Kangave Fabiona v Kigongo Paul Mutebi and Mubiru Steven (Civil Appeal 18 of 2022) [2024] UGHC 1266 (25 January 2024)

### **THE REPUBLIC OF UGANDA**

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

# **CIVIL APPEAL NO. HCT-17-LD-CA-0018-2022**

**ARISING FROM WOBULENZI CIVIL SUIT NO. 166 OF 2018**

**KANGAVE FABIONA………………………. APPELLANT**

**V**

**1. KIGONGO PAUL MUTEBI**

**2. MUBIRU STEVEN………………….. RESPONDENTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

# **JUDGMENT**

### Introduction

1. By a memorandum of appeal filed on 15.5.2023 by the Legal Aid Clinic on the appellant's behalf, the appellant Kangave Fabiona appealed the judgment of Hope Bagyenda magistrate grade one as she then was on four grounds of appeal to which I shall revert later in the judgment. I note that the judgment of the trial court is not dated although the memorandum of appeal cites 20.10.2022 as the date of delivery. Both parties filed written submissions through their respective advocates which submissions I have carefully considered.

Background facts to the appeal

- 2. By a plaint lodged on 19.9.2018, the appellant Kangave sued the respondents Kigongo Paul Mutebi and Mubiru Steven for recovery of a kibanja located on Bulemezi Block17 Plot 414 Lunyolya LC1, Kalagala sub-county in Luwero district on the grounds that the kibanja previously belonged to his late father Musanini Mukiibi who acquired it in 1948. Kangave further claims that his father's demise in 1984, together with family members, they continued to live on the kibanja and that in 2014, Kigongo and Mubiru trespassed on the kibanja by constructing thereon and buried their dead on the said kibanja. - 3. In their written statement of defence, Kigongo and Mubiru denied the claim and averred that they are on Block 17 Plot 320 and not Plot 414. They averred that they purchased the land from Nanchinga a.k.a Nakinga Maria Rose who sold to them her share in the estate of late Fabiano Mulali and denied Kangave's claim that his late father ever lived on the land. After listening to both parties, the learned trial magistrate dismissed Kangave's claim hence this appeal.

### Duty of the first appellate court.

4. Under Section 80(2) of the Civil Procedure Act Cap.71, the first appellate court has the same powers as a the original court and as pronounced in **Fr. Narcensio Begumisa and three others V Eric Tibegaga**, **Supreme Court Civil Appeal No. 17 of 2002**, the duty of the first appellate court is to reevaluate the evidence adduced in the trial court and arrive at its own conclusions on issues of fact and law while bearing in mind that the trial court had an opportunity to hear from the witnesses first hand which I have done.

- 5. From the her judgment, the learned trial magistrate was alive to the legal and evidential burden of proof on the parties wherein the appellant Kangave had a legal burden to prove his case on a balance of probabilities while both parties had the evidential burden to prove the existence of facts they alleged on the same standard of balance of probabilities. Three issues were framed for trial: - a. Whether the suit land forms part of the estate of the plaintiff's father. - b. Whether the defendants have trespassed on the suit land. - c. Remedies

### Resolution of the appeal

### *The appellant's case*

6. It was Kangave's evidence presented through a witness statement and through cross-examination that he is aged 40 years, a resident of Lunyolya village, Kalagala Luwero district. It was not disputed that his parents were Malisanini Mukiibi who died in 1984 and Robina Nambuya who died in 2011. According to Kangave PW1, his father Mukiibi owned a kibanja measuring approximately 10 to 11 acres. *Malisanini* Mukiibi is spelt variously in the pleadings and witness statements as *Musanini, Malisalini and Malisali.* For the sake of consistency, I will refer to him as *Mukiib*i only.

- 7. According to Kangave, his father Mukiibi had seven children. Furthermore, that his grandfather *Mulari* Fabiona and an elder Katende got a share of the eleven acres. Mulari is referred to by different witnesses as Mulali. I will refer to him as *Mulali.* He is the predecessor in title to the mailo interest in the suit land so it does not make sense for him to get a share of Mukiibi's kibanja on the same land. - 8. Furthermore, Kangave's testimony was that his brothers: Joseph Abbas, Masio Mukasa, Kasabuko, Kasegu Joseph, Kabingo each got a share in the kibanja. (Page 6 of the record of proceedings). He sued because the respondents bought his share of part of Kabugo's land/kibanja measuring two acres. Kabugo is a brother to Kangave and it was Kangve's case the two were given the suit land as their share in the estate of their late father Mukiibi. - 9. It was Kangave's evidence that his father's kibanja was located on the land of Fabiano Mulali and that one Maria Loza Nakinga sold her mailo interest to the respondents in 2009. - 10. Worthy of note is that Kangave's testimony on how he got dispossessed is not clear. He claims to have grown up on the suit land but also claims he was imprisoned in 2009 for demolishing the respondents' house on the suit land. At the same time, that he received a letter from the respondents chasing him from the land and it was on the basis of this letter he filed a suit in 2018. Furthermore, his father died in 1984 so it is not clear whether

Kangave entered the land at this time or whether his father was using the suit land prior to his demise.

- 11. Another piece of evidence that calls for further scrutiny is Kangave's claim that Mulali Fabiano was his grandfather and therefore potentially father of Mukiibi. - 12. His first witness Nakate Nasita (Anastanzia) PW2 aged 49, resident of Lunyolya Kalagala, Luwero district was aged 12 years when Kangave's father died in 1984. According to her testimony, Mukiibi had two bibanjas with houses on both and that he had lived on the land for 15 years prior to his death. This is contrary to the claim in the plaint that Mukiibi had lived on the suit land since 1948. - 13. The other relevant evidence from Nakate is that a family meeting was held in 1984 and Mukibi's land was distributed. She confirmed there was no Will contrary to Kangave's claims of its existence and that Kangave was given the suit land. Furthermore, that Kangave was imprisoned for a different kibanja and not the suit kibanja. An important piece of evidence she attested to was that Kangave's wife lives on Fabiano Mulali's land and she has never been sued. Kangave bought this second kibanja according to Nakate. - 14. According to Mutawe Augustine PW3, aged 59 years, resident of Lunyolya village, he was present when Mukiibi's kibanja was being divided among his children and that the suit kibanja was the share of Kangave and Kabugo Joseph and that Maria Nakinga sold her

mailo interest to the respondents who do not recognize the kibanja interest.

- 15. It is evident from the foregoing analysis that although they are all consistent that the suit kibanja was part of Mukiibi's estate, the fact that a dispute erupted after his death is a relevant fact because it casts doubt on the claim that the portion of land belonged to Mukiibi especially when Kangave's brothers got portions without conflict. - 16. The evidence of Kangave's physical possession only vaguely emerged during the locus visit when he claimed to have started using the land in 1992 and that he had planted potatoes which were damaged. He actually admitted at the locus that Cissy Namakula DW4, administrator of the estate of late Mulali Fabiano, is his cousin. - 17. Evidently, there was a blood relationship between Kangave and Fabiano just as Kangave himself claimed which means he felt entitled to a share of Mulali's land and not that the suit land was part of his father Mukibi's estate.

#### *The respondents' case*

18. The facts that emerge from the testimony of DW1 Kigongo Paul Mutebi, aged 51 years, resident of Mpererwe, Kawempe Division, Kampala are that he is the father of the second respondent Mubiru Steven and that he participated in the sale agreement after conducting due diligence with the local authorities. I note that a sale agreement dated 24.6.2009 in Luganda is attached to the written statement of defence and in the respondent's is reproduced below.

> *'I Nakinga Maliya Loza from Kaseka, I have sold my land and the registered interest which I inherited from my father Fabiona to Mubiru Steven. I have sold three acres on Block 17 Plot 20 at 3,000,000/ and he is free to use the land.'*

> *Signed: Nakinga Maliya Loza –seller Mubiru Steven –buyer. Witnesses: Paulo Kigongo; Sempa Muttasa; Komakech and Namakula Cissy.*

- 19. Counsel for the appellant submitted that the sale agreement and title deed were never tendered in evidence and were smuggled onto the record and therefore ought to be discounted citing **Opaka William Otti and anor v Naftali Dan Okuna CA No. 041 of 2018** by Justice Mubiru in support. Unfortunately, counsel did not avail the precedent neither is it reported on ULII as my search for it has been fruitless so I cannot rely upon it. - 20. Since the sale agreement was attached to the written statement of defence, I will consider it even if the record is silent on whether the same was tendered in evidence.

- 21. The sale of land was supported by Namakula Cissy DW4, 43 years old, resident of Kakuma, Bamunanika. She is the administrator of Fabiono Mulali who originally owned the land bought by the second respondent Mubiru. According to Namakula, Kangave Fabiano is son to Mukiibi, a family friend for whom her father bought a kibanja measuring two acres so that he would settle near him. Furthermore that Kangave bought land from Nakirwada daughter of late Fabiono Mulali's land in her capacity as a beneficiary and that Kangave lives on this land. This fact is supported by Nakate PW2. It was her testimony that Kangave claims land that is the share of Nankinga Maria Rosa from the estate of her father Mulali Fabiano and that Kangave has never had a kibanja interest on this land. - 22. The other defence witness was DW3 Lawrensio Yiga, 73 years old, LC1 chairperson of Lunyolya. What stands out in Yiga's testimony is that Mubiru Steven bought land which is different from the one he Yiga at one time rented from Fabiona Mulali. His testimony will therefore be discounted because it is vague. - 23. The other defence witness is the second respondent Mubiru Steven DW2, 35 years, resident of Kabago Nanyombo and that he bought the suit land for Nakinga and that the house he had built was destroyed. Evidently, this is the house Kigongo DW1 mentioned had been destroyed by Kangave. - 24. Defence witnesses Kigongo and Namakula attested to the fact that the suit land/kibanja has a certificate of title. Although the same was

attached to the respondents' submissions in the trial court, the title will be discounted as evidence because its integrity cannot be guaranteed in the absence of the original title and a search statement by the registrar of titles.

- 25. However, the fact that Namakula Cissy who transferred the land into the names of Mubiru Steven confirmed the transaction which is based on a valid sale agreement between a beneficiary of the estate of Fabiono Mulali, Nakinga Maria Rose and Mubiru is credible evidence that the land was lawfully acquired by Mubiru Steven. - 26. It is evident that Kangave makes a false claim to inheriting a kibanja on Fabiano Mulali's land especially when evidence of physical possession is wanting and in light of the credible defence case that this land belonged to Nakinga. Although Namakula DW4 described Mukibi as a family friend, at the locus, she described Kangave as a cousin while Nakinga the seller is a paternal aunt to Kangave. Therefore, it seems Mukibi and Mulali Fabiona were brothers which leads to the credible inference that Kangave attempted to dispossess Nakinga his aunt who migrated to Bunyoro and later sold her share to the respondents. These facts emerged during the locus in quo visit. - 27. In light of the foregoing finding, I find that the learned trial magistrate generally arrived at a correct conclusion that the appellant Kangave failed to prove his claim on a balance of probabilities. I now turn to the grounds of appeal.

### **Ground one**

*The learned trial magistrate erred in law and in fact when she failed to properly evaluate the evidence and arrived at a wrong conclusion that the land belonged to the second respondent.*

#### **Ground two**

*The learned trial magistrate erred in law and in fact when she disregarded the appellant's evidence.*

28. Counsel for the appellant submitted that the appellant is a bona fide occupant within the meaning of Section 29 (2) (a) of the Land Act Cap. 227. Having found that the appellant failed to prove on a balance of probabilities that he had ever been in possession or that his father Mukibi had ever been in possession of the suit land as a kibanja holder, there was no need for the trial magistrate to delve into whether the appellant was a bona fide occupant. Grounds one and two fail.

## **Ground three**

*The learned trial magistrate erred in law and in fact when she relied upon documentary evidence attached to respondents' submissions.*

29. Counsel for the respondents suggested in his submissions that the problem with the judgment of the trial court was to do with errors in typing proceedings. I have observed that the handwritten proceedings are not paged which makes correlation with the typed record rather cumbersome.

- 30. With that said, I have discounted the title deed for the suit land because it is a photocopy and there is no search statement from the registrar of titles and neither was it attached to the written statement of defence. - 31. As for the sale agreement, it was attached to the written statement of defence and was mentioned by defence witnesses and therefore, the learned trial magistrate rightly relied upon it. Ground three fails.

#### **Ground four**

*The learned trial magistrate erred in law and in fact in awarding compensation for 3,000,000/ to the respondents.*

*32.* It is trite law that general damages are awarded to compensate the party who has suffered loss and put him in the position he would have been if the loss had not occurred. **Supreme Court Civil Appeal No. 8 of 1999 Robert Coussens v Attorney General** refers. In this case, the Supreme Court cited with approval *Lord Blackburn in: Livingstone v. Rowyards Coal (1880)5 App Cas. 259 where the court held that*

> *"The broad general principle which should govern the assessment of damages in cases such as this is that the tribunal should award the injured party such a sum of money as will put him in the same position as he would have been if he had not sustained the injuries.'*

33. It is evident that the appellant destroyed part of the second respondent's house which is also trespass to property. I therefore do not have any reason to interfere with the quantum of 3,000,000/ which is reasonable in the circumstances. Ground four fails.

# Orders

- a) As all four grounds of appeal have failed, the appeal is dismissed. - b) The judgment of the trial court is substituted with my judgment. - c) The second respondent Mubiru Steven is the rightful owner of the suit land having lawfully purchased it from Nakinga Maria Rose alias Maliya Rosa. - d) The appellant Kangave does not have any kibanja interest in the suit land nor is he a bona fide occupant. - e) A permanent injunction shall issue restraining the appellant Kangave from interfering with the quiet possession of the second respondent Mubiru Steven. - **f)** The award of 3,000,000/ general damages to the second respondent Mubiru Steven is confirmed and to be paid by the appellant Kangave Fabiona**.** - g) The appellant shall pay the respondents Kigongo Paul Mutebi and Mubiru Steven costs of this appeal and the trial court.

# **DATED AT LUWERO THIS 25TH DAY OF JANUARY 2024.**


## **Legal representation**

Legal Aid Clinic, Luwero for the appellant Atyang Christine & Co. Advocates for the respondents