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Land Division Sitting at Nakawa Consolidated Civil Suits No.1036 of 2018 & Civil Suit No.165 of 2019

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Land Division Sitting at Nakawa Consolidated Civil Suits No.1036 of 2018 & Civil Suit No.165 of 2019 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA LAND DIVISION SITTING AT NAKAWA CONSOLIDATED CIVIL SUITS NO.1036 OF 2018 & CIVIL SUIT NO.165 OF 2019. KICONCO MEDARD................................................PLAINTIFF VERSUS HON. PERSIS NAMUGANZA &148 ORTHERS....DEFENDANTS JUDGMENT BEFORE HON JUSTICE TADEO ASIIMWE. The brief background of the suit is that the plaintiff is the registered proprietor of the land comprised in Kyadondo Block 206 plot 671 Mpererwe having purchased the same from Paul Katabazi Bitarabeho (the administrator of the estate of the Late Paul Bitarabeho) in 2013 and completed payment in 2016. The certificate of title was transferred in his names on the 29/4/2016. At the time of purchase there were 17 persons introduced to him as trespassers with who commenced negotiations to settle through compensation. The plaintiff alleges that while compensating some of the original 17 occupants, the 3rd to 147th defendants appeared and presented 1 agreements claiming to be compensated as well for their Bibanja interests they purchased from Chrisper Bitarabeho hence this suit. In the original suit, the Plaintiff originally sued the 3rd to 19th defendants for trespass, the 1st and 2nd for injunction, damages and the 20th defendant for failure to demolish illegal structures to his land. Before the commencement of hearing, an application no.341 of 2019 was filled by the applicants seeking to join the original 20 defendants as co- defendants. The said application was not opposed by the respondents and was allowed hence adding 128 defendants to the original 20 defendants making them 148 defendants. It was however, bought to the attention of court that there were 3 suits (Civil suit no. 1036 of 2018, civil suit no 165 of 2019 and civil suit no.10 of 2012 for and against the plaintiff calls for consolidation of the cases since they all relate to the same dispute. All the parties agreed on the need for consolidation to resolve the issues at once. An order for consolidation was granted by court to consolidate the 3 cases. However before consolidation of the suits was effected, civil suit number 10 of 2012 was withdrawn hence consolidation off C S NO. 1036 OF 2018 AND CS NO 165 OF 2019.Subsequently following the 2 consolidation, order the number of defendants moved to upwards from 20 to 149 with Attorney General being added as the 149th defendant. As can be gathered from the pleadings in civil suit 165 of 2019, the plaintiff sued attorney general for compensation over the same land, permanent injunction, general damages, exemplary damages costs and interest. All The defendants except the 2nd defendant filled there written statements of defence denying all these claims by the plaintiff. Subsequently the plaintiff also withdrew the case against the 3rd, 4th, 5th. 5th, 6th. 8th, 9th, 10th, 12th .13th, 15th, 16th, 17th, 18th defendant and the suit proceeded against the remaining defendants. At scheduling the following facts were agreed upon; a) The suit land is comprised in Kyadondo Block 206 plot 671 Mpererwe, Kampala District. b) The plaintiff is the registered proprietor of the suit land comprised in Kyadondo Block 206 plot 671 Mpererwe, Kampala District. c) The 7th, 11th, 14th, 19th to 147th defendants hold Bibanja sales agreement for Lusanja, Wakiso District. 3 d) The 148th defendant is charged with the physical planning of Kampala city under section 7 of the KCCA Act, 2011 whose duties are to regulate all matters to do with physical planning within Kampala including but not restricted to approval of plans and or drawings for all permanent and temporary structures, renovations and alterations. ISSUES The following issues were agreed upon by the parties for determination by this court; 1) Whether the 1st defendant incited the 3rd to 147th defendants to unlawfully settle and occupy the suit land. 2) Whether the 149th defendant issued directives for the 3rd to 147th defendant to stay and remain on the suit land 3) Whether the 148th defendant abdicated its duties as provided by under the law 4) Whether the 7th, 11th, 14th, 19th to 147th defendants are trespassers on the suit land 5) What remedies are available to the parties. 4 At the hearing, the plaintiff was represented counsel Babu Rashid, the its defendant by counsel Kumbuga Richard, the 2nd- 147th defendants by Kiwanuka Abdallah, Luyimbazi Elias Nalukola and counsel Lukwago Elias while counsel Byaruhanga Dennis represented KCCA. Counsel for the plaintiff raised a preliminary issue in which he sought certain remedies to be granted against parties who never filled a defence. He submitted that 2nd to the 18th defendants did not file a defence after they had been served by the plaintiff. He submitted that under 0rder6 rule 10 of the civil procedure the consequences of not filling a defence is that the court shall proceed to hear the suit as if the defendants filled the defence and that those particular defendants are presumed not to have given a defence to counter the plaintiffs claim. He further prayed that court enters judgement against them a fact that would be reflected in the remedies granted by court under issue five. Whereas I agree with counsel for the plaintiff that once a party does not file a defence court proceeds as if the party had filled a defence as per order6 rule 10 above, this does not automatically entitle the parties the remedies and orders 5 sought in the entire case against such defendants. The order simply means that court will proceed to resolve the issues at hand on the basis of the plaintiff’s case and determine whether a case is made out by a party who has filled the pleadings. The fact and law still remain that he who alleges must prove and therefore the rule cited by the plaintiffs’ counsel is subject to this rule of evidence. Therefore, the preliminary issue raised by the plaintiff’s counsel will be resolved by court while determining the merits of the case against the defendants who never filled a defence. Therefore will not make a determination on this matter raised but proceed to resolve the issues as framed by the parties. Issue 1 Whether the 1st defendant incited the 3rd to 147th defendants to unlawfully settle and occupy the suit land. As far as this issue is concerned, counsel for the plaintiff submitted that the 1st defendant incited the 3rd to 147th defendants to settle on his land unlawfully and to occupy the same. Counsel submitted that the 1st defendant held a meeting on the 5th September 2016 on the suit land and listened to only one side. That the plaintiff went an extra mile to notify the 1st defendant about the unfair act she had done through his lawyers as per D.exh.No.1. Counsel further submitted that the 6 1st defendant failed to adduce evidence to disprove the plaintiff’s claim since she failed to even comply with court’s directive to produce documents about this very matter during cross examination. In reply, Counsel Kumbuga Richard for the 1st defendant relied on the 1st defendant’s written statement of defence and submitted that the 1st defendant as the state minister for lands was petitioned by some defendants about the harassment from the plaintiff in relation to the suit land and she accordingly met them to investigate the complaint. That she equally received a complaint D.exh.No.1 from the plaintiff’s lawyers requesting her in her official capacity to hear their side. But before she could accord the plaintiffs a hearing, she learnt that the matter was a subject of court proceedings and opted out. Counsel submitted that the acts of the 1st defendant were not outside her mandate as the State Minister for lands. Under Section.101 of the evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In this case, the burden of proof lies on the plaintiff to prove the incitement by the 1st defendant. To incite according to the Black’s Law Dictionary, 8th Edition, 7 page 830 means to provoke or stir up someone to commit a crime. According to the evidence on record the first defendant was invited by some of the defendants. The documentary evidence exhibited in court shows that 1st was invited by both parties as a minister of state for land matters to intervene in the disputes on the suit land. She managed to meet the defendants as part of her inquiry and advised them to stay on the land pending her investigations in the matter. The issue of not meeting the plaintiff was clarified by the 1st defendant in her cross- examination and her written statement of defence to be existence of the court case which led her to terminate her inquiry prematurely but her intention was to meet both parties. From the above evidence, it is clear the 1st defendant did not conclude her investigations and as such could not have taken any decision that would amount to incitement as alleged. There is no evidence to prove that whatever she did was in her private capacity. On the contrary, there is evidence that she was invited in her official capacity as a minister of state for lands and thus whatever wrong action and/or omissions are actionable against the employer. There was no sufficient evidence adduced by the plaintiff to the requisite standard that the1st defendant indeed incited the 8 3rd to 147th defendant to settle and occupy the suit land since the said persons were found on the land when the minister visited the area.
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