Kabuzi v Kabugo & Another (Civil Appeal 20 of 2019) [2024] UGHC 77 (26 February 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MUBENDE

### CIVIL APPEAL NO.20 OF 2019

## (Arising from Mityana Civil Suit No.065 of 2016)

KABUZI SSEMWANGA GODFREY

APPELLANT

#### **VERSUS**

$\vdots \\$ KABUGO YUSUF

$\sim$ NAKAJUBI ESTHER

**RESPONDENTS**

# BEFORE HON JUSTICE MOSES KAZIBWE KAWUMI

#### JUDGMENT

General damages and costs had trespassed on their land, a Permanent injunction, Special damages, Respondents who filed the suit sought a declaration that the Magistrate Grade 1 at Mityana Court delivered on 11<sup>th</sup> June 2016. The This judgment arises from an appeal against the judgment of Appellant the

#### Background.

Mohammed Jlagwe who was introduced to them as the Landlord Respondents sought to purchase registrable interest from a one land were in the same location. In a letter dated 16<sup>th</sup> January 2015 the Kisana Village, Namungo Sub county in Mityana District. The pieces of Respondents On various dates bought various pieces of land from different people between 20<sup>th</sup> March 2012 and 17<sup>th</sup> May 2015 the $\overline{a}$

was done. The portion of the estate on which the Respondents bought estate on behalf of his family advised them to wait until the distribution The Landlord who apparently was managing the land as an undivided

on 20<sup>th</sup> May 2015 "Landlord" named Namyalo who sold all her 20 acres to the Appellant bibanja approximated to be 3.9 acres was allocated to a sister of the

transported away for financial gain. growing entered In April 2016 the Appellant is alleged to the Respondents' crops and cut the eucalyptus trees they had planted which he land, cut the have forcefully and unlawfully barbed wire fence, damaged

The not the values stipulated by the District Land Board. Agricultural Officer at UGX. 16,623.750/- based on the market value and Respondents had the extent of the loss incurred computed yd $\alpha$

the agreements he executed with the Respondents were illegal. interests to the Respondents was just a caretaker of the land and that It was the Appellant's case that a one Abasi Kaswa who sold bibanja lawful owner of the land having bought the same from Amina Namyalo. The Appellant denied the alleged trespass contending that he $\overline{\mathsf{S}}$ the

he did not own. The Appellant sought a dismissal of the suit with costs. had agreed to compensate the Respondents for having sold them what It was further contended by the Appellant that the same Abasi Kaswa

court: Counsel for the parties agreed on three issues for resolution by the trial

$\mathbf{1}$ Whether the defendant is a trespasser on the suit land?

- $\mathcal{L}$ Whether the defendant destroyed the Plaintiffs' crops? - $\omega$ Remedies available to the parties.

$\overline{0}$ interest is subject to their Kibanja interest. The defendant was declared The trial Magistrate found for the Plaintiffs and held that they are the lawful occupants of the Kibanja in dispute and that the Defendant's lega be $\omega$ trespasser on account of his interference with the Plaintiffs'

$\mathcal{N}$

from further trespass possession. A Permanent injunction was issued to restrain the defendant

suit. and The court awarded the Plaintiffs special damages of Ugx. 16,623,750/= General damages of Ugx.6,000,000/= with interest and costs of the

Memorandum of Appeal with the following grounds of Appeal:-Dissatisfied with the judgment of the court the Appellant filed $\omega$

- $\vdash$ The learned Magistrate erred in law and fact in her finding that suit land. Respondents own the suit Kibanja and are lawful occupants of the the - $\overline{2}$ The learned Magistrate erred in law and fact in her finding that the Appellant was a trespasser on the suit land. - $\omega \\$ The learned Magistrate erred in law and fact in her finding that the $16,623,750/$ = without being supported with evidence **Respondents** were entitled to special damages of shillings. - $4.$ The learned Magistrate erred in law and fact in her finding that the 000/= without being supported with evidence Respondent $\overline{\mathcal{S}}$ entitled to General damages of shillings. $6,000,$ - $\overline{\mathfrak{S}}$ The learned Wagistrate scrutinize the evidence on record and arrived at wrong conclusions erred when she failed to evaluate and

No.065 of 2016 The Appellants prays for the setting aside of the judgment in Civil Suit and for costs of the Appeal.

### Representation

$S/M$ Respondents. Kazungu, Kajubi &Co. Kakooza Advocates appeared $\frac{1}{2}$ $\frac{1}{2}$ Alinaitwe Advocates for the Appellant while appeared tor $S/W$ the

the decision but not reproduced since they are part of the record Counsel filed submissions which have been considered in rendering

$\omega$

#### Duty of the 1<sup>st</sup> Appellate court

$\overline{5}$ the taking into consideration the fact that it had no opportunity to observe mandated to make its conclusions both on the law The duty of the first appellate court is to subject the evidence evidence the witnesses trial court to a fresh and and draw its own inference and conclusions during the trial. The exhaustive scrutiny. court must weigh the $and$ The the facts conflicting court is adduced but

### Others V Eric Tibebaga. SCCA No.17 of 2000. Lovinsa Nankya V Nsibambi {1980} HCB 81; Fr. Narcensio Begumisa $\infty$

## Grounds of Appeal No.1,2 and 5

the estate, the Respondents claim to have acquired unregistered interest in bought legal interest in the land from Namyalo a respective interests of the parties. While the Appellant claims to have The suit before the trial court was entirely premised on ownership of the same piece of land prior to its sale to the Appellant. beneficiary in the

determine the $1^{st}$ , $2^{nd}$ and $5^{th}$ issues. interests in the undivided estate $\triangleright$ determination as to whether the was Respondents purchase backed by the law suffices $\mathsf{of}$ their $\overline{0}$

were witnessed by Kasswa Abaasi and Kaziso Paul who represented the were all admitted in evidence as PEX1,PEX2 and PEX3. The agreements Nyiramugisha Juliet and Nyamwasa Ronald. The agreements of purchase Landlord The Respondents bought bibanja at different times from Abbasi Kasswa,

them amounting to Shillings. $90,000/=$ and consolidated I he Landlord Respondents through for portion. The Landlord received busuulu for purposes of acquiring legal interest (okwegula) in their the same agents a Kanzu for Shillings were introduced $\omega \\$ years from to $200,$ the

$\Delta$

admitted in $000/-$ Receipts evidence dated 28<sup>th</sup> February 2014 evidencing the payments were as PEX4.

until In acquiring but instead sold all the land to the Appellant introduced them to his Later on 16<sup>th</sup> January 2015 the Respondents communicated their interest the estate/land a title for the portions they held sister Amina Namyalo who also told them to wait $was$ distributed yq the but were Landlord advised who to later wait

appointment was $of$ Respondents and that he had been the caretaker of all the land on behalf Kasswa (PW2) confirmed that he Hajji Jaggwe the exhibited Landlord and marked PEX7. since sold $14^{\hbox{\footnotesize th}}$ a portion of October his. 1988. A kibanja letter to the $\overline{q}$

beneficiaries Jaggwe. PW3 of the It was the evidence of Kayiso Paul(PW3) that he later became a land and in the same estate now oversees the interests of a one Taubunas one of the its distribution was done after the death of Hajji care taker

English February kibanja in of the It was the argument of the Appellant that Kasswa(PW2) was a caretaker Respondents. Evidence estate 1982 was admitted for identification pending translation into 1982 from land and had Kato was however led to show that no ownership interest to pass on to the Ntungenabo. An agreement dated PW2 bought a $17^{\hbox{\footnotesize th}}$

seen by the agreement was later placed on the court record. The document was not Counsel for the court or reflected on the record of proceedings Respondents contends that $\overline{a}$ translated copy of the

$of$ that what he sold to the Respondents was located on Namyalo's share of The land Appellant to the however contends Respondents if after the that PW2 sub-division it was offered an alternative to be tound piece

$\cup$

just the estate. The $\omega$ caretaker who had no ownership on any part of the estate Appellant relies on this evidence to show that PW2 was

apologized on realizing that PW2 owned the kibanja he sold to Kato Ntungenabo Respondents since it was a portion of what he purchased in 1982 from Mukasa however retracted by PW2 claiming he was coerced to sign it by a Major The document attributed to PW2 dated 15<sup>th</sup> December 2015 and the Deputy Resident District Commissioner. The latter was the

did. the It is represented the Landlord when the document was signed also not document was not also signed by Namyalo and the Appellant who are Commissioner and denied knowing Major Mukasa who claimed to have $15<sup>th</sup>$ however pertinent to note that the Respondents were not privy to not December 2015 document and are thus not bound by it. The bound by it. The Appellant in cross examination stated that attend any meeting in the office of the Resident District he

of a kibanja on the suit land. of its acquisition cannot amount to evidence to rebut PW2's ownership had bought from Namyalo. The document in its form and by the mode another piece of land in lieu of the portion located on what the Appellant coerced I am inclined to believe the evidence of PW6 to the effect that PW2 into signing the document agreeing to offer the Respondents Was

died them parts of their bibanja in 2012 and they planted crops and tree that he introduced the Respondents to PW2 and Nyamwasa who sold collected land, the It is also an undeniable fact that by the time when he knew them. PW4 was also not challenged on the evidence busuulu from them and he would remit it to Hajji Jjagwe who Respondents' kibanja was known. PW3 confirmed that the Appellant bought the he

$\sigma$

was dead and his estate administered by the time the Appellant bought The transaction. The title of the land was in the name of Emuran Kewaza who questions as to whether he indeed carried out due diligence before the completed the purchase based on a Certificate of Succession. Local Authorities and the boundaries were opened The agreement was made at Kibuye and not witnessed by any of the Appellant's narrative about how he purchased the land also raises after he had

trespassers on the land. paid busuulu to the then Landlord and it cannot be said that they were purchased from $PWZ$ , Nyiramwisha and Juliana. The Respondents had bought the land, the Respondents lawfully owned bibanja on it The evidence on record sufficiently proves that by the time the Appellant

on the land coupled with his role as a caretaker. bought the land points to the fact that she knew that he owned a kibanja and even gave him a token of UGX.2.000.000/= after the Appellant had Namyalo for whom he was a caretaker of the land acknowledged his role by an Agreement admitted on record as an exhibit. The fact that PW2's agreement of purchase of his kibanja in 1982 was not supported

then it was her role to arbitrate any dispute arising from the transaction I find that Namyalo would not have paid any token to PW2 if he admitted on the court record. she entered into with the Appellant as stated in the sale agreement unlawfully sold part of the land he had been entrusted to safeguard. Even had

distribution of the estate.? of the 3.7 acres on the portion of land allocated to Namyalo during the question to pose is whether the Respondents were legally in possession With the above facts established from the record of the lower court, , the

$\overline{1}$

bona fide occupant had the protection of the Law on that account having purchased from a than 12 years before the promulgation of the 1995 Constitution and they Further to that, PW2 who sold them had owned the kibanja for more and a kanzu and thus had protection of the law as lawful occupants acquired the consent of the then Landlord through payment of busuulu Under sections $29(1)(2)$ and (5) of the Land Act, , the Respondents

interest as lawful occupants. and they are not trespassers. The Appellant bought subject to their I hold that the Respondents legally held their kibanja interest in the land

The dismissed. $1^{\text{st}}, 2^{\text{nd}}$ and 5<sup>th</sup> grounds $of$ Appeal are devoid $\mathsf{O}^{\mathsf{f}}$ merit and are

Ground of Appeal No.3

The 750/= without being supported with evidence. Respondents were entitled to special damages learned Magistrate erred in law and fact in her finding of shillings. 16, 623, that the

and trees were bruised by fire. that 1000 eucalyptus trees sitting on 0.56 acres were destroyed and 352 allegediy damaged by the Appellant on 10<sup>th</sup> May 2016. PW5 was attached to Namungo sub county in which the suit land is Rubwama Deogratious (PW5) is an Agriculture $was$ contacted by the Respondents to value the extension worker who trees established and located crops

crops value circumference capable of fetching shillings 10,000/- each at The trees were price were valued at shillings 3,103,750/- going by the market value then amounting about 1 year old to shillings and were $13,520,000/$ about 30 centimetres in The rest of the the market

PW5 compensation rates for the area because the values are so low hence the told court that $\frac{1}{\text{he}}$ did not apply the Local Government

$\infty$

his experience about the age of the trees destroyed and they were about 10 years from resort to the open market rates. He told court that he asked the workers

The the issue but chose special damages Appellant challenged the to adopt the computation by PW5 by PW5. The use of the open market prices trial Magistrate did not canvass to arrive this $at$

Respondents annually. These rates are binding and I find no cogent reason for PW5 to compute compensation rates which are required to be reviewed Section 59 $(1)$ (e) and $(f)$ of the Land Act mandates District Land Boards ignoring them in the computation of the damage/loss occasioned to the

merit in the 3<sup>rd</sup> ground of Appeal and uphold it 16,623,750/- since it was I fault the trial Magistrate for adopting based on a wrong computation basis. I find the computation of Shillings

Ground of Appeal No.4

without being supported with evidence. Respondent is entitled to General damages of shillings. 6,000, 000/ $=$ The learned Magistrate erred in law and fact in her finding that the

the before the cause of action arose nature General damages are awarded at the discretion of the nature of the suffering encountered. They are and are intended to put the victim in the position they were in compensatory in court considering

entitled entirely of law or the amount awarded was so large or so low as to make it an damages $\overline{AS}$ $\omega$ general rule, an Appellate court will not interfere with the erroneous by the trial court unless the estimate of the damages court acted upon wrong principles to which the party was award of

$\omega$

# Crown Beverages Limited V Central (2006)2 EA 43.

have been avoided by 6,000,000/=. I dismiss the $4<sup>th</sup>$ ground of Appeal. circumstances. I find no reason to interfere with the award of Shillings exercised her discretion and the quantum awarded was modest in the Given the fact that the Respondents were inconvenienced by should the Appellant, the trial Magistrate correctly

$750/=$ . sustained save grounds of Appeal are dismissed. The judgment of the lower court is In sum the Appeal succeeds on the $3^{\rm rd}$ ground. The $1^{\rm st}, 2^{\rm nd}, 4^{\rm th}$ and $5^{\rm th}$ Respondents. $4/5$ $of$ for the award of special damages of shillings the $\frac{1}{\sqrt{2}}$ taxed costs of the Appeal are awarded 16,623, to the


Moses Kazibwe Kawumi

Judge

26<sup>th</sup> February 2024

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