THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATES COURT OF MUKONO AT NJERU

CIVIL SUIT NO. 18 OF 2018

AHAMADIYA MUSLIM MISSIONS UGANDA::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

1. MUTUMBA NSEREKO FRANCIS::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS

2. NABUKALU JESSY

PLAINTIFF’S WRITTEN SUBMISSIONS

The Plaintiff filed this suit against the Defendants for illegal trespass on the Plaintiff’s
land, a Permanent Injunction, General Damages, Declaration that the Plaintiff is the
lawful/rightful owner of the suit land and costs of the suit.

According to the Joint Scheduling Memorandum that was filed in this Honourable Court
on 1st February 2019, 3 (three) issues were raised for determination by this Honourable
Court namely;

1. Whether the Defendants are trespassers on the suit property

2. Whether the Defendants have any interest in the suit land

3. What remedies are available

RESOLUTION OF ISSUES

ISSUE 1

Whether the Defendants are trespassers on the suit property

The tort of trespass was defined in the case of Justine E.M.N Lutaaya vs. Stirling Civil
Engineering Co. Ltd SCCA No. 11 of 2002 as follows;

“Trespass to land occurs when a person makes an unauthorized entry upon land and
thereby interferes or portends to interfere with another person’s lawful possession of that
land”.

At trial the plaintiff produced 3 (three) witnesses to prove his case. They tendered in their
witness statements
PWI HABIB LUKWAGO stated in his witness statement that on the 1 st day of November
2003, the plaintiff institution purchased a lease measuring approximately 1.185 hectares
on plot No. 428 Block 293 located at Kyaggwe in Njeru from Buganda Land Board and
the transfer forms together with the original ownership documents were given to the
plaintiff institution which transferred the same into its names. A copy of the Lease title
and transfer forms were tendered in as PID1and PID3.

PW1 went on to state that at the time of the purchase of the said land, it was free of any
encumbrances with no claimants or squatters and the plaintiff fenced off all the said land
as it was working on starting to construct a mosque.

PW1 stated further that on the 18th day of December 2017, without any color of right or
lawful excuse, the defendants trespassed onto the plaintiff’s land without the consent or
permission of the plaintiff’s leaders, removed part of the plaintiff’s barbed wire and
started constructing on the plaintiffs land which prompted the plaintiff to issue a warning
letter to any trespasser. The said letter was tendered in as PID7.

Further still PW1 in his statement stated that he and other leaders of the institution
approached the 2nd defendant to inquire where she got the authority to trespass into the
plaintiff’s land to which she claimed that she had purchased it from the 1st defendant and
she showed him a copy of the agreement which was tendered in as PID9.

That PW1 together with other leaders of the plaintiff institution have made all attempts to
warn the defendants against their trespass but the latter has refused to heed the warnings
despite lodging several cases of criminal trespass against them at Njeru Police station
which are still under investigation.

The actions of the defendants have since blocked the plaintiffs’ planned actions for
development of the suit land for which PW1 prays for mesne profits.

The leaders of the plaintiff institution have suffered great loss and a great deal of
inconvenience as result of the defendants’ illegal actions for which general damages are
prayed for and if the defendants are not ordered to specifically stop trespassing on the
plaintiff’s land, the plaintiff will suffer great injustice.

PW1evidence in chief was not shaken in cross examination.

PW2 HAJJI MUHAMMAD KATO NSUBUGA corroborated the evidence in chief of

PW1 and was neither shaken in cross examination.
PW3 KASOZI MARTIN gave evidence by statement as a manager of Buganda Land
Board, Njeru Branch.

He stated in his statement his office received a complaint from the plaintiff’s institution
on 18th December 2017. PW3 authoritatively and categorically state that the 1st defendant
had no right to sell the land to the 2nd defendant since the original and lawful owner was
was Buganda Land Board which had legally sold the land to the plaintiff institution.

That his office went as further as to write a letter to the 2nd defendant through their
physical planner to demand that she halts her illegal action but she refused to heed their
warning. The said letter was tendered in as PID8.

In cross examination, PW3 confirmed that Buganda Land Board issued a lease to the
plaintiff institution in 2003 and that the 2nd defendant was indeed issued aletter from
Buganda Land Board stopping her from any further trespass on the suit land.

In re-examination, PW3 assured court that the plaintiff fulfilled all the conditions in the
due process of issuance of the lease title and that the said issuance made the process
complete and according to the Board, the plaintiff is the rightful owner of the suit land.

The Defendants produced 5 witnesses to defend their case who filed witness statements
to that effect.

DW1, MUTUMBA NSEREKO FRANCIS stated in his witness statement that the late
Male Mustafa sold part of his kibanja to him and he took over. That the sad kibanja on
which the kibanja sits is next to the plaintiff’s land and there is a clear boundary between
his kibanja and the suit land.

He claims that upon the death of the late Male Mustafa, his wife got Letters of
Administration to the Estate but the said Letters of Administration were not produced in
court. DW1 further stated that the late’s wife distributed her children’s beneficial shares
to them and they then sold to DW1.

The said Hasifa Nakakawa, Aisha Namboze, Rehema Nansereko and Nulu Nababi were
never produced in court to explain with which authority they used to sell their portions to
DW1 without Letters Of Administration.

DW2 NABUKALU TESSY stated in her witness statement that sometime back in 2017,
she bought a portion on the suit land from DW1.

DW3 SAIDI SEBABI who is a customary heir of the late Male Mustafa stated in his
witness statement that his late father as a staunch moslem had given out some portion of
kibanja to the plaintiff to construct a school, a mosque and burial ground. That the
remaining portion of the kibanja was distributed the late Male Mustafa children who sold
to the First Defendant and the second defendant is not a trespasser as her stay on the land
was consented to by the First defendant.

DW3 also stated that the lease acquired by the plaintiff in 2003 and title in 2006 was
subject to their bibanja interests as they have been on the land for a long time before the
defendants.

In cross examination, DW3 could not explain to this Honourable court how they could
have sold to the First Defendant without Letters of Administration.

DW4 DAVID NSEREKO KATEYENGE who is a son to the First Defendant re echoed
the statements made by his father in his witness statement but still failed to prove to this
court where his family members got the authority to sell to the First Defendant.

DW5 YUNUS NSUBUGA KIWALYANGA MUZANGANDA who sometime back in

1998 was a Kabaka’s agent in Kyaggwe specifically in Nyamwezi Kyabagu in Njeru Sub
county stated in his witness statement that as a representative on Buganda Land Board, he
chaired and presided over a meeting of the children of the late Azedi Muyise to distribute
the late’s kibanja among the orphans/children. That the said Muyise Azedi who had
occupied and utilized the said kibanja for sometime had also donated part of it to the
plaintiff and sold another portion of it to the first defendant. That its not true that the 1st
and 2nd defendants are occupying or trespassing onto the plaintiff’s land but that they are
occupying their respective bibanja.

In cross examination DW5 failed to prove to this Honourable Court if the children of the
late Azedi Muyise or his wife legally sold by first acquiring Letters of Administration
before they sold to the defendants.

At the locus visit, it was clearly shown that the defendants land is situated on the
plaintiffs land and not a neighbor to it as had been alleged by the defence witnesses.

In conclusion, it is submitted for the plaintiff that the defendants are trespassers on the
plaintiff’s land and we pray that this Honourable court holds to that effect.

ISSUE 2

Whether the Defendants have any interest in the suit land

It is submitted for the plaintiff that the wife of the late Azedi Muyise who distributed the
late’s property to her children without first acquiring Letters of Administration
transferred no interest in the land to her children who later sold to the First Defendant.

For the First Defendant to continue stating that the land he bought from the late Azedi
Muyise family is different from that of the plaintiff yet at the locus it was shown that the
First Defendant’s land is on the plaintiff’s land only means that the First Defendant
acquired no legally recognized interest in the land he bought from the children of the late
Azedi Muyise and hence he sold air to the second defendant.

The Defendants therefore acquired no interest in the suit land and have no interest therein
but are merely trespassers.

ISSUE 3

What Remedies Are Available

The Plaintiff prays that the Defendants be declared trespassers on the suit land.

The Plaintiff also prays for a Declaration that it is the lawful/rightful owner of the suit
land.

The plaintiff prays for a Permanent Injunction to issue against the Defendants stopping
any further trespass

The plaintiff also prays for an eviction order to be issued against the defendants.

It is the plaintiff’s contention that given the inconvenience caused by the defendants’
trespass on its land, General Damages of Ug. Shs. 8,000,000/= (Eight Million) only
would be adequate recompense.

The plaintiff further contends that if it was not for the trespass of the defendants on its
land, it would have greatly developed its land by constructing other buildings in addition
to the mosque and school thereon that would generate profit for which it is prayed that
this Honourable Court awards mesne profits to the plaintiff.

The plaintiff also prays to be awarded the costs of the suit and any other just and
equitable relief deemed fit by Court to so grant.

We so pray.
Dated at Kampala this……………………day of……………………………………2023.

…………………………………………

Counsel for the Plaintiff

Drawn and filed by

M/s Kajeke, Maguru & Co. Advocates

Plot 27, Martin Road, Old Kampala

Katorano Towers, Ground Floor, Office 1, 2 and 4

P.O.BOX 31026, Kampala