Biribonwa and 2 Others v Nyombi (Civil Appeal 67 of 2022) [2024] UGHC 579 (30 April 2024)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT MASINDI**

### **CIVIL APPEAL N0. 0067 OF 2022**

**(Arising out of Masindi Chief Magistrate's Court of Masindi at Masindi in Civil Suit No. 0013 of 2020)**

- **1. BIRIBONWA PATRICK** - **2. KABABAMBE DEO** - **(Administrators of the estate of the late Aloysius Kamanyire)**

**3. BUKENYA TADDEO**

10 **(Administrator of the estate of the late Addidas Matovu) ………………………… APPELLANTS**

#### **VERSUS**

**NYOMBI HERBERT ………………….…………………………………………………… RESPONDENT**

### **BEFORE: Hon. Justice Isah Serunkuma**

### **JUDGEMENT**

## 20

### *Introduction*

The Appellants filed Civil Suit No.0013 as children, beneficiaries, and Administrators of the estate of the late Yakobo Mugenzi. This suit was initially filed by the late Aloysius Kamanyire, father to the 1st and 2nd Appellants, and the late Matovu Addidas, father to the 3rd Appellant, who unfortunately died during the pendency of the instant suit and was substituted by the current Appellants in their capacity as administrators.

The case against the Respondent is for trespass to land, a declaration of ownership of land, damages for loss of property, and to secure a permanent injunction to restrain the Respondent and his agents from further trespassing on their land, constructing an illegal

30 structure thereon, or in any other way interrupting the Appellant's use and enjoyment of the suit land.

The Appellants claim that they are grandchildren and beneficiaries of the estate of the late Yakobo Mugenzi, the original customary owner of the land located at Kisarambwire Cell, Kihuuba Ward, Karujubi Division, Municipality, Masindi District, which the latter acquired as vacant land in the 1950s. They also contended that they grew up on their

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fathers' portions of the suit land and have utilized the same as family for both food and cash crops.

On the other hand, the Respondent denied the Plaintiff's claims and contended that he bought the suit land on 17th June 2016 from Lukwago Godfrey, a nephew to the plaintiffs and a son of the Late Lukwago Antwani who a brother to the plaintiffs' fathers and a beneficiary in the estate of the Late Yakobo Mugenzi was. He further contends that he is not a trespasser but rather an honest purchaser of an interest in land and prayed that the suit be dismissed with costs which the Trial Magistrate found in his favour, thus this Appeal.

- 10 The Appellant filed this Appeal on the following grounds. - 1. That the learned trial Magistrate erred in law and fact when, in evaluating the evidence, he failed to consider and ignored the evidence of the appellants and hereby came to a wrong conclusion that the Respondent had proved to the required standard that he owned the suit land. - 2. That the learned trial Magistrate erred in law and fact when, in the evaluation of evidence, failed to consider and or ignored the implication on the Respondent's purchase agreement (PE10) that the seller derived authority to sell from the plaintiffs who had not consented to the sale. - 3. That the learned trial Magistrate erred in law and fact when, in evaluating the 20 evidence, he failed to consider and/or ignored the evidence that Lukwago Godfrey, who had no letters of administration to the estate of the late Yacobo Mugenzi, could lawfully sell part of his to the Respondent. - 4. That the learned trial Magistrate erred in law and fact when he found that successors of the deceased plaintiffs did not have locus to prosecute and/or use the Respondent to enforce their property rights in the estate of the land Yakobo Mugenzi without letters of administration. - 5. That the learned trial Magistrate erred in law and fact when he failed to find that the evidence of the respondent and his witness departed from the Witness

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Statement of Defence.

6. The trial Magistrate erred in law and fact when he ignored major inconsistencies in the Respondents' case but found for the Respondents, thereby prejudicing the Appellants.

In their written submissions, the Appellants argued Grounds 1-6 jointly, whereas the Respondents argued Grounds 1, 2, and 3 jointly and 4 and 6 separately.

## *Representation*

The Appellant was represented by M/S Kasangaki and Co. Advocates, and the Respondents were represented by Akugizibwe & Co. Advocates. Both parties were directed to file Written Submissions, and both complied accordingly.

### 10 *Appellant's Submissions*

## *Ground 1-6*

The Appellants submitted that the gist of the appeal is the evaluation of evidence on record. They led evidence that the suit land forms part of the estate of the late Yakobo Mugenzi and that the Respondent illegally trespassed on it.

The appellants submitted that they discovered from the pleadings of the Respondent that he had illegally purchased the suit land from a one Lukwago Godfrey purporting to have inherited the suit land from a one Lukwago Antwani and when the rumours of the intended sale begun circulating Mzee Kamanyire Aloysious and Matovu Addidas begun running radio announcements cautioning any person from transacting on family land of

20 the late Yakobo Mugenzi.

They further submitted that the agreement executed during the said transaction was never signed by either a neighbour to the suit land or any direct beneficiary to the estate of the late Yakobo Mugenzi but was instead witnessed by Mugisha Antwani a brother to Lukwago Godfrey.

The Appellants submitted that the estate of the Late Yakobo Mugenzi has never been distributed and the Respondent could not have dealt in the same lawfully and could not by lawful means acquire a legitimate interest in the said estate.

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They further submitted that Lukwago Antwani, the son of the late Yakobo Mugenzi, is supposed to benefit from the estate but only after formal distribution.

Additionally, they submitted that there are no physical boundary marks/demarcations dividing the land of the late Yakobo Mugenzi to its beneficiaries.

In the submissions, they referred to PW2, who said during cross-examination that Aloysius Kamanyire was the late Yakobo's heir. PW3 testified that he had been an immediate neighbour of the Appellants' land since 1954 and that by the time he died, the late Yakobo had not distributed his land to his children and would harmoniously use his land with his children undivided.

10 They submitted that the Respondent and his witnesses gave contradicting evidence that indeed confirms that he trespasses on the suit land and that they also corroborated the Appellant's claim that the Respondent illegally purchased the suit land aware that the seller had no interest in selling, says DW1 the ten chairperson who drew the agreement to sale in cross-examination said that he did not know if Yakobo Mugenzi distributed his land and that no child of Yakobo Mugenzi signed the agreement and also admitted ever having consulted Aloysious Kamanyire before facilitating the sale of the suit land and also admitted that Aloysius Kamanyire had authority over the suit land as the child of yakobo Antwani. DW2 testified falsely that Kamanyire Aloysious signed the purchase agreement as a witness and an elder. Still, he could not recall his witness number and 20 conceded that Yakobos estate has no letters of administration.

The appellants submitted that Lukwago Godfrey failed to prove that he was indeed given the suit land by gift intervivos, and his allegations and evidence on this fact fell far short of the legal basis for granting a gift intervivos as per the case of Joy Mukobe V Willy Wambugu HCCA No.55 of 2005.

PW4, the respondent could not show to court a copy of the tenancy agreement though he alleged in his evidence that he started by renting the suit land. He admitted that he never saw any document purporting to gift the suit land to Lukwago Godfrey before buying the said land from him and that he contradicted himself at a locus in quo when he stated that he knew Kamanyire Aloysious and had consulted him about the affairs of the

30 suit land.

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# *Respondents Submissions*

# *Ground 4*

The Respondents submitted that the Appellants sued in the capacities of Administrators of the estates of their respective late fathers but not the estate of the late Yakobo Mugenzi, their grandfather, nor in the capacity of Administrators of the estate of the late Lukwago Antwani, a brother to the initial plaintiffs.

The respondents submitted that the question is why didn't the Appellants acquire letters of Administration in respect of the estate of their grandfather but rather acquired the letters of Administration in respect to their late father's estate and that this could be that

10 there was no estate of the late Yakobo Mugenzi to administered since it had already been distributed among the children

They further submitted that it is not true that after the death of Yakobo Mugenzi, his children continued utilizing his land as a family with the freedom to grow crops and to build on any part of the land of their choice and that the said land was never distributed to individual family members as evidence from locus clearly showed to the contrary and that each of the children of the late Yakobo Mugenzi utilized and occupied specific and well-defined parcels of land 1970 and upon their death the same passed on to their respective children

## *Ground 1, 2 and 3*

20 The respondent submitted that he rightly acquired interest in the suit land.

It was the respondent's submission that the respondent's purchase agreement was fully witnessed by the relevant authorities and that when the chairperson inquired from the late Aloysius Kamanyire, who did not object to the sale but just demanded that he would sign the agreement only if Lukwago Godfrey bought him a goat because he had abused him sometimes back.

The respondents submitted that prior to the purchase of the suit land, the respondents rented the same from the seller and occupied the suit land for over 2 years. After he bought it he even started constructing up his house when the plaintiff started objecting to the sale and that this is only an after-thoughts of the Appellants.

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They submitted that Antwani Lukwago had a specific and distinguished piece of land which he inherited from his late father Yakobo Mugenzi, and so are his late brothers, who, therefore, passed on his children Lukwago Godfrey and his siblings who did not object to the sale. Therefore Lukwago Godfrey, as a child beneficiary of the estate of his late father, had a right to sell the suit land. The sale was blessed by his other siblings' consent. So, the Appellant's claims cannot be legally maintained given the facts that they are neither the children of the late Antwani Lukwago nor the Administrators of his estate.

## *Ground 6*

The respondents submitted on the principle governing inconsistencies and 10 contradictions in a witness's evidence, as in the case of *Lovinsa Nankya V Nsibambi [1980] HCB 81*. They contended that the Appellants generally submitted and did not clearly point out the alleged inconsistencies, making it hard for the respondents to identify them.

PW3 confirmed that the suit land was part of the land of Antawani Lukwago and informed the court that he had never heard of a dispute between the children of Yakobo Mugenzi over who used what portion of the land.

The respondents submit that the Appellant did not contest or disprove the sale because he did not object to the purchase but rather demanded that he would sign the agreement only if Lukwago Godfrey bought for him a goat because he had abused him sometime 20 back. They further submit that the alleged inconsistencies, if they were present, would be minor and could not change the findings of the learned trial Magistrate; thus, the trial Magistrate cannot be faulted on this ground.

# *Analysis of Court*

It is the duty of the first Appellate court to review and re-evaluate the evidence before the trial court and reach its own conclusions, considering that the Appellant court did not have the opportunity to hear and see the witnesses testify. In **Peters v Sunday Post Limited [1958] 1 EA,** on page 429, the Court of Appeal for East Africa held that.

> *"An appellant court has indeed jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence* *should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellant court might itself have come to a different conclusion".*

The Supreme Court of Uganda reaffirmed this principle in **Kifamunte Henry v Uganda S. C. C. A. No.10 of 1997** For purposes of consistency, I will handle the grounds of appeal in the order they are presented when they stated that the duty of the first appellant is;

"*To review the evidence of the case and reconsider the materials before the trial judge. The appellant court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it".*

- 10 I have extensively reviewed the entire record of the lower court and the Appellant and Respondent's written Submissions. Regarding the 6 grounds raised by the Appellants, this court will resolve them in 3 main issues. - *1. Whether the Appellants had locus to institute and maintain the suit* - *2. Whether the Defendant is a trespasser on the suit land* - *3. What remedies are available to the parties?*

### *Issue 1*

Whether the Appellant had the locus to institute and maintain the suit.

Firstly, the issue of *locus standi* is a pure point of law that can properly be raised as a preliminary objection. In determining such a point, the court is perfectly entitled to look 20 at the pleadings and other relevant matter in its records **(see** *Mukisa Biscuit v. West End Distributors [1969] EA 696* **and** *Omondi v. National Bank of Kenya Ltd and others, [2001] 1 EA 177***).**

According to Black's Law Dictionary, 9th Edition, locus standi refers to the right to bring an action or to be given the forum to bring action. To say that a person has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.

In **Dima Domnic Poro V Inyani Godfrey and Anor HCCA No.17 of 2016**, Hon Justice Stephen Mubiru, whilst commenting about standing, noted as follows *"For any person to*

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*otherwise have locus standi, such person must have sufficient interest of the subject matter of a suit which is constituted by having an adequate interest not merely a technical one in the subject matter of the suit, the interest must not be too far removed, the interest must be actual, not abstract or academic and the interest must be current not hypothetical."*

In determining locus standi, the court held in *Kikungwe Issa and Others V Standard Chartered Bank Investment Corporation and Others HCCS 409 of 2004* that the Applicant must show that he/she is a citizen of Uganda, has sufficient Interest in the matter and must not be a mere busybody, that the issues raised for decision are 10 sufficiently grave and of sufficient public importance and that they involve a high constitutional principle.

Furthermore, the locus case of *Israel Kabwa V Martin Banoba Mugisha SCCA No. 52/1995* is to the effect that a beneficiary of the state of an intestate has locus to sue in his own name to protect the estate of intestate for his own benefit, without having to first obtain letters of administration. Tsekooko, JSC stated that the respondent therein, Banoba, had proved that he had developments thereon and had sufficient interest to give him locus in that case even lo letters of administration had been obtained.

# *In the circumstances of the present case, did the Appellants have sufficient interest in the suit land?*

20 The Appellants' case in the suit in the lower court was that they are grandchildren and beneficiaries of the estate of the Late Yakobo Mugenzi, the original customary owner of land located at Kisarabwire Cell, Kihuuba Ward, Karoubi Division, Masindi Municipality, Masindi District.

The Appellants applied and obtained letters of administration over the estate of their respective fathers and not of their grandfather, and in the judgment of the learned trial Chief Magistrate, this fell outside the ambit of the decision of Israel Kabwa's case. However, according to my findings, the Appellants are beneficiaries of the estate as grandchildren of the late Yakobo. Furthermore, just as it is in the Kabwa case, these appellants have utilized this land as family property to cultivate food and, therefore, have 30 an interest in the suit land. In addition, the Appellants did not need letters of

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administration of the late Yakobo's estate to bring up the suit because they are beneficiaries of this estate.

Therefore, I disagree with the lower court findings and find that the Appellants have a locus to file this suit.

#### *Issue 2*

#### *Whether the Defendant is a trespasser on the suit land.*

According to the Supreme Court case of Justine E. M. N. Lutaaya vs. Sterling Civil Engineering Co., SCCA No.011 of 2002, trespass to land occurs *"when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with* 10 *another person's lawful possession of that land."* The court, in that case, added that the tort is committed not against the land but against the person who is in actual or constructive possession of the land. To succeed in this case, the Court of Appeal in *Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CA No. 4 of 1987* observed that one must prove.

- *That the disputed land belonged to the Plaintiff* - *That the Defendant had entered upon it, and* - *That entry was unlawful in that it was made without permission or that Defendant had no claim or right, or interest in the disputed land.*

The Appellants led evidence that the suit land forms part of the estate of the late Yakobo 20 Mugenzi and the Respondent illegally trespassed on it. PW1 Bukenya Taddeo testified in chief that he is the biological son and the administrator of the estate of the late Matovu Addidas. He testified that he and the 1st and 2nd Appellants are grandchildren and beneficiaries of the estate, and they have utilized the same as a family to cultivate food or cash crops. They later discovered from the pleadings of the Respondent that he had illegally purchased the suit land from one Lukwago Antwani. Still, the agreement executed during the said transaction was never signed by either a neighbour to the suit land or any direct beneficiary to the estate of the late Yakobo Mugenzi.

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The appellants further submitted that the estate of the late Yakobo Mugenzi has never been distributed, and the Respondent could not have acquired a legitimate interest in the said estate In addition, PW1 stated that there are no physical boundary marks/demarcations dividing the land to its beneficiaries.

PW2 Rukurato Ladislao testified knowing two appellants. He said that 11 children survived the late Yakobo Mugenzi, but by the time of the testimony, they had all died. He said that he grew up seeing the late Yakobo and his children utilizing their undivided land for growing food and cash crops. In cross-examination, he said that Aloysious Kamanyire was the heir of the estate.

10 PW3 Byembandwa Yusef (PW3) testified that by the time of the late Yakobo Mugenzi's death, he had not distributed his land to his children and would harmoniously use his land with his children undivided.

On the other hand, DW1 told the trial court that before he endorsed the Respondent purchase agreement, he inquired from the siblings of Godfrey Lukwago, who didn't object to the sale, and that he further inquired from the late Aloysius Kamanyire, who informed him that he did not object to the sale but just demanded a goat because he had abused him sometime back.

The respondents also submitted that the respondent rented the same from the seller and occupied the suit land for over 2 years. They further submitted that Antwani Lukwago had 20 a specific and distinguished piece of land which he inherited from his late father Yakobo Mugenzi, and so are his late brothers, who, therefore, passed on to his children.

Looking at the file and entire evidence on record, the estate of Yakobo Mugenzi was never distributed in that for the distribution to happen there was a requirement for issuing letters before the transaction occurred. No letters of administration were obtained with respect to the estate of the late Yakobo Mugenzi, and therefore, the transaction between Lukwago Godfrey and the Respondent was illegal because the seller is only a beneficiary to the estate, which has not been distributed because the estate has no administrator who could lawfully have distributed his estate.

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Therefore, I disagree with the lower court's ruling that the defendant lawfully purchased the suit land from the rightful owner. According to these courts' findings, the claims of trespass arose because the purchase was illegal and unlawful. The seller of the suit land had no right to transact since he was only a beneficiary, and none of the beneficiaries could lawfully sell. This appeal, therefore, succeeds; I enter judgment for the appellants.

## *Issue 3*

## *What are the remedies available to the parties?*

The submissions show that the following orders are just and fair on the premises.

1. This Appeal has merit and is allowed with the other prayers as have been made by

- 2. The decision of the lower court is reversed. - 3. Since costs follow the event, I award costs to the respondents both here and in the court below.

## **It is so ordered.**

# **Dated and delivered on this 30th Day of April 2024.**

**…………………………………**

**Isah Serunkuma**

20 **JUDGE**