Let us Prioritise Safety

According to the Road Safety Performance Review Uganda 2018 compiled by United Nations Economic Commission for Africa and United Nations Economic Commission for Europe, it is reported that every year nearly 1.25 million people die and up to 50 million people are injured on the World’s roads. In Uganda alone it is reported that 10 people die per day being the highest number in the whole of East Africa.

Now these kinds of accidents do not only cost lives but also have a cost on the economy which is estimated to be approximately 4.4 trillion Uganda shillings spent annually translating into 5 % of Uganda’s GDP. Uganda alone has a road network of about 129,469 kilometers, the railway line is 1,250 kilometers, 250 bridges and we have 10 ferries.

Most of these accidents are caused by a number of factors that can be prevented and in most cases it referred to as human error. From poor road network, to drink driving, over loading, over speeding, driving on shoulders, reckless driving, over taking in sharp corners, not respecting road signs, not wearing helmets, not wearing seat belts are all human errors that have led to death of many lives.

One of the forgotten but very important cause of some of these accidents is the licensing. Uganda is a country that allows importation of used cars from car manufacturing countries. In some of these countries Uganda has arrangements for those vehicles to be inspected before being allowed to be shipped. However, this is not enough to curb the use of cars that are in poor mechanical conditions.

Not only cars, but all powered machines that are used for transport in the country should be properly inspected before being allowed to operate. But I think we have reached somewhere though the lack of political will frustrates everything.

The recent tragedy that happened when over 100 revelers travelling on a boat to Mutima Island which capsized killing over 32, 40 rescued and many more unaccounted for is very unfortunate but brings us back to the main topic of Safety. Before you jump onto that boda boda do you mind to wear a helmet? Before you board a taxi do you mind to critically know who the driver is, are the tyres worn out or not? Before you use water transport do you ever mind wearing a life jacket?

When the driver, rider, captain, sailor chauffeurs you recklessly do you ever mind to tell them to reduce on the speed? We have lost quite a number of lives because we seem not to care about our own safety. Some of the means we use for transport are not licensed but we carelessly ignore even when it comes to our attention. This is simply because we are always in a rush to reach our destinations but what is more important for us is to reach safely. Let us drop the old habits, wear a helmet before you ride, life jacket before you sail, seat belt before the car starts moving and let be responsible enough to respect each others’ lives.

In my opinion but not being judgmental, if all the people sailing on that boat to Mutima were wearing life jackets we would not have lost those many lives. It is so unfortunate that we cannot turn the clock back in time but I think every death that occurs due to human error should teach us a lesson to be cautious about our lives.

Nkugwa John Michael
jmnkugwa@gmail.com
Lawyer at Baruga Associated Advocates

Payment of tithe is our responsibility

PAYMENT OF TITHE IS OUR RESPONSIBILITY

I have taken off time first to read people's opinions a few days back about the Archbishop Cyprian Lwanga's proposal for government to help collect tithe. Secondly I have also chatted with several religious leaders and have come up with this writing in reply. Yes, it is true that payment of tithe is not mandatory in the secular world but backed with scripture it makes it mandatory for anyone who is religious to pay tithe. The role of the church is more of social to rehabilitate the sick, elderly name it. Provide services like education, treatment to the sick name it. It is also true that Dr. Cyprian Kizito Lwanga, proposed that the central government if possible should start deducting 10 percent tithe from monthly salaries of Catholic believers because they are not tithing as they should  have done therefore, slowing down the church works.

Many are getting this out of context to think that actually churches are more concerned about income flow to their baskets and pockets rather than the things that matter in this country. Should the Catholic Church stop running Rehabilitation homes like the Bakateyamba Home found in Nalukolongo? Should the church stop providing education through the catholic founded schools? Should the Church stop sending funds to catholic founded hospitals? Should the church stop doing corporate work through Centenary Bank, turn political and get on the streets? The tithe that comes from the catholic community has done a lot of activities that mere getting on the street can ever do. In fact if the well established religions/religious men were managing this economy it would be far better. Take a look at Vatican, in fact the Archbishop is just reminding us of how better this economy would have been if we were all paying tithe in our respective churches.

Collection of tithe through the Central government has been tried though in those countries it is actually church tax. In Denmark there is the Evangelical Lutheran Church which receives funding through a specific church tax. In Sweden and Finland 1% to 2% is deducted by government from Citizen’s monthly earnings and it is sent to the church. In Germany there is an Income tax that is deducted from Christians and is given to the church to fund its activities. In Italy where the Catholic faith has deep routes 0.8% tax is deducted and the tax payers express their preference to the church where they want that tax to be spent and mainly this money goes to the needy.

Furthermore in Spain it is law for tax payers to allocate a percentage of their income tax to the Catholic Church.

Now, in the Ugandan context where there is no such Church tax law and yet all Catholics know that the Church does not get funding from any other source save for the faithful. In my opinion it is accurate for the Archbishop to suggest that government collects tithe from our monthly earnings because Church is in a way constrained.

I am not a preacher but Leviticus 27:30-32, Numbers 18:21-26, Deuteronomy 14:22-23 and Chapter 26 verse 12, Nehemiah 10:37 and Chapter 13 verse 5, Amos 4:4, Malachi 3:8-10, Hebrews 7:5. All is scripture talking about tithe. Be responsible and pay tithe to your God.

Nkugwa John Michael
jmnkugwa@gmail.com
Lawyer/Associate at Baruga Associated Advocates

Submissions on trespass and effect of not cross-examining witnesses

FINAL SUBMISSIONS OF THE PLAINTIFF

The facts leading to the above civil suit briefly state that;

That on the 20th day of August 2007, the plaintiff bought a piece of land comprised in Kyaggwe, Block 107 Plot 1693 land at Nabuti-Mukono at UGX. 28,000,000=. That subsequently on the 5th day of March 2008, the plaintiff’s names were registered on the Title under instrument No. MKO91883.
Without any color of right, the defendant who was merely a tenant in one of the rental houses on this land claimed that he bought part of the same land measuring approximately 40 by 50 feet where the house he was renting is.
That without any authority, permission or consent whatsoever from the plaintiff regardless of the warnings and pleas by the plaintiff, the defendant has continued to trespass on this land. This has deprived the plaintiff of the quiet possession and use of the suit property trespassed upon by the defendant causing him severe loss and damage.

Hearing/Pleadings

The Plaintiff filed a suit of trespass against the defendant on the 4th day of June, 2012 and sought the following orders from Court;
a permanent Injunction restraining the defendant by himself, his servants, agents and or any person acting under his authority from any further trespass on the plaintiff’s  land comprised in Kyaggwe, Block 107 Plot 1693, Land at Nabuti- Mukono, Measuring 0.063 Hectares .
Vacant possession of the above mentioned land,
General damages for Trespass,
Interest on (c) above and
Costs.
The plaintiff presented 5 witnesses to support his suit, whereas in his defense, the defendant denied having trespassed on the land in contention and he presented 2 witnesses to support his defense.

During scheduling two issues were raised by this Honorable Court;

1. Whether the defendant is a trespasser?

2. Whether there are any remedies?

In resolving the first issue as to whether the defendant is a trespasser;

First and foremost we have to understand what amounts to trespass.
In the suit of JUSTINE E.M.N LUTAAYA VS STIRLING CIVIL ENGINEERING CO SCCA NO.11/2002, it was stated that Trespass is a continuing tort when unlawful entry on the land is followed by its continuous occupation or exploitation.
Similarly, the Black’s Law Dictionary 8th Edition at pg.4685 defines trespass as an unlawful act committed against the person or property of another.
Important to note is that for the plaintiff to succeed in a suit of trespass, there are two well established elements which have to be proved at a balance of probabilities and these include;
having title to sue and being in possession of the land trespassed onto the conduct of the defendant must be voluntary, intentional, reckless or careless.

Newington V Windeyer (1985) 3 NSWLR 555, establishes element a. above being; having title to sue and being in possession of the land trespassed onto, in this suit, the plaintiff had common boundaries with the defendant with an area fronting onto the street. Whilst the plaintiff did not have title over the area, they had gates giving access to it. Over a period of more than 50 years, they had cultivated the area as a garden and executed other acts of possession, and their visitors and trades people used it. They brought an action for trespass against the defendant who had a common boundary with the area and claimed the right of possession, but who had no history of the exercise of this right.

It was held that there was a trespass as the plaintiff had adverse possession of the land. Similarly in the case of Vaughan V Shire of Benalla (1891) 17 VLR 129, it was held that mere use of land without exclusive possession to land does not provide the required title to sue in trespass.

S. 59 of the Registration of Titles Act Cap. 230 is to the effect that a certificate of title is conclusive evidence that the person whose names appear there in is possessed of power to dispose of the same and the title is evidence of ownership/possession.

In the suit before this Honourable Court, the plaintiff clearly stated that on the 20th day of August 2007, the he bought the suit land comprised in Kyaggwe, Block 107 Plot 1693 land at Nabuti-Mukono at UGX. 28,000,000=. This Honourable Court admitted a copy of the sale agreement as Plaintiff Exhibit 1. That subsequently on the 5th day of March 2008, his names were registered on the Title under instrument No. MKO91883. Similarly this Honourable Court admitted a copy of the Land Title as Plaintiff Exhibit 2.

The defendant failed to present any adverse form of possession of the said land or even having the required title to sue over the same. His name has never at any one moment appeared in the title to this land. The plaintiff presented 5 witnesses who attested to the fact that they know the plaintiff as the lawful owner of the suit property.

On the contrary the defense presented only 2 witnesses who did not do much to build their defense. They simply alleged without any tangible evidence that the defendant holds an interest on the suit property.

The evidence produced by the defendant to support his claim lives a lot to be desired. The defendant only presented his evidence in chief by way of a witness statement and the plaintiff was never given an opportunity to cross examine him. This is a grave anomaly that Courts should take in caution and such evidence is not conclusive to find the defendant not a trespasser on the suit property.

In our view the defendant at a balance of probabilities has failed to prove to this honourable court that he has title to sue and in possession of the suit land not to find him culpable for trespass.

The second element for the suit of trespass to succeed is that conduct of the defendant must be voluntary, intentional, reckless or careless. In the suit of Plenty V Dillon (1991) 171 CLR 635, where the defendant was a police officer charged with the duty to serve summons onto the plaintiff. He entered onto the Plaintiff's premises with the intent to serve the summons from the Court. The occupier refused consent. It was held that the police officer was not authorized by common law to enter upon private property without the proprietor’s consent and hence the suit of trespass succeeded against the defendant.

In the suit before this Honourable Court without any color of right the defendant claims interest in the suit land, where he has illegally stayed stopping the plaintiff from enjoying quiet possession. This is all being done without the consent of the plaintiff and we pray that Court finds the defendant liable for trespass.

Effects of not according litigants a chance to cross-examine witnesses;

Article 28 clause (1) of the 1995 Constitution of the Republic of Uganda as amended provides for a Right to a fair hearing.  Furthermore article 44 clause (2) paragraph (c) provides for the rights that are non-derogable and the right to a fair hearing is one of the them. It is our considered opinion that it is not fair to take the defendant’s evidence in chief conclusive since the plaintiff was not accorded a chance to cross examine him on the same.

Ugandan jurisprudence in form of decided case law provides for such an anomaly of not according litigants a chance to cross-examine witnesses. In the election petition Appeal No. 07 of 2011, Hon. Kipoi Tonny Nsubuga V Ronny Waluku Wataka and 802 others. (reported on ulii)
The Constitutional Court seating as the Court of Appeal found it unfair not to cross-examine witnesses where the appellant was not accorded chance to cross-examine one of the witnesses in the Court of first instance thereby allowing the appeal. To be particular on pages 34 and 35 of this decision court held that…The right to cross examine a witness by the opposite party, being one of the essential ingredients of a fair hearing, it was, in our view, fatally erroneous on the part of the learned trial judge to have let Batamye, though a witness called at the initiative of the court, go without being cross examined. (emphasis added)

Furthermore on pages 36 and 37 the Justices quoted the decision of De Souza Vs Tanga Town Council, Civil Appeal No. 89 of 1960 reported in 1961 EA 377 at page 388 where their Lordships the Justices of the East African Court of Appeal held;
“If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. That decision must be declared to be no decision.”
The Justices stated that…Further, we reject the argument by counsel for the respondents that it was not the duty of the court to throw witnesses to parties for cross-examination.  Given the fact that the right to cross-examine a witness by an interested party is entrenched in the Constitution to the level we have indicated above, we consider it the duty of every judicial officer presiding over a judicial hearing to take all necessary steps to ensure the strictest adherence to all the principles of natural justice that may come into play in the process of such a hearing.

Basing on the authorities given above, we therefore pray that Court does not consider any of the testimonies given by the defendant in chief because he was never cross-examined on the same.

Issue two: Whether there are any remedies?

General damages for trespass;

Order VII rule 7, of the Civil Procedure Rules SI 71-1, states that general damages may be awarded by court where court finds it appropriate to do so even where a party has not specifically stated them as a relief sought. 
Ugandan case law has also gone ahead to provide for general damages that may be awarded to litigants as was seen in the suit of Crown Beverages Ltd. vs. Ssendi Edward, SCCA No. 2005; where Ssendi consumed a soda which had fallen products of a snail that affected his reproductive system. In the locus clasicus case it was stated that the amount to be awarded as general damages is a matter of discretion of the trial court which must be exercised judicially.

Similarly the Black's Law Dictionary (8th edition. 2004) at Page 1174 defines general damages as damages that the law presumes follow from the type of wrong complained of also known as compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved

In the suit of Kampala District Land Board & George Mitala V Venansio Babweyana, Civil Appeal No. 2 OF 2007 it was decided that “…it is well settled law on award of damages by a trial court. It is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering.”

It should not go without cognizance of this Honourable Court that the defendant without reasonable cause denied the plaintiff his right of enjoying quiet possession of his land due to his continued trespass for which Court should find him liable to pay general damages.

Interest;

Section 26 of the Civil procedure Act cap 71 provides for the circumstances where Court may award interest and Courts do indeed award the same for as long it is not excessive in nature.
In the Ugandan jurisprudence we have an authority that was recently decided, in Rev. Dr. Grace Patrick Karamura Vs. Matsiko Semu David & Anor HCCS No. 566 of 2014; Commercial Court decision by Justice of the High Court Hon. Mr. B. Kainamura where the plaintiff sued the defendants for a principal sum of 370,763,200 and interest for the period the defendants were holding onto his money. In his judgment the Honourable Justice had this to say in paragraph 15 of his decision and I will quote him verbatim. “The purpose for an award of interest is restituo integrum which means that the plaintiff may be restored as nearly as possible to a position he would have been in had the injury not occurred.”
Justice B. Kainamura went ahead to refer to the authority of Riches V Westminster Bank Ltd [1947] 1 ALLER 469 HL at page 472; in this authority Lord Wright explained the essence of an interest award as:
“…payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation…”
Similarly, in the instant suit the defendant prays for interest to be awarded by this Honourable Court at its rate.

Costs;

Section 27 of the civil procedure Act cap 71 provides that the Court has discretion to determine costs and against whom.

In the suit of FERDINAND MUGISHA VS STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise clearly noted that the plaintiff had incurred a lot in filing a suit for removal of caveat and also pursuing the same. She went ahead and awarded costs of the suit to the plaintiff.

Similarly the plaintiff has incurred a lot since he instituted this suit of trespass against the defendant on the 4th day of June, 2012. He therefore prays that Court awards him Costs incurred as against the defendant.

WHEREFORE, the plaintiff prays that Judgment be entered against the defendant for:
A permanent Injunction restraining the defendant, his servants, agents and/or any other person acting for him from further trespass on the property.
Vacant Possession.
General Damages for Trespass
Costs of the suit
Interest at court rate from the date of filing of this suit up to the time of payment in full.

Fraud

FINAL SUBMISSIONS OF THE PLAINTIFF

The facts leading to the above civil suit briefly state that;
On the 26th day of June 2016, the plaintiff purchased a kibanja measuring 50 x 50 feet from a one X. On the 04th day of June 2017, the plaintiff on the strength of the defendant’s word that Mr. X (the defendant’s father) was unwell and unavailable but needed money and was selling the adjacent plot, entered into a second agreement for a 50 by 100 feet plot.
In the agreement of the 04th day of June 2017, the defendant took the agreement allegedly to Mr. X to sign it and then returned it and he was paid UGX. 15.000.000= which he acknowledged receipt of on the same agreement.
On the 06th day of October 2017 the plaintiff returned to buy another portion from the defendant’s father who assured him that he had never instructed his son the defendant to sell the kibanja and the defendant has never remitted any money to him.
The defendant was present on the 06th day of October 2017 and he confessed to have sold the plot to the plaintiff at UGX. 15.000.000= (Fifteen million shillings) and also confessed that he did not have the father’s consent nor did he remit the UGX. 15.000.000= to his father Mr. X.

Hearing/Pleadings

The plaintiff filed a suit against the defendant for general damages for fraud, recovery of UGX. 15.000.000= (Fifteen million shillings only), interest on the UGX. 15.000.000= at the rate of 10% per month, Costs and any other relief Court deems fit. However, the defendant did not file his written statement of defense and the suit was heard ex parte.
At trial the plaintiff produced 2 witnesses to support his suit whose evidence in chief was admitted by way of witness statements.

The legal issues involved include
Whether or not the defendant’s act of selling the suit kibanja to the plaintiff was fraudulent in nature.
Whether the plaintiff is entitled to remedies sought.

Resolution of issues

Issue 1: Whether or not the defendant’s act of selling the suit kibanja to the plaintiff was fraudulent.
In Fredrick Zaabwe V Orient Bank & 5 Ors SCCA No. 04 of 2006, fraud was defined to include anything calculated to deceive whether by a single act or combination of acts or suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture.

Similarly, the Black's Law Dictionary (8th edition. 2004) at Page 1950 defines fraud as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.

In J. W. Kazoora V Rukuba Civil Appeal No. 13 of 1992, Oder, JSC held that allegations of fraud must be specifically pleaded and proved. The degree of proof of fraud required is one of strict proof, but not amounting to one beyond reasonable doubt.

It is with no doubt that plaintiff has strictly proved fraud as per the degree required by this Honourable Court. First the plaintiff filed exhibit PE1 which is an agreement indicating that the defendant’s father had sold to him a plot measuring 50 by 50 feet. Similarly PE2 an agreement for the sale of a kibanja measuring 50 by 100 feet on which the defendant forged his father’s signature to misrepresent the plaintiff was admitted.

To further prove fraud, the plaintiff produced 2 witnesses PW1 and PW2 whose witness statements admitted by this Honourable Court as their examination in chief clearly show that the defendant fraudulently sold his father’s land to the plaintiff. In paragraphs 4 – 7 of her witness statement PW1 states that the defendant received money amounting to UGX. 15.000.000= which he claimed was receiving on behalf of his sick father for the sale of the said kibanja. However the father a one X later on denied having sold that kibanja or even worse did not receive any of the said money. He intimated that his signature had been forged by the defendant.

Furthermore PW2 in his witness statement to be particular reference should be made to paragraphs 4 – 7 where he corroborates the evidence of PW1 to prove that indeed the defendant received UGX. 15.000.000=. It is also with no doubt that on 06th day of October 2017 in the presence of a one X (father to the defendant), PW1, PW2 and the plaintiff, the defendant confessed to having fraudulently sold his father’s land receiving monies amounting to UGX. 15.000.000= from the plaintiff.

To me the defendant’s act of misrepresenting himself as having authorization from his father a one X to sale the kibanja measuring 50 by 100 feet and also receive money in the tunes of UGX. 15.000.000= (Fifteen million shillings) amounts to fraud as above submitted. In the premises it’s the submission of the plaintiff that this Honourable Court allows issue no. 1 against the defendant.

In resolving issue 2, whether the plaintiff is entitled to the remedies sought.

General damages for fraud;
Order VII rule 7, of the Civil Procedure Rules SI 71-1, states that general damages may be awarded by court where court finds it appropriate to do so even where a party has not specifically stated them as a relief sought. 
Ugandan case law has also gone ahead to provide for general damages that may be awarded to litigants as was seen in the suit of Crown Beverages Ltd. vs. Ssendi Edward, SCCA No. 2005; where Ssendi consumed a Pepsi soda which had fallen products of a snail that affected his reproductive system. In the locus clasicus case it was stated that the amount to be awarded as general damages is a matter of discretion of the trial court which must be exercised judicially.
Similarly the Black's Law Dictionary (8th edition. 2004) at Page 1174 defines general damages as damages that the law presumes follow from the type of wrong complained of also known as compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved

It should not go without cognizance of this Honourable Court that the defendant without reasonable cause duped, misrepresented and worse still defrauded the plaintiff of UGX. 15.000.000= (Fifteen million shillings) causing him great financial loss and trauma for which he claims general damages.

Special damages;
It should be noted that Ugandan Courts have gone ahead to award special damages to litigants and these have to be specifically pleaded and proved. The Plaintiff in his Plaint prayed for the recovery of 15.000.000= (Fifteen million shillings) and also in the proceedings went ahead to adduce evidence to that effect. In the case of KIBIMBA RICE LTD VS UMAR SALIM, S.C.C.A NO. 17 OF 1992, it was 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”.
The Black's Law Dictionary (8th edition. 2004) at Page 1179 defines special damages as damages that are alleged to have been sustained in the circumstances of a particular wrong. It goes on to state that for these to be awardable, special damages must be specifically claimed and proved.

As per the above jurisprudence, it would only be just if the plaintiff is put back in the previous position he was in before executing the agreement admitted by this Honourable Court as exhibit PE2. We therefore pray that Court awards special damages of 15.000.000= (Fifteen million shillings) money the defendant fraudulently took from the plaintiff on the 04th day of June, 2017.

Interest;
In his pleadings the plaintiff prayed for interest of 10% per month on the principal sum of 15.000.000= (Fifteen million shillings) for the time the defendant has been fraudulently holding onto it. There is no dispute that the defendant indeed took this money. In my opinion this brings in the aspect of interest and the question is would the 15.000.000= (Fifteen million shillings) that the defendant fraudulently took have accumulated interest if invested by the plaintiff elsewhere and the answer is in affirmative.
The aspect of interest has not only been prayed for by litigants but also courts have gone ahead to award them on several occasions. In the Ugandan jurisprudence we have an authority that was recently decided, in Rev. Dr. Grace Patrick Karamura Vs. Matsiko Semu David & Anor HCCS No. 566 of 2014 (Commercial Division Archives); decided by Justice of the High Court Hon. Mr. B. Kainamura where the plaintiff sued the defendants for a principal sum of 370,763,200 and interest for the period the defendants were holding onto his money. In his judgment the Honourable Justice had this to say in paragraph 15 of his decision and I will quote him verbatim. “The purpose for an award of interest is restituo integrum which means that the plaintiff may be restored as nearly as possible to a position he would have been in had the injury not occurred.”
Justice B. Kainamura went ahead to refer to the authority of Riches V Westminster Bank Ltd [1947] 1 ALLER 469 HL at page 472; in this authority Lord Wright explained the essence of an interest award as:
“…payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation…”
Similarly, in the instant suit payment/refund of the 15.000.000= (Fifteen million shillings) became due on the 04th day of June 2017 when the defendant fraudulently sold his father’s kibanja and took the plaintiff’s money. This is conduct that cannot go without Court awarding interest, the defendant has been fraudulently holding onto the plaintiff’s money for close to a year now causing him financial loss and inconvenience. As a matter of fact, if invested elsewhere this is money that should have yielded interest therefore the plaintiff prays for Court to award him interest as prayed for.

Our humble prayer to this Honorable Court is for Orders that:
(a) The defendant pays to the plaintiff general damages for fraud
(b) The defendant refunds UGX. 15.000.000= (Fifteen Million Shillings) as special damages that he fraudulently took from the plaintiff.
(c) The defendant pays interest on (b) above at the rate of 10% per month from the date he received the money.
(d) The defendant pays costs of the suit
(e) Any after relief that the Honourable Court deems fit.

Theft

FINAL SUBMISSIONS OF THE ACCUSED

The accused person X is charged with the offence of theft contrary to Sections 254(1) and 261 of the Penal Code Act Cap.120. It was alleged that the accused during the year of 2005 at Kitete village in the Mukono district stole two television sets, two big radios, 23 boxes of tiles, a fridge, a DVD player, two pairs of shoes, a suit case of clothes and academic papers in the names of Y all valued at approximately UGX. 6,730,000= (Six Million Seven Hundred Thirty Thousand Shillings only) being the property of Y.
The prosecution brought four (4) witnesses to prove their case while the defense brought two (2) witnesses.
PW1: Y who is the complainant in this matter told this Honourable Court that the accused person was his wife. He stated that he left for UK in 2003 living the accused in a rented house. He further stated that while in UK he sent to the accused a generator, a radio, and other things. He further stated that when he came back he found that the accused had sold two houses and went away with everything that was in the house. That among the properties were a generator that he had bought at 100 pounds, clothes, 7 suits, 2 televisions at 300,000 /= each, 2 radios at 100 pounds each, a fridge at 450,000/=. He said that he contacted the accused to bring the things but she refused and also the police called her to bring them and she refused. That he then asked her to take them to the heir (accused’s father) but she only took there an old bag, shoes, jeans and certificates. That those were brought to police but the rest of the properties were not brought. That he was affected because he has no job.
During cross-examination, the witness told Court that he returned from UK on the 11th day of April, 2015. He told Court that he bought the televisions here in Uganda and the radios and the generator from UK. He told the Honourable Court that he sent the radios through sky transporters but he had not come with the sending documents. He also stated that he had sent the generator with the same agent but would not remember the year he sent them. That he sent the suits in 2008 because he had bought them from UK. When asked as to whether Sky Transporters confirmed to him as to the delivery of the properties he said they never confirmed. When asked whether those were the only properties that the accused had taken he said that he had ignored the rest and had nothing to do with them.
PW2: Z who said that is a friend of PW1-the complainant told this Honourable Court that he knows the accused as the wife of the complainant. He further stated that the complainant while in the UK sent to the accused money to build a house and the complainant subsequently bought properties like chairs and a generator. He further stated that he heard from Y that the accused had sold everything. That he went to the house to confirm what Y was saying and found that new people were occupying the house. He further stated that the properties have never been found and that it is the complainant who reported the matter.
During cross-examination PW 2 stated that he has known the complainant since childhood. He further stated that he is sure the accused is the complainant’s wife though he does not remember the year of their marriage. When asked about the type of marriage of the complainant and the accused, PW 2 said that the two are customarily married. He further stated that he does not know whether they have a marriage certificate. When asked about the stolen property, PW 2 stated that amongst them was a generator, clothes but said he did know the exact number, money from the bank amounting to 12 million, land and a house. He further stated that the properties were bought by the complainant in 2009. The witness further stated that the generator was sent from UK by the complainant and it was received by the accused. He further stated that he first found the generator with the accused and he did not know how it was sent and received. PW 2 further stated that he only got to know about the stolen property from the complainant.
PW3: XX who said that he is a biological son of the complainant and a student staying at Kamwokya. He further stated that he knows the accused as his step mother. That in 2005 he was staying with the accused in Luganja. That they later shifted to Mukono. When asked about the stolen property, the witness stated that amongst them were 2 television sets, a fridge, Honda generator, Vacuum cleaner, 4 big radios, sofa chairs, beds, clothes for the complainant, 3 big bags and suit cases, 1 DVD player and a DHD. He further stated that the properties got lost in 2010 when he had just returned from school and that the accused disappeared with them. He stated that he was informed by his cousin like three months after while at school that the properties had been stolen. When asked when and why he left home he stated that he left in 2010 after having a disagreement with the accused. He further stated that the properties got lost while the father was not around.
During cross-examination PW 3 told this Honourable Court that he was born in 1996 and the complainant went to UK in 2003 when he was in primary three. He also stated that he started living with the accused in 2000 when he was 4 years and that he left her in 2010. He further stated that he went back to the house in 2012 around January and February and indeed found that the properties were missing. He said that a few of the properties were sent by PW1 from Uk, like the Generator, Vacuum cleaner, cloths and 3 radios and 2 DVD players. The witness said that they were sent through a shipping Company called SALABED and they were shipped at different intervals by different shipping companies. He also said the accused would receive them and also show him delivery notes by SALABED.
PW4- DAIP YY stated that she was allocated a file of theft where PW1 reported the accused saying that she stole household properties like; Academic papers, 2 TVS, 2 Radios, 2 pairs of shoes, DVD player belonging to PW1. That the theft happened when the complainant was in the UK. That PW1 used to send some properties and would send her money to buy other properties. That PW1 returned from UK and did not find the property nor the accused. That when PW4 summoned the accused, she came and said it was true she sold the radio and the TV to look after the family. For the properties she accepted, she called her brother, a one ZZ to bring them to police and they were brought. She denied having taken the fridge. In cross examination, PW4 stated that the complainant told her that he would send money to the accused and then the accused would buy the said items. She also stated that the complainant produced receipts showing that the accused was receiving money from him. She showed Court a receipt from Westlink dated 09th June 2006 of XY being the sender and the accused as the recipient. The receipt did not bear the signature of the accused and when asked if she ever got in touch with the company Westlink, the witness said she did not neither did she ever get in touch with XY, the alleged sender of the money.
In her defence, AA- the accused denied ever stealing from the complainant. She stated that the complainant is her former husband and the father to her son. She stated that the only properties the complainant ever sent from UK were sent through some lady in Makindye. They included; cloths for children, his cloths and two radios. That she picked them and started using them. The accused only accepted having sold the radios to get some money for family upkeep.
The accused also stated that the properties that were exhibited in court were left with her by the complainant.
DW2- BB stated that he is a brother to the accused and knew the complainant as a husband of the accused. He said that he does not know whether the accused stole any properties of the complainant but he had come to inform court about things the accused brought to him. They included a suitcase with documents, a bag of cloths and a pair of shoes. The complainant is the one that demanded that these things be brought to me and he would pick them. When they brought them, he came and checked them and left them again until they were taken to the police.

The Evidence Act Cap.6 under Section 101(1) and (2) places the burden of proving whether certain facts a party is alleging exist on the person stating them.
The same position is further stated in Woolmington V. DPP (1935) AC. 462, that the prosecution has the burden to prove its case beyond reasonable doubt. 

In the case of Uganda V Ndyabahika Collins Somani & AnorHCT-04-CR-SC-272-2013, where the accused were convicted for theft of a motor vehicle, it was stated that in a case of theft the prosecution has the burden to prove beyond reasonable doubt that the following ingredients existed.
That there was theft of property capable of being stolen.
That the property was fraudulently taken away by the culprit.
That the intention was to permanently deprive the owner of its use.
That it is the accused who carried out the theft.
These are the same ingredients that the prosecution has to prove beyond reasonable doubt against the accused if she is to be found guilty of the charge at hand.
I will now go to evaluation of the evidence on record and deal with the ingredients one at a time.
That there was theft of property capable of being stolen.
The charge sheet showed that the accused was charged with theft of two television sets,two big radios, 23 boxes of tiles, a fridge, a DVD player, two pairs of shoes, a suit case of clothes and academic papers in the names of Bizimana Benon all valued at approximately UGX. 6,730,000= (Six Million Seven Hundred Thirty Thousand Shillings only) being the property of Y.
In his testimony, the complainant only stated a generator that he had bought at 100 pounds, clothes- 7 suits, 2 televisions at 300,000 /= each, 2 radios at 100 pounds each and a fridge at 450,000/=.
Comparing the items in the charge sheet and those mentioned by the accused in court, a generator was not in the charge sheet but was only introduced in Court by the complainant. The complainant did not make a mention of the 23 boxes of tiles, a DVD player, two pairs of shoes and a suit case. Indeed during cross examination, this was brought to the complainant and he said he ignored the rest of the items and had nothing to do with them.

In our opinion, this leaves us with a defective Charge sheet which brings a charge of theft of items that the complainant knows not leaving out those that he complains about. It is our considered opinion that the prosecution should have amended this charge which they never did. But without prejudice to the above, another question arises as to the existence of these items. The prosecution did not prove at all that these items ever existed and that the complainant owned them and they were eventually stolen from him as alleged.

The prosecution never tendered any receipt or any document proving that these items ever existed in the ownership of the complainant- PW1 and indeed, PW1 was asked about these documents during cross examination and he said he had left the receipts with the accused yet in his testimony, he stated that these items were shipped meaning he bought them from abroad where he was. At least he would produce the shipping documents.

The accused on the other hand denied ever stealing those properties. She told this Court that she sold the 2 radios to get money for family upkeep and she further stated that she had no knowledge of the rest of the items apart from the ones that were taken to the police and eventually brought to court. She had not stolen them because it is the complainant who left them in her custody.

The testimony of PW2 and PW3 is evidence that cannot be relied on. It was only hearsay having clearly stated that they received the information from the complainant and a cousin respectively. The prosecution failed to prove this ingredient beyond reasonable doubt because there could not be theft of items that did not/ were not in existence.

That the property was fraudulently taken away by the culprit.
That the intention was to permanently deprive the owner of its use.
The 2nd and 3rd ingredients follow automatically the first ingredient. Failure of the prosecution to prove the 1st ingredient beyond reasonable doubt in our opinion fails the 2nd and 3rd. The culprit, in this case the accused could not fraudulently take away non-existent property and could not have an intention of permanently depriving the complainant of what he actually did not have.
So, the prosecution also failed to prove these two ingredients of the offence of theft beyond reasonable doubt.

That it is the accused who carried out the theft.
We have a lot of un cleared doubt as to whether these properties ever existed. The accused clearly told this Honourable court that the complainant had never bought a TV, had never bought tiles or even a fridge. For the properties he left her with, they were taken to DW2 as he requested and he is the one who refused to pick them until they were brought to police. The accused had not stolen them.

No eye witness was paraded before court to prove that he/ she saw the accused stealing any of the said items or saw her taking them away for sale or anything.
The accused could not have stolen/ carried out a theft of items that the complainant never had or owned.
This ingredient in our opinion was also not proved beyond reasonable doubt by the prosecution.

It seems to us that the complainant went to UK and wasted time and came back a frustrated man in a failed love affair with the accused and is now levelling baseless and wrong accusations against his former lover/ wife.
They may have some domestic issues to settle but not criminal matter to deal with.

In the premises, we pray that this Honourable Court finds that the prosecution did not prove this case beyond reasonable doubt and further pray the this Honourable Court finds that the accused is not guilty of the offence of theft and accordingly acquit her of the same charge.

Removal of Caveat

THE APPLICANT’S FINAL SUBMISSIONS

The facts leading to the above application briefly state that;
The applicant bought a piece of land Comprised in Kyaggwe Block 97 Plot 1801, Land at Mpoma from a one X and accordingly transferred the title into its names under Instrument No. MKO-00024383 on the 12th day of January 2016.

The 1st respondent for reasons that are not known to the applicant caveated the land on the 18th day of January 2017 under Instrument No. MKO-00037697.

Through its Lawyers- Ms. Baruga Associated Advocates the applicant applied for removal of the Caveat and on the 13th day of June 2017, the said application was well received by the 2nd Respondent’s Mukono MZO. However, the said caveat was never removed hence prompting this application to this Honourable Court.

Hearing/Pleadings

The applicant filed an application by way of Notice of Motion brought under Section 98 of the Civil Procedure Act, Sections 140(1), 142, 145, 188 of the Registration of Titles Act and Order 52 rules 1-3 of the Civil Procedure Rules SI. 71-1 against the respondents for orders that the respondents show cause why the caveat they lodged on the applicant’s land should not lapse/be removed, the 2nd Respondent removes the caveat by the 1st Respondent from the Applicant’s land, the 1st Respondent pays compensation/ damages to the applicant for lodging a caveat on the applicants land without reasonable cause and the respondents pay the applicant’s costs of the application. The application was supported by an affidavit sworn by the applicant’s Director Mr. Y. However, the respondents did not file their affidavits in reply and the application was heard ex parte.

The legal issues involved include;

1. Whether or not the 1st applicant had any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.

2. Whether or not the 2nd respondent should remove the caveat lodged by the 1st respondent from the applicant’s land.

3. Whether or not the applicant is entitled to compensation/ damages from the 1st respondent for lodging a caveat on her land without reasonable cause.

4. Whether or not the applicant is entitled to Costs.

Resolution of issues

Issue 1:  Whether or not the 1st applicant had any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.
The Black's Law Dictionary (8th ed. 2004) at page 666 defines a caveat to mean a warning or proviso. It goes on to state that this has to be legal or equitable interest that is protectable by way of lodging a caveat

In the suit of Hooke Vs Holland (1984) WAR 167; it was stated that “the fact that the caveator has a caveatable interest does not by itself mean that he or she had a reasonable cause to lodge a caveat.”

In the case of Sentongo Produce  & Coffee Farmers Ltd Vs Rose Nakafuma HCMC 690/99 it was held that for a caveat to be valid, the cavetor must have an interest legal or equitable to be protected. 

It is our considered opinion that the 1st respondent did not have any legal or equitable interest that warranted him to lodge a caveat on the applicant’s land. First in paragraph 2 of the affidavit in support of the Notice of Motion sworn by the applicant’s director it was clearly stated that the applicant being a company bought a piece of land Comprised in Kyaggwe Block 97 Plot 1801, Land at Mpoma from a one X and accordingly transferred the title into its names under Instrument No. MKO-00024383 on the 12th January 2016. It is rather interesting that at the time when the company bought this land it was free of any encumbrance and the 1st applicant’s name was not mentioned in the history of ownership of this land. We wonder why the 1st respondent had to illegally lodge this caveat at the time when the applicant bought.

Secondly, while the applicant labored to effect service of the application on the 1st respondent for two times. The 1st respondent did not mind to put in his defense until when Court decided to proceed ex parte. To us conduct of the 1st respondent is apparent of some one who without justifiable reason lodged a caveat on the applicant’s land. The 1st respondent was accorded reasonable and a just opportunity to prove to this court that he holds a legal/equitable interest in the applicant’s land which he put to waste. Such an abuse of Court’s time should indeed work to the detriment of the 1st respondent.  In the premises we pray that Court finds that the 1st respondent did not have any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.

Issue 2: Whether or not the 2nd respondent should remove the caveat lodged by the 1st respondent from the applicant’s land.
Having proved to this honourable Court in Issue 1 that the 1st respondent did not have any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat, it then follows that the 2nd respondent was wrong to register it. Furthermore the 2nd respondent did not show cause why the caveat lodged by 1st respondent should not lapse/be removed. We therefore pray that this Honourable Court orders the 2nd respondent to remove the caveat lodged by the 1st respondent.

Issue 3: Whether or not the applicant is entitled to compensation/ damages from the 1st respondent for lodging a caveat on her land without reasonable cause.
Order VII rule 7, of the Civil Procedure Rules SI 71-1, states that general damages may be awarded by court where court finds it appropriate to do so even where a party has not specifically stated them as a relief sought. 
Ugandan case law has also gone ahead to provide for general damages that may be awarded to litigants as was seen in the suit of Crown Beverages Ltd. vs. Ssendi Edward, SCCA No. 2005; where Ssendi consumed a Pepsi soda which had fallen products of a snail that affected his reproductive system. In the locus clasicus case it was stated that the amount to be awarded as general damages is a matter of discretion of the trial court which must be exercised judicially.
Similarly the Black's Law Dictionary (8th edition. 2004) at Page 1174 defines general damages as damages that the law presumes follow from the type of wrong complained of also known as compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved

In the suit of Kampala District Land Board & George Mitala V Venansio Babweyana, Civil Appeal No. 2 OF 2007 it was decided that “…it is well settled law on award of damages by a trial court. It is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering.”
The 1st respondent without any legal/equitable interest in the applicant’s land lodged a caveat on it on the 18th day of January, 2017 under Instrument No. MKO-00037697. This caveat is standing to date. The applicant being a financial company had many plans for this land that were frustrated by the 1st respondent. In a similar suit FERDINAND MUGISHA VS. STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise had this to say and we quote her verbatim
“…plaintiff cannot be without remedy of an award of general damages in the given circumstances where he clearly suffered inconveniences trying to remove the caveat and file a suit against the 1st defendant. An award of Ugx 15,000,000/= (fifteen million) as general damages in favour of the plaintiff would be appropriate, considering that the land is in the outskirts of Kampala, at Bwebajja.”
Similarly the applicant has gone through untold suffering since the 1st respondent lodged a caveat on her land. The applicant’s director stated in paragraphs 4 & 5 of the affidavit in support of Notice of Motion that the Applicant, through their Lawyers- Baruga Associated Advocates applied for removal of the Caveat and on the 13th day of June 2017, the said application was well received by the 2nd Respondent’s Mukono MZO but up to date the said caveat has not been removed.
The only remedy that the applicant was left with is file this application for an order to remove the said caveat.  Therefore the applicant prays for general damages for the period the 1st respondent has continuously maintained a caveat on her land.

Issue 4: Whether or not the applicant is entitled to Costs.
Section 27 of the civil procedure Act cap 71 provides that the court has discretion to determine costs and against whom. Cost has been defined by the Black's Law Dictionary (8th edition. 2004) at page 1048 to mean the amount paid or charged for something; price or expenditure. It can also be understood as EXPENSE.
In the suit of FERDINAND MUGISHA VS STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise clearly noted that the plaintiff had incurred a lot in filing a suit for removal of caveat and also pursuing the same. She went ahead and awarded costs of the suit to the plaintiff. In the instant suit, the applicant has similarly incurred a lot first in applying to the registrar of titles Mukono MZO through her lawyers to have the caveat removed. Secondly the applicant has also incurred a lot in filing and pursuing this application in this Honourable Court for which she prays for costs.

Our humble prayer to this Honorable Court is for Orders that:
a) The 2nd Respondent removes the caveat by the 1st Respondent from the Applicant’s land.

b) The 1st Respondent pays compensation/ damages to the applicant for lodging a caveat on the applicants land without reasonable cause.

c) The Respondents pay the applicant’s costs of this application.

Trespass to land

FINAL SUBMISSIONS OF THE DEFENDANT
The facts leading to the above civil suit briefly state that;
The defendant is called X a peasant aged 60 years. The defendant’s son, the late Y was the owner of the contested suit property which he purchased on the 5th day of February, 1995. This kibanja is found in Kalagi LC 1, Nabbaale Sub County and it neighbours Ms. Z and it stretches from the back cloth tree up to the late XX. At the time of his death, he left 5 children two plots of land annexed to one another. The first plot which is not in contention in this Honourable Court had quite a number of developments including a house that the late Y used to live in with his family and also had rentals on the same.
However the second plot which is in contention in this Honourable Court was purchased by the defendant’s late son on the 5th day of February, 1995. After the death of the defendant’s son, YY whom he had left as care taker of the deceased’s plots was one day at around 2 pm in the house when he heard people talking outside in the contested plot. He moved out and found out that they were planting boundary marks on the deceased’s plot. He as a caretaker tried to inquire from the deceased’s mother/defendant in this case to find out whether the people planting boundaries had been sent by her.

On the following day, the deceased’s mother/defendant in this suit went to the area Chairman L.C.1 to report the matter of people planting boundaries on the plot of her son. The area Chairman said that he was not aware of the planting of the boundary marks and that she was free to use her son’s plot. However, when the defendant assigned a porter to make for her bricks the area committee members ZZ and XY came and threatened to arrest the defendant’s porter hence stopping the work of brick making.
That the deceased’s mother/defendant bought bricks and sand to develop her late son’s plot. That indeed the development was started but unfortunately unknown people came and demolished the house that had reached window level. The defendant did not lose hope but went ahead to reconstruct the structure that had been put down and indeed in 2003 completed a pit latrine.

That at the time of instituting this suit by the plaintiff in this Honourable Court, he intimated to the defendant that he had no interest in the suit but was rather being used by some crooks, hence bringing up this suit of trespass.

The following issues were raised for the determination of this Court.
1. Whether or not the defendant is a trespasser on the suit kibanja.

2. What are the remedies available to the parties?

In resolving the first issue as to whether the defendant is a trespasser on the suit kibanja;
First and foremost we have to understand what amounts to trespass.

In the case of JUSTINE E.M.N LUTAAYA VS STIRLING CIVIL ENGINEERING CO SCCA NO.11/2002, it was stated inter alia....that Trespass is a continuing tort when unlawful entry on the land is followed by its continuous occupation or exploitation.
Similarly, the Black’s Law Dictionary 8th Edition at pg.4685 defines trespass as an unlawful act committed against the person or property of another.
Important to note is that for the plaintiff to succeed in a suit of trespass, there are two well established key elements which have to be proved at a balance of probabilities and these being, having title to sue and being in possession of the land trespassed onto and the conduct of the defendant must be voluntary, intentional, reckless or careless. as discussed below;

In the case of Newington v Windeyer (1985) 3 NSWLR 555, this authority establishes the first element being; having title to sue and being in possession of the land trespassed onto, in this case, the Plaintiff had common boundaries with the Defendant with an area fronting onto the street. Whilst the Plaintiff did not have title over the area, they had gates giving access to it. Over a period of more than 50 years, they had cultivated the area as a garden and executed other acts of possession, and their visitors and trades people used it. They brought an action for trespass against the Defendant who had a common boundary with the area and claimed the right of possession, but who had no history of the exercise of this right. It was held that there was a trespass as the Plaintiffs had adverse possession of the land. Similarly in the case of Vaughan v Shire of Benalla (1891) 17 VLR 129, it was held that mere use of land without exclusive possession to land does not provide the required title to sue in trespass.

In the suit before this Honourable Court, the plaintiff claimed that he bought the suit kibanja on the 15th day of August, 1994 from a one AA. What is so interesting is that from the time the plaintiff claims to have bought the suit kibanja he has not shown any act of actual possession of the same. We indeed wonder whether the plaintiff is the actual owner of the suit kibanja as he claims, this is because there are three agreements of purchase and sale of the same kibanja. No wonder it is only the defendant who has shown actual possession of her late son’s kibanja as she has shown acts of development as she assigned a porter to make for her bricks,unfortunately the area committee members came and threatened to arrest the defendant’s porter hence stopping the work of brick making.

The deceased’s mother/defendant brought bricks and sand to develop her late son’s plot. That indeed the development was started but unfortunately unknown people came and demolished the house that had reached window level. The defendant in her elderliness did not lose hope but went ahead to reconstruct the structure that had been put down and indeed in 2003 completed a pit latrine. While all this was being done the person who claims to be owner of the suit land was not doing development none the less resistance that was being done by the LC members who we indeed see that have intentions of defrauding the late Y’s family of their kibanja.

What is interesting in this suit is that the LC is very much interested in the late Y’s kibanja no wonder they have been involved in a lot of illegal acts like stopping the defendant’s porter from laying bricks. The plaintiff even intimated to the defendant that he had no interest in the suit but was rather being used by the LC 1 executive hence bringing up this suit of trespass. No wonder it is quite interesting for this Honourable Court to note that a one XZ crafted an agreement DE1 of sale dated the 6th day of February, 2005 of the deceased’s kibanja/suit kibanja and during the hearing of this suit the above mentioned agreement was admitted/not contested by the plaintiff’s lawyer.

We wonder why someone who admitted that there was an agreement of sale dated the 6th day of February, 2005 giving someone else possession of the suit kibanja would actually bring a claim that the defendant trespassed on his kibanja and yet he states that the kibanja is owned by someone. This lives the suit that was instituted by the plaintiff in balance, with all that has been stated we clearly see that there is connivance of the LC 1 and the plaintiff to defraud the family of the late Y. To further prove that the plaintiff and his team are indeed intending to defraud the family of the late Y, during the hearing it was the plaintiff’s own testimony that he did not know the size of the kibanja in contention. We wonder how someone who has instituted a suit of trespass in this Honourable Court cannot know the size of the kibanja that was trespassed onto.

The plaintiff adduced evidence in form of receipts of Busuulu to prove that actually he is the owner of the kibanja in contention. But the receipts that were brought by the plaintiff do not show which kibanja he was paying for and further the date, month and year of payment are not shown.

In our view this lives the suit of trespass that was instituted by the plaintiff in this Honourable Court in balance and this Court should not be seen to aid this fraud being done by the plaintiff and his masterminds behind the curtains.

The second element for the suit of trespass to succeed is that Conduct of the defendant must be voluntary, intentional, reckless or careless. In the case of Plenty v Dillon (1991) 171 CLR 635, where the Defendant was a police officer charged with the duty to serve summons to the Plaintiff. He entered onto the Plaintiff's premises with the intent to serve the summons from the Court. The occupier refused consent. It was held that the police officer was not authorized by common law to enter upon private property without the proprietor’s consent and hence the suit of trespass succeeded against the defendant.

In the suit before this Honourable Court we do not see any of the acts of the defendant for having been voluntary, intentional, reckless or careless hence amounting to trespass on the suit kibanja as the owner the late Y was the son of the defendant. He left 5 children in the care of the defendant/their grandmother.
The acts of developing the suit kibanja were for the best interest of the deceased’s children that were left in the care of the elderly woman/their grandmother the defendant. This Honourable Court should further be alive to the fact that failure to prove element number 1 at a balance of probabilities automatically fails ingredient number 2. In our view the plaintiff has failed to prove element number 1 at a balance of probabilities and hence element 2 cannot succeed because there is no way the defendant would have conducted herself in a voluntary, intentional, reckless or careless manner on property that was never for the plaintiff but rather her late son’s property that the plaintiff and his master minds behind the curtains are intending to defraud her of.
Basing on the above mentioned authorities, the defendant cannot be found to be a trespasser since she is using the suit kibanja/property of her late son in trust for the benefit of the late’s 5 children.

In resolving issue 2, what are the remedies available to the parties?

Our humble appeal to this Honourable Court is that Court finds that the plaintiff failed to prove on a balance of probabilities that the defendant trespassed on the suit kibanja and therefore not entitled to any of the remedies sought. And we further appeal to this Honourable Court to find that the defendant is lawfully in occupation of the suit kibanja and not a trespasser and in the circumstances judgment be entered against the plaintiff with Costs.