Court name
HC: Land Division (Uganda)
Judgment date
22 January 2021

Namboowa v Kavuma (Civil Suit-2017/134) [2021] UGHCLD 3 (22 January 2021);

Cite this case
[2021] UGHCLD 3

THE REPUBLIC OF UGANDA

 

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

 

CIVIL SUIT NO. 134 Of 2017

 

SARAH MUGALU NAMBOOWA :::::::::::::::::::::::::::::::::::::::: PLAINTIFF

 

VERSUS

 

DUBAI KAVUMA BUKENYA ::::::::::::::::::::::::::::::::::::::::::: DEFENDANT

 

 (BEFORE: LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA)

JUDGMENT

The Plaintiff filed this suit against the Defendant seeking the following orders:-

  1. A declaration that the Plaintiff is the registered proprietor of the suit land at Kalerwe comprised in Kibuga Block 5 Plot 510.
  2. A declaration that the Plaintiff has never consented to Defendant’s occupation of her land.
  3. A declaration that the Defendant is a trespasser on the suit land.
  4. Eviction of the Defendant, his servants, agents, assignees and anybody claiming under him from the suit land.
  5. General damages from trespass.
  6. Costs of the suit.
  7. Any other or alternative relief.

According to the plaint, the Plaintiff is the registered proprietor of land comprised in Kibuga Block 5 Plot 510, land at lower Nsooba 111, Kawempe Division measuring 0.30acres and part of this land is in her occupation and the other part is being occupied by the Defendant. It is also indicated in the plaint that on 31st May 1997, the Plaintiff sold a portion of her land as a Kibanja measuring 59ft on the side of Mwebe, 52ft on the said of the Plaintiff, 37ft on the part of abattoir and 39.7ft on part of Serubiri to Moses Lukwago and on 1st October 1997, Moses Lukwago sold his occupancy without consent of the Plaintiff to Rogers Mwanje Kavuma who later sold to the Defendant. The Plaintiff protested the said sale and later decided to file this suit.

The Defendant filed a Written Statement of Defence and indicated in the said defence that the Plaintiff sold the Kibanja to Moses Lukwago who later sold to Mwanje Rogers and Mwanje Rogers sold the Kibanja to the Defendant. The Defendant also filed a counterclaim against the Plaintiff as counter-defendant indicating that the counter-defendant refused to accept Busulu from the Defendant and that she also failed to repurchase the suit land when she was given chance. The counterclaimant prayed for Permanent Injunction, General Damages, a declaration that the counterclaimant is the lawful/rightful owner of the suit Kibanja, an order directing the counter-defendant to accept and receive Busulu and costs of the counterclaim.

On 26th June 2019, a Joint Scheduling Memorandum was filed and the following issues were framed for trial:-

  1. Whether the contract of sale of Kibanja between Rogers Mwanje and the Defendant was lawful? This issue was amended at trial.

 

  1. Whether the Defendant is a lawful occupant of the suit Kibanja or a trespasser?

 

  1. What remedies are available to the parties?

 

At the hearing of the suit, the Plaintiff was represented by Counsel Mbogo Charles while the Defendant/Counterclaimant was represented by Counsel Kajeke Kenneth. The Plaintiff/Counter-defendant led evidence of one witness that is PW1(Sarah Mugalu Namboowa) while the Defendant/Counterclaimant led evidence of four witnesses that is DW1(Bukenya Muhamood), DW2(Kavuma Esther), DW3 (Namatovu Madda) and DW4 (Habineza Henry Abbey).

 

 

 

                                                 

Resolution of Issues                  

Issue 1

On the 1st issue, Counsel Mbogo Charles for the Plaintiff submitted that the agreement of sale between the Defendant and Mwanje Rogers (PE2) dated 9th June 2009 was unlawful under the Land Act since Mwanje Rogers did not seek the consent of registered proprietor before selling his Kibanja to the Defendant (Bukenya Dubai). Counsel Mbogo for the Plaintiff equally submitted that the Defendant could not rely on the memorandum of understanding (PE4 a & b) between the Plaintiff and Moses Lukwago where the Plaintiff was supposed to refund Moses Lukwago and repossess the Kibanja which the Plaintiff had sold to Moses Lukwago because the Defendant was not privy to the memorandum of understanding between the parties. Counsel cited the cases of Prince vs Gaston (1833) 4B & Ad 433 and Twedde vs Atkinson (1861) 1B & 5393 to the effect that the common law doctrine of privity of contract stated that no one may be entitled to or bound by the terms of a contract to which he is not a party.

According to Counsel, since the Plaintiff did not give her consent in respect of the sale agreement between the Defendant and Mwanje Rogers (PE2) the said transaction was void abnitio and the Defendant did not even get an equitable interest in the suit land. It was Counsel’s submission that since the Plaintiff had consented to the sale between Lukwago Moses and Mwanje Rogers, this consent made Mwanje Rogers a licensee on the Plaintiff’s land who had nothing to sell the Defendant. Counsel argued that the contract between the Defendant and Mwanje Rogers was unlawful.

In reply, Counsel Kajeke for the Defendant submitted that the Defendant relied on the agreement of purchase between Moses Lukwago and Rogers Mwanje (Exhibit PE5 a & b) plus the memorandum of understanding between the Plaintiff and Moses Lukwago (PE4 a & b). That in the memorandum of understanding between the Plaintiff and Moses Lukwago, the Plaintiff undertook to repurchase the suit Kibanja within a period of 45 (forty-five) days failure of which the Kibanja would revert to Moses Lukwago without any objection. Counsel equally cited the agreement between Moses Lukwago and the Plaintiff (PE3 a & b) dated 31st May 1997 where the Plaintiff sold part of the suit land to Moses Lukwago whereby Moses Lukwago was free to carry out any activities on the said Kibanja as he wished. Counsel argued that the Plaintiff did not contest the sale of the suit Kibanja by Lukwago Moses to Mwanje Rogers on 1st October 1997 and even when Mwanje Rogers sold to the Defendant in 2009, the Plaintiff did not challenge this transaction until 2017 when she filed the case in court. Counsel relied on the case of Freeman & Lockyer vs Buckhurst Park Property (Mangal) Ltd (1964) 2 QB 480 where it was held that for the proposition that a person who allowed another to believe that a state of affairs exists with the result that that there is reliance upon such belief cannot afterwards be allowed to say that the state of affairs was different if to do so would involve another person suffering some kind of detriment. Counsel argued that much as the Defendant was not privy to the contract between Lukwago Moses and the Plaintiff, the Plaintiff should not be allowed to allege that she never consented to the sale of the suit Kibanja to the defendant since she never disturbed the Defendant until 2017.

According to the Defendant’s Counsel, the Plaintiff is estopped from challenging the sale of the suit Kibanja to the Defendant by Rogers Mwanje since she had earlier on consented to the sale between Lukwago Moses and Mwanje Rogers in October 1997. It was Counsel’s submission that the Plaintiff refused to accept the Busulu.

According to the evidence on record the Plaintiff is the registered owner of the suit land comprised in Kibuga Block 5 Plot 510 measuring 0.30 hectares (Exhibit PE1). The owner is stated as Sarah Nambowa who was registered on 27th November 1991 under Instrument No. KLA 150672. On 31st May 1997, the Plaintiff sold part of her land to Moses Lukwago in form of a Kibanja with measurements of 59ft by 52ft by 37ft and by 39.6ft (PE3 a & b). On 27th July 1997, there was a memorandum of understanding entered between the Plaintiff and Moses Lukwago whereby the Plaintiff agreed to give Ug. Shs. 1,281,000/= (One million two hundred eighty-one thousand shillings only) to Lukwago Moses for the Kibanja which the Plaintiff had sold to Lukwago on 14th September 1997, (Exhibit PE4 a & b). In the same memorandum of understanding (Exhibit PE4 b), the Plaintiff stated that if she failed to pay Lukwago Moses the stated sum within 45 (forty-five) days the Kibanja would be returned to Lukwago Moses without any objection. There is no evidence on record to prove that the Plaintiff paid Moses Lukwago a sum of Ug. Shs. 1,281,000/= (One million two hundred eighty-one thousand shillings only). On 1st October 1997, Moses Lukwago sold his interest in the suit land to Rogers Mwanje (Exhibit PE5 a & b).

According to the evidence of PW1 (Plaintiff), she consented to this transaction between Lukwago Moses and Mwanje Rogers. This evidence is even drawn from the plaint. On 9th June 2009, Mwanje Rogers sold the suit Kibanja to Bukenya Muhamood (Defendant) as per Exhibit PE2. According to the evidence of PW1 (Plaintiff), she never consented to the sale of the suit Kibanja to the defendant as registered proprietor. The witnesses for the Defendant DW1, DW2, DW3 and DW4 testified that the Defendant has a Kibanja on the Plaintiff’s land and that the Plaintiff refused payment of Busulu from the Defendant. The Plaintiff testified that she could not accept Busulu from the Defendant because she did not consent to the sale between Rogers Mwanje and the Defendant. However, PW1(Plaintiff) testified that she consented to the sale between Lukwago Moses and Mwanje Rogers in 1997. The Plaintiff told court that the transaction between Mwanje Rogers and the Defendant was illegal since she did not authorize the Kibanja owner (Mwanje Rogers) to sell the suit Kibanja to the Defendant.

Section 35 (2) of the Land Act provides as follows:-

“The owner of land who wishes to sell the reversionary interest in the land shall, subject to this section, give the first option of buying that interest to the tenant by occupancy.”

In the instant case, the Plaintiff sold part of her land to Lukwago Moses in 1997 in form of a Kibanja. This indicates that the Plaintiff transferred an equitable interest to Lukwago Moses since Lukwago Moses bought a Kibanja on registered land. The act of the Plaintiff selling the Kibanja to Lukwago Moses estops her from benefiting from Section 34 (1) of the Land Act. Section 34 (1) of the Land Act applies in respect of land where the registered owner had not parted with part of his or her land. That is when the transaction between the tenant by occupancy and the person who has acquired an interest in the registered land becomes unlawful. In this case, the Plaintiff had already sold the Kibanja to Lukwago Moses in May 1997 who later sold the same to Mwanje Rogers in October 1997. Therefore, Mwanje Rogers had authority to sell the suit Kibanja to the Defendant in 2009 without the consent of the registered owner who had already transferred the equitable interest to Lukwago Moses in 1997. Therefore, the transaction between Mwanje Moses and the Defendant was lawful.

Issue 2

Whether the Defendant is a lawful occupant on the suit land or a trespasser?

On this issue, Counsel for the Plaintiff submitted that since Mwanje Rogers sold the suit Kibanja to the Defendant in 2009 without consent of the registered owner, the Defendant is a trespasser on the suit land. Counsel further submitted that the Defendant was not a lawful occupant since he was not paying Busuulu to the Plaintiff as the registered owner.

In reply, Counsel for the Defendant relied on Section 29 (1) (b) of the Land Act which defines a lawful occupant to mean a person who entered on the land with the consent of the registered owner and includes a purchaser. Counsel submitted that the Defendant purchased the suit Kibanja from Mwanje Rogers who acquired the same from Moses Lukwago. Counsel made reference to the case of Kamadi Lugobvu vs Saida Nandawula & 04 others Civil Appeal No. 135 of 2014 arising from Civil Appeal No. 0108 of 2010. Counsel submitted that the Defendant is a lawful occupant in the suit land.

Section 29 (1) (b) of the Land Act provides as follows:-

“Lawful occupant means a person who entered the land with consent of the registered owner, and includes a purchaser.”

Since I have held in Issue 1 that the transaction between Mwanje Rogers and the Defendant was lawful, it, therefore, follows that the Defendant is a purchaser in accordance with the provisions of Section 29 (1) (b) of the Land Act which makes the Defendant a purchaser and not a trespasser. As a purchaser, the Defendant is a lawful occupant in accordance with the provisions of Section 29 (1) (b) of the Land Act.

Issue 3

What remedies are available to the Parties?

I have already held that the transaction between Mwanje Rogers and the Defendant in 2009 was lawful and that the Defendant/Counterclaimant is a lawful occupant on the suit land as a Kibanja holder. The following orders are hereby made:-

  1. The Plaintiff’s suit is dismissed.

 

  1. The defendant/Counterclaimant is a lawful occupant in respect of Kibuga Block 5, Plot 510.

 

  1. The Plaintiff shall pay the costs of the suit.

 

Dated at Kampala this 22nd day of January 2021

 

_______________________

IMMACULATE BUSINGYE BYARUHANGA

JUDGE