on land in perpetuity, subject to
payment of an annual rent (busuulu) and correct social behaviour,
distinct and separate from ownership of the land on which the
developments are made and in respect of which the user and
occupancy rights exist."
15. In the instant case, the plaintiff claims to have acquired a Kibanja in 2013, and
bears the burden to prove that it was acquired in accordance with the applicable
law at the time. The applicable law was the Land Act (Cap 227) which provides
in section 34(1 ). (2) & (3) as follows:
"34. Transactions with the tenancy by occupancy
(1) A tenant by occupancy may, in accordance with the provisions of
this section, assign, sublet or subdivide the tenancy with the consent
of the land owner.
(2) A tenancy by occupancy may be inherited.
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(3) Prior to undertaking any transaction to which subsection (])
refers, the tenant by occupancy shall submit an application in the
prescribedform to the owner of the landfor his or her consent to the
transaction. "
(4) .
(5) .
(6) .
(7) .
(8) .
(9) No transaction to which this section applies shall be valid and
effective to pass any interest in land if it is undertaken without a
consent as provided for in this section, and the recorder shall not
make any entry on the record of any such transaction in respect of
which there is no consent. "
16. For a sale, transfer or assignment of a Kibanja from one holder to another to be
valid under the law, the registered owner of the land must render his or her
consent. Therefore, according to the law, the sale of a Kibanja without the
consent of the registered owner of the land is null and void. This is the effect
of the holding by the Court of Appeal of Uganda in the case of Jennifer
Nsubuga v. Michael Mukundane & Another, Court ofAppeal Civil Appeal No.
208 0(2018 (Coram: Madrama, Mulyagon;a & Mugenyi, JJA), where Justice
Monica K. Mugenyi, JA held that:
"My construction ofsections 34(3) and 35(1) of the Land Act is that
they are couched in mandatory terms. In any case, sub-section (9)
unequivocally clearly states that no transaction to which section 34
applies shall be valid to pass any interest in land if it is undertaken
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without a consent as provided for. In a nutshell, therefore, a kibanja
holding on mailo land is demonstrated by proof of consent by the
landlord or mailo owner for the occupation of his/ her land, or proof
of succession to the kibanja holding in accordance with applicable
customary practices, which would in itself require proof of the
envisaged customary practices. Once the existence of such interest
has been established, any assignment thereofwould be subject to the
consent of the mailo owner. ln any event, s/he would be entitled to
the first option of assignment."
1 7. The plaintiff testified in court as PWl. He asserted that he is a lawful owner of
a Kibanja measuring 100ft x 50ft x 38ft x 95ft on Leasehold Register Volume
2078 Folio 16 Kyadondo Block 203 Plot 412 Land at Nabweru. That he
purchased the Kibanja from Hajji Hassan Bulwadda with the consent of the
registered owner (Hassan Walubi Bulwadda). He adduced Exh.Pl - a copy of
the agreement of sale between Hajji Hassan Bulwadda and Kato Hussein dated
16th September 2013. He also adduced Exh.P3 - certificate of title for LRV
2078 Folio 16 land at Nabweru in the name of Hassan Walubi Bulwadda. PW2
(Hassan Saidi Bulwadda) testified that his father, Hassan Walubi Bulwadda
was the registered owner of the land and he gave his consent to enable him sell
his Kibanja to the plaintiff. That his father did not sign on the sale agreement
because he was too old, and that he died at the age of 106 years.
18. PW3 (Muhama Kawese Lumbawo Serwanga), the local council chairman of
the area testified that the plaintiff purchased the Kibanja from Hajji Hassan
Bulwadda with the consent of the registered owner, Hassan Walubi Bulwadda.
He testified that:
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"The agreement was made at Bulwadda 's home. fie did not sign
because he was sick. He was understanding, he is the one who rang
me. "
19. Exh.P7 - a boundary opening report compiled by New Age Surveyors dated l"
December 2018 confirmed that the Kibanja that was purchased by the plaintiff
is located on Plot 412 Block 203 Kyadondo.
20. I am satisfied with the oral evidence of PW2 (Hassan Saidi Bulwadda); and
PW3 (Muhama Kawese Lumbawo Serwanga), both of whom witnessed the
purchase of the Kibanja, that the plaintiff purchased a Kibanja on the land with
the consent of the registered owner of the land, Hassan Walubi Bulwadda. The
oral evidence proves that the registered owner of the land was still alive at the
time of the Kibanja transaction between the plaintiff and Hajji Hassan
Bulwadda, was present during the purchase of the Kibanja, and gave his
consent to the purchase of the Kibanja by the plaintiff. On the basis of this
evidence, the presumption is that the plaintiff is the owner of the Kibanja.
21. However, the defendant asserts that he is the owner of the same Kibanja. Since
the plaintiff is the presumed owner of the Kibanja according to the evidence
adduced thus far, the defendant bears the burden to prove that it is him who is
the owner of the Kibanja, and not the plaintiff. The burden of proof has shifted
to him. See the Supreme Court case of JK Patel v. Spear Motors Limited, SCCA
No.4 0(1991.
22. The defendant claims to have acquired a Kibanja from a one Auke Mary
pursuant to a purchase agreement dated the 31st August 2012 (Exh.D 1 ). Exh.D 1
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states that the Kibanja that the defendant acquired measures 1 acre, with
developments such as an unfinished guest house, boys' quarter and pit latrine.
Exh.D 1 does not provide for particulars of registration of the land such as block
and plot numbers, on which the defendant's Kibanja is situated.
23. The first point to note is that the defendant's alleged Kibanja has different size
dimensions from those described by the plaintiff. While the defendant testified
that his Kibanja measures 1 acre, the plaintiff testified that his Kibanja
measuresl00ft x 50ft x 38ft x 95ft. The two size dimensions are different.
Secondly, the defendant's alleged Kibanja has developments whereas the
Kibanja claimed by the plaintiff is vacant as confirmed by the locus in quo visit.
Thirdly, and most importantly, the defendant did not adduce evidence that he
purchased the Kibanja with the consent of the registered proprietor of the land,
Hassan Walubi Bulwadda.
24. The law prohibits acquisition of a Kibanja on land without the consent of the
registered owner. The failure by the defendant to prove that he purchased a
Kibanja with the consent of the registered owner of the land, means that he did
not lawfully acquire the disputed Kibanja on the land.
25. Having regard to the evidence before court, it is my decision that the defendant
owns land, adjacent to the suit Kibanja, where he currently operates a factory
for beetle paint but he does not own the Kibanja that is claimed by the plaintiff.
This explains why the Kibanja described in Exh.Dl (sale agreement for a
Kibanja between the defendant and Auke Mary) is totally different from the
Kibanja claimed by the plaintiff in terms of size.
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26. Accordingly, it is my decision that the defendant has failed to prove that he
owns the disputed Kibanja. The defendant is a trespasser on the Kibanja.
Issue No.3: What remedies are available to the parties?
27. In the result, I enter judgment in favour of the plaintiff, and order as follows:
i). That the plaintiff, Kato Hussein is the lawful owner of a Kibanja
measuringl 00ft x 50ft x 38ft x 95ft located on land comprised in
Leasehold Register Volume 2078 Folio 16 Kyadondo Block 203 Plot
412 Land at Nabweru.
ii). That the defendant, Oging Joseph is a trespasser on the Kibanja;
iii). That a permanent injunction issues restraining the defendant, his
agents, servants, workmen and all those claiming under him and/or
deriving authority from him from trespassing, encroaching, interfering
and/or in any way dealing with the Kibanja;
iv). That the defendant shall pay general damages of Ushs 1,000,000
(Uganda shillings one million) to the plaintiff;
v). That the defendant shall pay interest of 15% per annum on general
damages from the date of judgment until payment in full.
vi). That the defendant shall pay costs of the suit to the plaintiff.
IT IS SO ORDERED.
JUDGE
1711 August 2023
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Attendance
17th August 2023 at 09:25am
Robert Irumba & Asiimwe Jotham Counsel for the plaintiff
The plaintiff is in court
The defendant is in court
Allena Kanyakire Court Clerk
Court:
Judgment delivered in open chambers.
~o
. ~~7
BERNARD NAMANYA
JUDGE
17 AUKUSt 2023
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