Ategeka v Tibenda (HCT-01-LD-CA 16 of 2021) [2024] UGHC 1057 (7 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGAND AT FORT PORTAL** 3 **HCT – 01 – LD - CA – 016 OF 2021 (ARISING FROM KYENJOJO C. S NO. 022 OF 2012) ATEGEKA CHARLES:::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT** 6 **VERSUS TIBENDA YUSUF :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA** 9 **JUDGMENT**

# **Introduction:**

- 12 The appellant Ategeka James being aggrieved with the decision of His Worship Muhumuza Asuman, Magistrate Grade One at Kyenjojo Chief Magistrate's Court in Kyenjojo Civil Suit No. 22 of 2012 appealed to this Court seeking orders that the - 15 judgment and decree of the lower court in Kyenjojo Civil Suit No. 22 of 2022 be set aside, that a declaration be issued confirming the appellant as the owner of the suit land, an order of eviction issues against the Respondent from the part of the suit land - 18 he is illegally occupying, a permanent injunction and costs of the appeal and in the court below.

#### 21 **The Case of the Respondent at Trial:**

The Respondent commenced Kyenjojo Civil Suit No. 022 of 2012 against appellant 24 in trespass. It was the case of the Respondent that he got the suit land located at Kisana Village, Kisojo Parish, Kisojo Sub county, Kyenjojo District from his uncle,


the late Philip Isoke who acquired the same by first occupancy. Tn 2001, the appellant trespassed on the same, planted cassava, potatoes, beans and other seasonal

3 crops. That he filed a case in the L. C Courts where later the Chief Magistrate ordered for a retrial before this court. He asked court to issue an order declaring him the lawful owner of the suit land and a declaration that the appellant was a trespasser, 6 an order of vacant possession, general damages and costs of the suit.

#### **The Case of the Appellant at Trial:**

The appellant in defense contended that Respondent had no claim against him. That the will presented by the Respondent was not signed by the testator which made it 12 null and void. The late Philip Isoke had no land in the area to will to the Respondent. The land belonged to the appellant's late father, Benjamin Kwamya. That the late Benjamin acquired the said land from his forefathers and the appellant grew up using 15 the land for grazing and cultivation. That the appellant together with his brothers Frederiko Rusoke, Selevasta Karatunga and Stephen Rwabajunju applied for the same land from Uganda Land Commission and were granted a lease offer after 18 inspection of the land by Kabarole District Land Committee who approved the application. That the appellant and his brother had been in occupation of the suit land and the respondent has no claim over the same. The appellant asked court to 21 dismiss the Respondent's claim with costs.

#### **Judgment of the Trial Court:**

The trial Court entered judgment in favour of the Respondent. The Respondent was declared the lawful owner of the suit land. A permanent injunction was issued 27 restraining the appellant, his agents and those claiming under him from further


trespassing on the suit land, general damages of shs 3,000,000/= and cost of the suit. The appellant being aggrieved with the said findings appealed to this court.

## **Grounds of Appeal:**

**(1)The learned Trial Magistrate erred in law and fact and did not** 6 **adequately evaluate the evidence on record when he concluded that the suit land belongs to the plaintiff (Respondent) and the appellant a trespasser.**

- 9 **(2)The learned Trial Magistrate erred in law and fact and misdirected himself when he resolved the dispute on the sole basis of possession and long usage of the suit land.** - 12 **(3)The learned trial Magistrate erred in law and fact when he did not adequately evaluate the evidence on record when he held that the plaintiff is a predecessor in title and used the suit land earlier than the defendant.** - 15 **(4)The learned trial Magistrate erred in law and fact and did not adequately evaluate the evidence on record when he found that the plaintiff was the owner of the suit land by gift inter-vivos.** - 18 **(5)The learned trial Magistrate erred in law and fact and did not adequately evaluate the evidence on record when he found that the plaintiff was the party in possession and hence the owner of the suit land.** - 21 **(6)That the award of shs 3,0000,000/= without prejudice to the other grounds was harsh and excessive.**

## **Legal Representation and Hearing:**

24 *M/s Byamukama. Kaboneke & Co. Advocates* appeared for the appellant while *M/s Bukenya Lumu & Co. Advocates* appeared for the Respondent. Both counsel


addressed me on the merits of the appeal by way of written submissions which I have duly considered herein.

# **Duty of this Court:**

- 6 As the first appellate court, my duty is to subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to my own conclusion. *(See: Father Nanensio Begumisa& 3 others vs Eric Tiberaga SCCA* - 9 *17 OF 2000 [2004] KALR 236)*. I am duty bound to do a re-evaluation of the evidence on record of the trial court as a whole weighing each party's evidence, keeping in mind that as opposed to the trial court, I had no chance of seeing and - 12 hearing the witnesses testify to assess their demeanor and consistency. *(See: Uganda Breweries v Uganda Railways Corporation 2002 E. A).* - 15 **Consideration of the appeal:**

## **Grounds 1 - 5:**

The respondent *PW1 (Joseph Tibenda)* testified that he acquired the suit land in 1993, by way of inheritance from his uncle Phillip Isoke, who had been a first settler 21 there, when his said uncle was still alive. It was also stated in Phillip Isoke's will. He had grown up with his said uncle. He was given the land in the presence of Phillip Isoke's sons, namely, Lawrensio Tinkasimiire, Alozio Rwemukara, Wilson 24 Rwabajungu (deceased) and Christopher Kyomuhendo (deceased). The will was kept by Lawrensio Tinkasimiire the heir of Phillip Isoke. The respondent was in occupation of the suit land when it was trespassed upon by the appellant who cut his

27 coffee, cultivated maize, cassava and Irish Potatoes. The trespass occurred in 1995 and he kept cultivating the suit land. That he had his home and a banana plantation on the suit land. That after trespass he sued the appellant in L. C I Court where the


appellant lost but refused to vacate. The case went to L. C. III and he lost and later appealed to the Chief Magistrate who ordered for a retrial. That he was aware and 3 Phillip Isoke was informed, when the appellant applied for a lease and that by the time they applied, he was in possession of the suit land.

- 6 *PW2 (Christopher Mulingoki)* testified that the respondent's land was about 8 to 10 acres and the appellant trespassed on about 4 acres and was using the said land for cultivation. That the appellant first trespassed on the land belonging to the family of - 9 the late Isoke Phillip and later extended to trespassing upon the respondent's land. The appellant took advantage of the communal grazing. That the respondent occupied the reminder of his land where he grows coffee, a banana plantation, 12 avocado trees, gardens of seasonal crops, a grazing area and a home. That the suit land belonged to the late Isoke and the respondent acquired it from him. That by the time he was born, Isoke was in possession of the suit land and he knew him as the 15 owner. - *DW1 (Ategeka Charles)* aged 73 testified that his father Benjamin died in 1947, had 18 shifted to the suit land in 1911 with over 200 heads of cattle and settled on about 100 acres. In 1988, they applied for a lease from government and the DC inspected the land. That the relatives of the respondent including Isoke was present and confirmed - 21 the land was theirs. That they got a lease offer in the names of four people that is Ephraim Kyamuretsire, Ferederiko Rusoke, Karatunga Sylvester, Charles Ategeka, Stephen Rwabajungu (DEX1). The respondent was not on the suit land. That the - 24 land claimed by the respondent was about 20 30 acres. The respondent started claiming the land in 2011. In cross examination he stated that he said that they got the lease in 1991 and accepted the offer in 1992. It was government land. That the


fees of 146.400/- was paid. That they did not go back to renew after expiry of the five years. The land was not surveyed and had no title. In re-examination he stated 3 that the respondent encroached on a small part of the suit land.

*DW2 (Kanyobya Bamwenda)* aged 65 years testified that he was an acting Parish 6 Chief of Kikoda in 1988. That the family of the appellant went to him for confirmation of their land. That by the time he was born, he found the appellant's family and relatives residing on the suit land. The land was government land but he 9 did not know whether it was still government. That he grew up seeing the respondent as a resident of Kisojo.

- 12 *DW3 (Ruhunga Vincent)* aged 68 years testified that he had known the appellant since childhood; they attended the same Primary School. That he came to know the respondent around 2000. The respondent entered the land of the appellant and started - 15 burning charcoal. The appellant used to cultivate the land and the rest for grazing. That the suit land was acquired by the appellant's father as a first settler in the 1940s and the appellant lived on the suit land. That he knew Phillip Isoke who was a - 18 maternal uncle to the respondent and a resident of Kisojo. That Isoke's land neighbors the land that the respondent got from the maternal relatives. That by the time he was born, the appellant's father had died and the appellant was in possession 21 of the suit land.

At locus in quo, the respondent (PW1) clarified that the appellant planted the 24 eucalyptus trees by force around August 2018, and also planted coffee and maize by force. That the trespass started in 1993. The maize was newly planted. *PW2 (Mulingoki Christopher)* also clarified while at locus that the respondent had never 27 buried anybody on the suit land. That to his knowledge, there was no grave on the


suit land. *DW1 (Ategeka Charles)* also clarified while at locus that the area land committee inspected the entire land and the neighbors were there. That Phillip Isoke

- 3 was also present. The land was inspected in 1988. The lease offer was for 49 years. The inspection was done in one day by a team from Fort Portal. That the maize on the land was his and had gardens on the suit land for many years. - 6

## **Analysis of the Evidence:**

- 9 The Respondent was unclear and inconsistent regarding when he acquired the suit land. He indicated that they came with his mother in 1975 and settled on the land. He also stated that he got the land from his late uncle Phillip Isoke and assumed 12 possession of the same. The respondent contradicted himself regarding when he was given the land, citing 1975, 1993 and 1995. He also stated that he constructed a house on the suit land in 1994 and the dispute with the defendant started in 1995. He also - 15 stated that the late Isoke by will dated 2/06/1993 (PEX1) confirmed giving him the land. The respondent told court that he was aware and that the late Isoke was also informed, that the appellant's family was applying for a lease. PW2 corroborated the - 18 testimony of PW1 that he came with his mother on the suit land in 1975. The mother put a house thereon where they stayed. The mother later got married and took with her the respondent's young brother. The respondent's mother was a sister to the late - 21 Isoke. In cross examination he stated that they used to graze on the suit land but were later restricted by the appellant. It remained unclear from the record as to when and how the respondent was given the land by Isoke if at all. What was clear was that - 24 both the respondent and Isoke were aware of the appellant's family's application for a lease. The learned trial Magistrate rightly observed that the document that the respondent adduced as a will did not conform to the requirements of a will under


section 50 of the Succession Act. It was not signed by the late. At the same time, DW3 who was closely related to the respondent explained in cross examination that 3 the land given to the Respondent was on the Eastern part of the hill and the appellant was on the Western part. That the Respondent had descended on the Western part encroaching on the land of the appellant. PW1 admitted in his evidence that when 6 the defendant wanted to create a lease over the suit land, they informed the late Isoke Phillip. If indeed the land was for Isoke, he would have objected to the defendant/appellant creating a lease over his land. DW1 stated that when the area 9 land committee from Kabarole came to inspect the suit land, the late Phillip Isoke was present and never raised any objection. DW2 told court that in 1988 when he was acting Parish Chief, they inspected the land for the defendant which included 12 the suit land. The land was for the appellant. PW2 at locus further informed court that the Respondent had never buried any relative on the suit land. PW2 also stated in cross examination while in court that he used to graze on the suit land but was 15 restricted by the appellant. DW3 gave un-contradicted evidence regarding the land in issue. He clarified that the land given to the plaintiff/Respondent neighbors the suit land. It was also clear at locus that the land in dispute was occupied by the 18 appellant who had mangoes, coffee, maize gardens and other seasonal crops. The evidence demonstrated that the land claimed as gifted to the Respondent by his uncle, if at all, was different from the suit land. The respondent at trial on the balance 21 of probabilities failed to prove his claim against the appellant. The respondent's suit fails. The suit land belongs to the appellant.

24 I therefore agree with the submissions of Mr. Kasigazi for the appellant that the learned trial Magistrate did not properly evaluate the evidence on record in arriving


at the findings he made. Therefore, grounds 1, 2, 3, 4 and 5 succeed. I find no relevance in considering ground 6. Therefore, the appeal by the appellant succeeds 3 with the following orders:

- **1. The judgment and orders of the trial court in Kyenjojo FPT – 21 – CV – CS – 059 of 2012 are hereby set aside.** - 6 **2. A declaration doth issue that the appellant is the lawful owner of the suit land.** - **3. A declaration doth issue that the respondent is a trespasser on the suit** 9 **land.** - **4. An order of permanent injunction doth issue restraining the respondent or his agents or those claiming under him, from further trespassing upon** 12 **the suit land or otherwise interfering with the appellant's ownership, possession, occupation, or use of the suit land.** - **5. The respondent is hereby ordered to immediately give vacant possession** 15 **of the suit land to the appellant, and in any event within a period not exceeding 3 months from the date of delivery of this judgment, and in default thereof, an eviction order issued herewith shall be executed** 18 **against the respondent.** - **6. The costs of the suit are awarded to the appellant in this court and in the court below.** - 21 It is so ordered.


Vincent Wagona

24 **High Court Judge**


**FORTPORTAL DATE: 07/11/2024**