Hamurwa Town Council and Others v Sanyu (Civil Appeal 191 of 2020) [2023] UGCA 299 (1 November 2023)

Full Case Text

## 5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL AT UGANDA AT I(AMPALA CIVIL APPEAL NO. 191 OF 2O2O

(Coram: Kibeedi, Gashirabake and Kihika, JJAI

## 1. HAMURWA TOWN COUNCIL

#### 2. I(ABALE DISTRICT LAND BOARD 10

## 3. RUBANDA DISTRICT LAND BOARD: : : : : : : : : : : :APPELLANTS

#### VERSUS

#### SANYU ROMINA MARY: : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kabale before Kazibwe-Kauumi, J. in Ciuil Suit No. 16 of 2013 dated 25th July,2019) 15

## JUDGMENT OF CHRISTOPHER GASHIRABAKE. JA

This appeal is from the judgment and orders of the High Court of Uganda at Kabale before Kazibwe-Kawumi, J, in Civil Suit No. 16 of 2OI3 dated 25tt July, 2OI9.

## Background

The respondent and two others, then the administrators of the estate of the late Simeo Ruritwa ("the administrators"), sued the appellants and two others, for a declaration that they were the lawful owners of unregistered land measuring 17 hectares (the large parcel of land), then situated at Karukara Trading Centre, Hamurwa Town Council, Hamurwa Parish, Hamurwa Sub-Count5r,

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5 Rubanda County, Kabale District. The large parcel of land included a portion, on which the local authorities had set up a market ("o1d market land"). The current size of Karukara Market also includes land that the local authorities rented from the administrators in 2OlO as they sought to expand the old market. There is no contest that the additional land rented in 2OlO belongs to the administrators, and the dispute between the parties relates solely to the ownership of the old market land. 10

In addition to the declaration referred to earlier, the administrators also sought an order to compel the 3'd appellant to issue them \Mith a certificate of title for the large parcel of land with the old market land included, a pefinanent injunction to restrain the lst 21d Jrd appellants from interfering with their possession of the old market land, special and general damages for trespass, mesne profits, interest and costs of the suit. 15

An outline of the facts of the case is that until the institution of the suit in the trial Court, the l"t appellant managed a market, within its jurisdiction, at Karukara Trading Centre. The administrators averred, in their plaint, that the old market land was part of the large parcel of land in the possession of the late Simeo Ruritwa prior to his death, and to which they succeeded after his death. The late Ruritwa had, ort 22"d June, 1973, been granted a lease offer for the large parcel of land by the Uganda Land Commission, then the controlling authority. 20 25

- 5 The administrators further averred that the late Ruritwa, subsequent to obtaining the lease for and taking possession of the large parcel of land, allowed Kabale District Local Government, then responsible 1ocal authority to operate a market thereon but informed the local authority that if it was "interested in - malntalnlng the market, the proprietor of tlrc land would let out the portlon belng used for that purpose on such term.s qs to rent, nature of stntctures to be erected, o,ctuo,l user or othenolse Grs utould be agreed from time to tlme". The administrators' pleading did not indicate that the late Ruritwa ever collected rent from the local authority in accordance with the said agreement. However, in 2OlO, the administrators demanded and received rent for the extra land in the agreement termed "unbuilt land" from Kabale District Local Government ("KDLG") as the local authority overseeing the management of the old market. It appears that KDLG continued to pay rent from then onwards. 10 15 20

Meanwhile from 2OlO, the administrators embarked on the process of obtaining a certificate of title for the large parcel of land from the 2"d appellant. The latter granted them a freehold offer and on 9th July, 2010 authorised a survey of the land. However, ofl lTth 2s December,2Ol2 the l"t appellant's Town Clerk wrote a letter to the 2"a appellant requesting it to halt the processing of the certificate of title for the administrators because the survey for the administrators' large parcel of land had unlawfully incorporated the old market land which did not belong to the administrators. 30 ., Subsequently, in June, 2013, the local authorities allegedly fenced

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- 5 off the old market land an act the administrators alleged interfered \ rith their possession of the old market land. The local authorities also stopped paylng rent for the old market land to the administrators. - Due to these developments, the administrators filed the suit in the trial Court to protect their interests in the old market land and also to cause the 3.a respondent to issue them a certificate of title for the large parcel of land.

The 1"t and 2"d appellants and KDLG, then the responsible local authorities in the area in which the old market land was situated, filed a defence in which they denied the administrators' claims. They averred that the old market land measuring approximately 1 acre was Government land on which the local authorities had set up and operated a market since 1953. They further averred that the old market land was not part of the large parcel of land for which the late Ruritwa had obtained a lease in 1973. They claimed that the late Ruritwa's land had subsequently become registered as Plot 6, Block lL7 and that its cadastral map excluded the old market land. They also averred that the old market land was, since 1953, occupied and developed by the local authorities without objections from the late Ruritwa or indeed from the administrators shortly after his death. 15 20 25

The 1"t and 2"a appellants and KDLG noted that the administrators had applied to be issued with a certificate of title for certain unregistered land neighbouring the old market land, but averred

- 5 that in that process they had attempted to encroach on the old market land. They therefore contended that the administrators' attempt to encroach on the old market land was motivated by fraud and it was upon learning of this fraud that the local authorities had halted the process of registration of the administrators' certificate of - title. The local authorities prayed for dismissal of the administrators' suit. 10

The local authorities also counter-claimed against the administrators for a declaration that all steps the latter had taken to obtain a certificate of title for the large parcel of land (with the old market land included) were unlawful and void at law, for a permanent injunction restraining the administrators from taking any further steps to register the said land in their narnes, costs of the counter-claim and general damages.

After hearing the evidence, the learned trial Judge rendered judgment in favour of the respondent, at the time the only surviving administrator of the estate of the late Ruritwa. The trial Judge found that the respondent is the owrrer of the large parcel of land measuring 17 hectares and that the old market land was part of that land. He therefore ordered the 3'd appellant to process a certificate of title for the respondent for the large parcel of land. The learned trial Judge also ordered the 1"t appellant to pay to the respondent mesne profits of Ug. Shs. 77,760,000|=, and general damages of Ug. Shs. 20,000,000/=, with interest of 8oh on the 20 25

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5 respective awards, from the date of judgment till payment in full. The 1"t appellant was also ordered to pay the costs of the suit.

The appellants were aggrieved with the judgment and orders of the learned trial Judge and now appeal to this Court on the following grounds:

"7) The learned trlal Judge erred ln law and fact uhen he falled to m.q.ke a declslon/findtng ln respect of the counterclalm q,s ag alnst the re spondent. 10

- 2) The learned tttal Judge erred, ln laut and Jact uhen he held that the 7\* appellant ur<z,s not a bonafide occupa;nt of a portlon of land knoun as the old market at Kattkara Tradtng Centre. - 3) The learned trlal Judge erred. ln lo;ut and. fact uhen he relled on hls no,ked ulslon and, slght to conclude that the respondent uq.s the ouner oJ 77 hectares of land, compd.slng the portlon on uhlch the old market ls sltuated ulthout a supportlng sutley or \*pert report to confi.rm the extent of the usage of the land,. - 4) The learned tfial Judge erred. ln laut and, Jact uthen he sttfled the ttghts oj the appellants to tender ln the deed plans and cada,stral sheets Jor Block 777 Plot 6 uthtch u)ere the ba.sls of thelr defence and counterclqlm and get proceeded to make flndlngs ba.sed on them. - s) The leqrned. trlal Judge m.anifested bto.s and thls preuented hlm from reachlng the correct, decislon.

- 5 6) The learned tttal Judge erred ln laut and fact ln holdtng thot the falsehoods and mlsrepresentatlons occa"sloned bg the 7d-3rd respondents dld not amount to fraud. - 7) The learned trtal Judge Jalled tD properlg eualuate the euldence before him and consequentlg reached a utrong declslon.'

The appellants prayed this Court to allow the appeal and set aside the judgment and orders of the trial Court.

## Representation

At the hearing, Mr. TWinomugisha Mugisha and Ms. Asiimwe Fiona Bamanya, both State Attorneys in the Attorney General's Chambers appeared for the appellants. Mr. Benson T\rsasirwe, appeared for the respondent. 15

Written submissions were filed for the respective parties.

## Analysis

- I have carefully considered the court record and other relevant materials like the submissions of counsel, and authorities cited. This is a first appeal and it is now well-established that while handling first appeals, this Court shall reappraise the evidence and reach its own conclusions on all issues under determination. This duty is underscored by Rule 30 (1) (a) of the Rules of this Court 20 25 - which provides that on a first appeal from a decision of the High Court in exercise of its original jurisdiction, this Court may reappraise the evidence and make inferences of fact. The duty was also explained in the case of Uganda vs. George Wilson Ssimbwa,

t M

5 Supreme Court Criminal Appeal No. 37 of 1993 (unreported) where it was stated that:

> nThis belng the flrst appellate court ln thls caste, lt ls our dutg to gltn the evld,ence on record a,tt a whole that Jresh and exhaustlue scttttlng uhtch the appellant ls entltled to expe&, ond drau) our outn conclusions oJ Jact. D

The above principles sha1l be applied in this judgment.

I will now proceed to consider the grounds of appeal, in the following manner; grounds 2, 3, 4 and 7 jointly, followed by grounds 1 and 6 jointly. Ground 5 was abandoned.

# 1s Ground 2

## Appellant's submissions

20 The appellants, in ground 2, complained that the learned trial Judge erred in law and fact when he held that the 1"t appellant was not a bonafide occupa.nt of a portion of land known as the old market at Karukara Trading Centre. Counsel for the appellant relied on Section 1 (e) and Section 29 l2l (b) of the Land Act, Cap. 227 which define a bonafide occupant to include a person who before the coming into force of the 1995 Constitution had been settled on the land by the Government, which may include a local authority. Counsel also cited the cases of Kampala District Land Board and Anor vs. National Housing and Construction Company l2OO5l 2 EA 69 and l(ampala District Land Board and Another vs. Venansio Babweyaka and Others, Supreme Court Civil Appeal No. 02 of 2OO7 (unreported) which establish the principle that a 25

8 aW 5 person who had been in possession of land for twelve yea-rs at the time of the coming into force of the 1995 Constitution qualifies as a bonafide occupant.

Counsel then submitted that the evidence of DWl Tom Batoraine, a longtime resident of Humurwa Town Council, that of DW2 Richard Apollo Rutaro, a District Staff Surveyor, and that of DW3 T\rgume Robina established that the 1"t appellant had been in possession of the old market land since 1953 and had developed it with a market shed in 1975 and a water house in 2008, and that at all times no one claimed any interest in the suit land until the respondents filed their suit in the trial Court. 10 15

Counsel for the appellants further submitted that the 1st appellant had been in exclusive long possession of the old market land while neither the respondent nor her predecessor in title had ever been in possession of the old market land. Further, that the 1"t appellant had co-existed with the Late Ruritwa as a neighbour of the old market land and upon his demise, the 1st appellant had constructed

a water house on the old market land without any complaint from the respondent.

The above circumstances, according to counsel for the appellants, qualified the l"t appellant as a bonalide occupant andlor lawful owner of the suit land. 25

#### Respondent's submissions

9 q@d

- 5 In reply, counsel for the respondent submitted that the 1st appellant could not qualify as a bonafide occupant on the old market land considering the circumstances of the case. Firstly, counsel for the respondent submitted that the old market land was unregistered land and yet under Section 29 l2l of the Land Act, Cap. 227, a person could only be a bonafide occupant on registered land. Secondly, counsel submitted that the status of a bonalide occupant was reserved for persons who lawfully carne into possession of the land and not for persons who gained possession as tenants or licencees as the l"t appellant was for the old market land. 10 - Secondly, according to counsel for the respondent, the evidence adduced by the respondent showed that the l"t appellant occupied the suit land as a tenant of the respondent, and pursuant to a tenancy agreement executed between Kabale District Local Government as a representative of the appellants and the respondent. Thus, the 1"t appellant could not claim that it was a bonafide occupant of the old market land and not a tenant. 15 20

Thirdly, counsel for the respondent submitted that the respondent's evidence established that the appellants were settled on the old market land by the late Ruritwa and not by Government, and that as the learned trial Judge correctly held, the appellants failed to adduce evidence to prove which Government settled them on the old market land.

In light of the above submissions, counsel for the respondent supported the learned triat Judge's finding that the appellants were

10 eery

5 not bonafide occupants on the old market land and prayed that ground 2 fails.

#### Ground 3

#### Appellants' submissions

The appellants alleged in ground 3 that the learned trial Judge erred in law and fact when he relied on his naked vision and sight to conclude that the respondent was the owner of L7 hectares of land, comprising the portion on which the market is situated without a supporting survey or expert report to confirm the boundaries of the disputed land. Counsel for the appellants made two points in his submissions in support of ground 3. First, counsel for the appellants submitted that the learned trial Judge, in arriving at his decision, wrongly overlooked evidence of Cadastral Sheet No. 93l2l4lSW 14 without any reasonable basis. The Cadastral Sheet indicated that the Late Ruritwa's land which the respondent had inherited was comprised in Plot No. 6 Block 117 and did not include the old market land. 10 15 20

Secondly, counsel for the appellants submitted that the learned triat Judge improperly appraised the evidence of DW2 which showed that the respondents' surveyors produced a survey report that fraudulently indicated that the old market land was part of the larger parcel of land. Counsel for the appellants referred to the evidence of DW2 who testified that he had notified the respondent's surveyors about the wrongful inclusion of the old market land as part of the larger parcel of land but they had not taken any action,

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5 and that instead the respondents had chosen not to tender their surveyor's report in evidence.

According to counsel for the appellants, considering the circumstances of the respondent concealing their surveyor's report, the learned trial Judge's decision to reject the Cadastral Sheet facilitated the respondent's fraudulent strategr not to produce the report made by their surveyors and avoid the trial Court from reaching the inevitable conclusion that the attempt to survey the old market land which was in possession of the l"t appellant was an illegality.

#### Respondent's submissions 15

Counsel for the respondent made no submissions in relation to ground 3.

#### Ground 4

#### Appellants' submissions

Ground 4 faults the learned trial Judge's handling of a cadastral map for Block 117 Plot 6, that the appellants sought to tender in evidence, in support of their case that the old market land was not part of the larger parcel of land owned by the respondent. Counsel for the appellants submitted that, according to the cadastral Dap, the larger parcel of land was comprised in Block 117 Plot 6 and that the boundaries of that land did not encompass the old market land. Yet, according to counsel, the learned trial Judge prevented the 20 25

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5 appellants from tendering the cadastral map as an exhibit without giving any reasons for doing so.

Furthermore, counsel for the appellants submitted that while the learned trial Judge in one breath prevented the admission of the cadastral map in evidence, in the other breath, he based part of his judgment on the cadastral map. The learned trial Judge stated, for example, that the Late Ruritwa excluded the old market land from the survey for Block 117 Plot 6. Counsel faulted this finding by the learned trial Judge as not having been backed by any evidence and also as having been based on a cadastral map that the learned trial Judge did not allow in evidence.

Counsel for the appellants also submitted that the trial Judge, in refusing to admit the cadastral map in evidence, denied the appellants their right to lay cogent evidence in support of their case and was an error.

#### 20 Respondent's submissions

In reply, counsel for the respondent denied that the learned trial Judge prevented the appellants from tendering the cadastral map in evidence as alleged in the appellants' submissions. He submitted that according to the record of the trial proceedings, the appellants made no attempt to have the said cadastral map tendered in evidence and therefore cannot argue that the learned trial Judge unreasonably stifled their right to tender the said map in evidence. Counsel for the respondent prayed that ground 4 also fails.

13 (+br<f

# s Ground,7

Counsel for the appellants made no submissions on ground 7.

### Decision on grounds 2, 3, 4 and,7

I have carefully considered the respective counsel's submissions in relation to grounds 2, 3,4 and 7, which I shall consider together, as the four grounds are concerned with the question of whether the learned trial Judge erred when he found that the respondent was the lawful owner of the old market land, and that that land formed part of the larger parcel of land belonging to the estate of the Late Ruritwa.

- 15 I wish to observe at the outset that, as counsel for the respondent rightly submitted, the question of the lawful owner of the old market land could appropriately be addressed under issue two, as framed by the trial Court, namely: - 20

## atrIhether the land measuring approximately one acre at Hamurwa Town Council on which the "old market" is situate belongs to the plaintiff or the defendant (sicfD

The respondent and her co-administrators averred, in their plaint, that the old market land belonged to tleem. They pleaded at paragraph 4 (b) of their plaint that:

6In thelr capaclty and. as the onlg surahing beneficlarles of the estate of the sald. late Slmeo Rurltua, the platnttffs hann at all materlal tlmes been the beneflctal ouners and occupants of a parcel oJ land m;ea.suttng about 77 hectares sltuate at Ko;ttrkara 1rc7, Hamurua Pattsh" Hamurua. Sub-Countg, Kabale Dlstrlct, sald 25

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land now within the boundaries of Hamurwa Town Council, the $2^{nd}$ defendant, following the creation and establishment of the said Town Council, the said plaintiffs own developments on the land, including five (5) houses."

The respondent and her co-administrators further pleaded at paragraph 4 (d) and (e) of their plaint as follows: $\frac{1}{2}$ $10$

$\mathbf{r} = \frac{1}{\sqrt{2}}$

$\mathsf{S}$

$\hat{\mathcal{T}}$

- $``d)$ upon request of Kigezi/Kabale At the time, **District** the corporate predecessor of the $1st$ Administration, defendant and in his public-spirited nature, the deceased had allowed to be operated on a part of his land measuring $1.284$ acres (0.520 hectares) a general merchandise public market, understanding that should the **District** $upon$ the Administration be interested in maintaining the said market, the proprietors of the land would let out the portion being used for that purpose on such terms as to rent, nature of structures to be erected, actual user or otherwise as would be agreed from time to time. - Upon inheriting the land, the plaintiffs indicated to the e) concerned local authorities that they were willing to continue to avail the said portion for the same purpose and on the same terms. It was never at any one time suggested that the deceased and/or his successors in title had surrendered ownership of the portion on which the said market was situate."

The case for the respondent was therefore that the old market land, approximately 1 acre, was part of the larger parcel of land 30 measuring 17 hectares which she and her co-administrators had inherited from their late father Simeo Ruritwa, who owned the land

$\sim$

- prior to his demise. It was further the case for the respondent and $\mathsf{S}$ her co-administrators that the Late Ruritwa had permitted the local the authorities by Kigezi/Kabale District represented Administration to set up and operate a market on his land, but only as his tenants. - On the other hand, the appellants denied that the old market land $10$ was part of the land belonging to the estate of the Late Ruritwa, and averred that the land was Government land. The appellants pleaded at para 4 of their written statement of defence as follows:

$25$

- $64.$ In alternative, but without prejudice to the foregoing denials, the defendants shall aver and contend as follows; - $\alpha$ ) The land measuring approximately one acre situated at Karukara, Hamurwa Sub County, Hamurwa Town Council, about 17 kilometres along Kabale-Kisoro Road is Government land. - $\boldsymbol{b)}$ The defendants have been exclusively occupying the said land as a market area/Government land since 1953. - The lease offer granted to late Simeo Ruritwa (father of $\boldsymbol{c})$ the plaintiffs) on the $22^{nd}$ June, 1973 vide Ref. KB/76/2/11 authorised by the District Land Board Kabale District under Ref. LWK/349F AD I/S NO. C/1/0292 did not include the market area/ Government land. - The late Simeo Rutirwa (father of the plaintiffs) $d)$ proceeded to Register his interest under Plot 6, Block 117 which $does$ $not$ include the market

$\Lambda$ ay

$\mathcal{L} = \mathcal{L}$ 5 area/@tarnment land. (An extract from the mapping reglstry cadastral sheet AIo. 93/2fi4/SW4 is hereto attached as anne;xture'A').'

The appellants'case was that: 1) the old market land was Government land in possession of the local authorities, and on which they operated a market since 1953; 2l the old market land was not part of the larger parcel measuring 17 hectares which belonged to the estate of the Late Ruritwa; and 3) In relation to the old market land, the local authorities had never been tenants of the late Ruritwa or his successors, the respondent and her coadministrators. 10 15

I shall now proceed to reappraise the evidence adduced in support of the respective parties' cases. The respondent testifying as PW1 stated as follows:

sland at Ko;tztkara. Mg father told us that land at Kattkara Market ls our land,. That he gale lt tn haernmcnt on understandtng theg compensated us elther ln cash/klnd (exchange tt ulth other plece of land).

> Ka:rttkara ls tn Ndoruta Countg, Hamuruta Sub-Countg (nout Toutn Councll) Kabale Dtstrtct.

I am not sure uthen he gaue out the land. He told me durlng mg school ltfe, I haue aluags knoun it is ours. 25

On the dlsputed plece there ls a general mrerchandlse market.

The market ls managed. bg Hamurwq. Toutn Councll,

t7 clb{r,

5 As can be seen from the above passage, the respondent's evidence was that her father the late Ruritwa told her that he owned the larger parcel of land which included the old market land. The respondent also acknowledged that the local authorities, represented by the l"t appellant, were in possession of the old market land at the time of the filing of the administrators' suit, but she stated that the local authorities were occupying the old market land owing to the decision of their father to let it to the local authorities upon an "understanding" that the latter would compensate the former in cash/or kind for utilizing the old market land. 10 15

In my view, the respondent's evidence that her father had let the old market land to the loca-l authorities was difficult to veri\$r in the absence of contemporaneous documentary evidence supporting that assertions brought out in that evidence. Moreover, the respondent alleged to have received the communication from her father during her "school life" and thus the evidence is hearsay and not admissible unless it falls under any of the prescribed exceptions. Further, the reliability of her recollection may have been affected considering the substantial period of time that had passed between then and the time of her testimony in the trial Court. Lastly, letting out a market to local authorities is not like letting out one's shirt to a neighbour. There are established bureaucratic processes through which such a transaction goes before being concluded and the agreements executed. I would therefore find that the respondent's 20 25

5 claim that their father let the old market land to the local authorities was not proven.

I have also considered the submission of counsel for the respondent that the local authority's seeming acknowledgement of the administrators' ownership of the old market land proved that the said land belonged to the estate of the late Ruritwa. It appears that in 2010, the local authorities represented by Kabale District Local Government appeared to have accepted that the old market land was pa-rt of the land owned by the administrators, and this was communicated in an agreement 25th June, 2OlO at page 155 of the record. But the circumstances of the making of the agreement, as the analysis of the evidence will show, indicate that the local authorities were driven to that acceptance by the administrators' narrative that the old market land belonged to the estate of the late Ruritwa and not the local authorities' owrr independent investigation of the ownership of the suit land. 10 15 20

In her examination in chief, the respondent confirmed pushing this narrative, testifying that the administrators were, in 2OO9, approached by Kanyeihamba Jones, the Sub County Chief who sought to rent more land from them to expand the market, and her response was that:

## n?rom our dlscttssion, I a,sked him to flrst accept that the land. on the old msrket is ours. "

Subsequently, when Mr. Balaba the PAS, Kabale District, approached the administrators seeking to rent additional land from

t9 qbry

5 the respondent for continued to assert testimony was that: expansion ownership of the market, the respondent of the old market land. Her

uAfter sometime orts Mr. Balaba (PAS., Kabale Dtstrtct) came to Kannpala and I discrrssed with hlm. We said ute had no objection but theg rnust flrst acknoutledge that euen the then existlng ma.rket is our lqnd before we giue more so that theg rent lt as one piece. IIe said theg kneut it wrrs our land. We said the land, committee at the Sub-Countg can aerifg this.

We agreed to enter an agreement urith the Dlstrict so that theg rent the land for market.

I wcls; approached bg the Dlstrict (Kabale) not Hamuruta Toutn CounclL

## We concluded the agreement Annexture H7.u

20 25 It is clear that the local authorities' seeming acceptance that the administrators were the owners of the old market land was based on the assertions made by the respondent and not on any informed and independent investigation of ownership by the local authorities. I therefore do not consider, as counsel for the respondent asserts, that that acceptance was conclusive to establish the respondent's ownership of the old market land. The question of the ownership of the old market land can only be determined by considering all the available evidence.

I now move on to an overview of the evidence given for the appellants in relation to when the local authorities had gone into possession of the old market land. DWl Baturaine Tom testified

Cffi. T

5 that he had lived at Karukara for a very long time, and was therefore familiar \Mith the history surrounding the ownership of the old market land. He stated that old market was started in 1953. It will be noted that DWl was aged 75 years when he testified in 2OL8, meaning that he was just 10 years old in 1953 when the market was opened.

The appellants also sought to establish that the old market land was distinct from the land that was owned by the late Ruritwa. They pleaded in their written statement of defence as follows:

oc) The lease offer granted to late Sirneo Rurltwa (father of the platnttffs) on the 22nd June, 1973 aide Ref, I<8/76/2/11 authorlsed bg the Distrtct Land. Boqrd Kabale Dtstrtct und.er Ref. LWK/349F AD I/S ,vO. C/1/O292 dtd not lnclude the market area/ @vernmcnt land.

d) The late Simeo Rutirua (father of the plainttj/fs) proceeded to Register his interest und.er Plot 6, Block 777 whtch does not lnclud,e the market area,l@uernment lqnd. (An extract Jrom the mapplng reglstry cad,a.stral sheet No. 93/2/14/SW4 ts hereto qttached. os anne:xture 'A'). D

I must observe that the appellants attached a cadastral map to their pleadings, and based on it to claim that the late Ruritwa's land was comprised in Plot 6, Block ll7 , and that the said land did not include the old market 1and. However, I also observe that the cadastral map was not former4lly tendered in evidence as an exhibit. The only witness who spoke of the survey for Block 1 17 Plot 6 was DW2 Richard Apollo Rutaro and yet there was no attempt by 25 30

2t CnW

- 5 counsel for the appellants to tender the cadastral map through this witness. Therefore, it is surprising that appellants alleged in ground 4 that the learned trial Judge prevented the appellants from tendering the cadastral map in evidence yet their trial counsel made no effort to tender the map in evidence. Counsel for the respondent was therefore right when he submitted that the appellants made no attempt to tender the cadastral map in evidence and thus cannot in this appeal shift responsibility for their failure on the learned trial Judge. I would accordingly reject the allegations set out in ground 4. 10 - I would equally reject the appellants' assertion in ground 2 that the loca1 authorities were bonafide occupants on the old market land. Counsel for the appellants submitted that the local authorities were bonalide occupants of the old market land within the meaning of Sections 29 (2) (a) and/or (b) of the Land Act, Cap. 227. The provisions are reproduced below: 15 20

u(2) nBona flde occupantn meqns q. person uho beJore the comlng lnto force of the Consttttttion-

(a) had occupled and utilised. or deueloped ang land unchqllenged bg the reglstered ouner or agent of the registered owner tor twekte uears or more; or

(b) had been settled on land bg the huernment or an agent of the Governtnent, uthl.ch mag include a local authorltg. D

I agree with the submission of counsel for the respondent that one can only talk of being a bonalide occupant, under Section 29 (21 (a),

5 If helshe is occupying registered land, which is not the case for the old market land, which is situated on an unregistered parcel of land.

The appellants cannot also successfully claim to be bonafide occupants pursuant to Section 29 (2) (c) as that provision states that one is a bonafide occupant if he lshe was settled on land by Government or an agent of Government, which may include a local authority. Section 29 (3) also indicates that Section 29 (21 F) applies to registered land, and also appears to limit the persons who can be settled on land under Section 29 (21 (c) to natural persons pursuant to a formal resettlement scheme. Section 29 (3) provides as follows: 10 15

4(3) In the cqse of subsection (2)(bl

(a) the htrcr'nment shall compensate the registered ourner uthose land has been occupled. by persons resettled bg the @vernntent or an agent of the Gouentment under the resettlement schernel

(b) persons resettled on reglstered. land. mag be enabled to acquire reglstra.ble interest ln the land on which theg are settled.; and

(c) the Goaentrnent shall pag com{ren,satlon to the reglstered. outner tutthin liue years after the comlng into Jorce of thts Act."

However, the above analysis does not conclusively rule out the local authorities as lawful owners of the old market land as the ensuing analysis will show. It will be noted that the appellants pleaded that the old market land was Government land, and in their submissions and evidence made the following contentions: first, 25

23 cet

5 that the old market land is Government land on which the local authorities had set up and operated a market since 1953; second, that the old market land is Government land because the local authorities owned the land as bonafide occupants; and thirdly, that the old market land is Government land as the local authorities have been in possession of the land for a long period of time, that is, since 1953. 10

I have in my earlier analysis, ruled out the first and second contentions and only the third contention need to be considered. In relation to the third contention, collnsel for the appellants, in their submissions on ground 2, contended that the appellants were lawful owners of the old market land because they had been in unchallenged long possession of the old market land since 1953, which was about 60 years at the time the administrators filed their suit in 2OL3. However, I earlier found that the assertion that the market on the old market land was established in 1953 could not be verified and I therefore did not believe it. I therefore consider the appellants to have gone into possession of the old market land in 1953. The late Ruritwa had obtained a lease for land which allegedly included the old market land in 1973. 15 20

In addressing counsel for the appellants' submission on the local authorities' long possession of the old market land, I \MiIl begin by observing that under the Limitation Act, Cap. BO, a person can become the lawful owner of land because of his/her long possession of the land, despite the person having initially settled on the land as 25

c\*but' 5 a trespasser or squatter while the person lawfully belonged to someone else.

Section 5 of the Limitation Act, Cap. 80 provides as follows:

# " 5. Llmltation of actlons to recouer land.

No a.ctlon shall be brought bg ang person to recouer ang land, afier the explratton oJ tutehte gears Jrom the date on uthlch the rtght oJ actlon accnted, to hlrm or her or, lf tt first accnted, to som.e Pers.rn through uhom he or she clalms, to that person.u

15 Section 6 of the Limitation Act, Cap. 80 explains when the right of action accrues to the person seeking to recover the land, and relevant to this case, Section 6 (1) provides as follows:

46. Acctttal of rtght of a.ctlon ln case oJ present interests ln land.

(7) Where the person brlnglng an actlon to recouer land., or sonte person through uhom he or she clalms, has been ln possession o.,f the land, and has uthlle entitled to tt been dispossessed or dlscontlnued hls or her possession, the ttght oJ actl.on sho,ll be deerned to have accnted, ott the date oJ the dispossesslon or discontlnttantce. D

25 The effect of Sections 5 and 6 (1) is therefore as follows. An action for recovery of land by A, a person claiming as the previous lawful owner of the disputed land now in possession of another person B cannot be sustained after 12 or more years have passed from the date on which A's cause of action accrued. A's cause of action is deemed to have accrued, if A was previously in possession, on the day which A was dispossessed as owner of the land or when A

cfryt

- 5 discontinued possession of the land. Once it is proved that B, whether he/she originally c€une into possession as a squatter or trespasser, has been in possession of the land for more than 12 years, B \ rill be deemed to have obtained ownership of the land by possession under the Limitation Act, Cap. 80. - The UK House of Lords (UKHL) in the case of JA Pye (Oxford) Ltd and Others vs. Graham and Another l2OO2l 3 Att ER 865, discussed the meaning of provisions of the UK Limitation Act, 1980 that are identical to Sections 5 and 6 (1) of the Uganda Act. The UKHL (per Lord Browne-Wilkinson, who delivered the lead judgment) began by stating that: 10 15

6It ls to be noted that the right of action to recotar the lo;nd. is barred whenever 72 gears hante elapsed Jrom the time uhen ang right of action accnted,: it does not haue to be a period lmmedlatelg before actlon brought. In the case oJ unregistered land, on the expiration of the limitation period regulating the recouery of the land, the title of the paper owner is extlnguished.'

The UKHL then went on to further observe that in giving effect to the statutory provisions:

"the questlon is simply uhether the defendant squatter has dispossessed the paper ourner bg going into ordlnary possession of the land. for the requlslte period without the consent of the owner. D

I must clarify that the term "paper owner" is used to refer to the person who had a legitimate claim to the land before the squatter went into possession thereof. The paper owrrer is therefore the

person vested with the right to institute a claim for recovery of land 5 under the Limitation Act.

$\cdot$

The UKHL further stated that a squatter or trespasser will obtain ownership of land belonging to the paper owner if the former has been in possession of that land for a requisite period of time. For definition of possession, the UKHL cited with approval a statement from the case of **Powell v McFarlane (1977) 38 P&CR 452** where Slade J stated that:

$(1)$ In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi")."

In the present case, the administrators of the estate of the late Ruritwa conceded in their pleadings that the local authorities were in possession of the old market land at the time the administrators filed the suit in 2013. Assuming that the old market land was part 25 of the land for which the late Ruritwa obtained a lease in 1973, and that the local authorities went into possession of the old market land in the same year, it would mean that the local authorities were in possession of the old market land mostly unchallenged for a period of 40 years. I say mostly unchallenged because from 2009, 30

![](2__page_26_Picture_4.jpeg)

- 5 the administrators of the estate of the late Ruritwa had started claiming ownership of the old market land. But even making allowance for the 4-year period between 2OO9 to 2013, the local authorities had already been in possession of the old market land for about 36 years. - The fact of the local authorities' possession of the old market land for 36 years meant that the administrators of the estate of the late Ruritwa were under Sections 5 and 6 (1) of the Limitation Act, Cap.8O barred from bringing an action for recovery of the old market land from the loca-l authorities. It also means that consequently, and as counsel for the appellants rightly submitted, the local authorities, or more precisely, the 1"t appellant, had obtained ownership of the old market land by long possession and the respondent was barred from claiming the land. 10 15 - In view of the above analysis, I am unable to agree with the learned tria-l Judge's finding that the respondent proved on a balance of probabilities that the suit land belonged to the estate of the late Ruritwa. I would instead find for the appellants and uphold their pleading that the old market land was Government land by virtue of the long possession of the land by the area local authorities who had set up and developed a market thereon for more than 30 years by 2OO9 when the administrators of the estate of the late Ruritwa first laid claim to the land. 20 25

Grounds 2,3,4 andT are therefore resolved in accordance with the above analysis.

qbry

## Grounds 1 and 6

10 15 Grounds 1 and 6 relate to the appellants' counter-claim against the respondent. In ground 1, the appellants alleged that the learned trial Judge erred in law and fact when he failed to make a decision/finding in respect of the counterclaim as against the respondent. In ground 6, the appellants alleged that the learned trial Judge erred in law and fact in holding that the falsehoods and misrepresentations occasioned by the lst-\$rd respondents did not amount to fraud. According to the appellants' written statement of defence and counter-claim, the administrators of the estate of the late Ruritwa acted fraudulently while they tried to obtain a certificate of title for the large parcel of land.

I do not have to decide grounds 1 and 6 as my earlier finding that the old market land is Government land and does not belong to the estate of the late Ruritwa, resolves the underlying dispute in this matter.

For the reasons given above, I would allow the appeal, set aside the judgment and orders of the trial Court and substitute the following declarations and orders:

25 a) The old Karukara Market Land is Government land and does not form part of the larger parcel of land belonging to the estate of the late Ruritwa.

qasrn,

- 5 b) The 3.a appellant may process a certificate of title for the large parcel of land belonging to the respondent as the administrator of the estate of the late Ruritwa but the Old Karukara Market Land shall not be included in that certificate of title. - 10 c) The respondent is ordered pay the costs of the appeal and those in the Court below.

Dated at Kampala this I-t day of 2023.

a 15 pher Gashirabake

Justice of Appeal

# THE REPUBLIC OF UGANDA

# INTHEcoURToFAPPEALoFUGANDAATKAMPALA

[Coram: lluzamiru M. Kbeedi, Christopher Gashirabake & Oscar John Khika, JJA]

# CIUL APPEAL NO. 191 OF 2O2O

- 1. HAMURWATOWN COUNCIL I - 2, KABALE DISTRICT LAND BOARD I - 3. RUBANDA DISTRICT LAND BOARDI APPELLANTS

## VERSUS

SANYU ROMINA RESPONDENT

# JUDGMENT OF lRU MUT ULA KIBE DI. JA

Ihave had the advantage of reading in draft the judgment prepared by my Learned brother, Hon. Justice Christophjr Gashirabike, JA. I concur that this appeal should be resolved in the terms proPosed.

As Hon. Justice Oscar john Kihika, JA likewise agrees, the above appeal is allowed in the terms set out in the judgment of Hon. Justice Christopher Gashirabake, JA'

It is so ordered.

Dated at KamPala this \c- day of 2023

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO 191 OF 2020

### (Coram: Kibeedi, Gashirabake and Kihika, JJA)

### 1. HAMURWA TOWN COUNCIL

2. KABALE DISTRICT LAND BOARD

## 3. RUBANDA DISTRICT LAND BOARD:::::::::::::::::::::::APPELLANTS

### **VERUS**

### SANYU ROMINA MARY::::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda at Kabale before Kaibwe -*Kawumi, J in Civil Suit No. 16 of 2013 date 25th July 2019)*

## JUDGMENT OF OSCAR JOHN KIHIKA

I have had the benefit of reading in draft the judgement of my brother Justice Christohper Gashirabake J. A. I agree with the reasoning and conclusions therein and having nothing useful to add.

The appeal succeeds and judgment of the High Court is hereby set aside. I also agree with the declarations and orders proposed by my learned brother.

Costs of the of the appeal and those in the court below are to be paid by the respondent.

Dated at Kampala this .................................... OSCAR JOHN KIHIKA Justice of Appeal