Kapta & Another v Mangusho (Civil Appeal 142 of 2023) [2024] UGHC 1106 (17 December 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## CIVIL APPEAL NO. 142 OF 2023

### (ARISING FROM CIVIL SUIT NO. 008 OF 2022)

#### 1. CHEPTEGEI KAPTA

2. KITIYO KULANY ::::::::::::::::::::::::::::::::::::

VERSUS

### MARTINEZ ARAPTA MANGUSHO

(Administrator of the Estate

of the late David Paul Arapta) ::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE. LUBEGA FAROUQ

#### **JUDGMENT**

### 1. Introduction

2. The Plaintiff/Respondent instituted Civil Suit No. 008 of 2022 against the Defendants/Appellants in the Chief Magistrate Court of Kapchorwa for- a declaration that the suit land forms part of the Estate of late Mzee David Arapta, a declaration that the Defendants trespassed on the suit land, vacant possession, general damages, permanent injunction and costs of the suit.

#### 3. Background

4. The Respondents facts in the trial court were that the Respondent's late father Mzee David Paul Arapta acquired the suit land and left the same in the hands of the Plaintiff as the heir to keep and manage it for the entire family. The said suit land is registered on Plot 39 and 40, Block 2 Matinmbey village, Suam Sub-County in Bukwo District measuring approximately 14.41 hectares. That in 2006 Mzee David Paul Arapta wrote a letter to the Appellants to vacate the suit land but they ignored and instead continued trespassing on the suit land. The Respondent having been appointed an executor of the will, he also wrote an

additional letter to the Appellants to vacate but they remained adamant.

- 5. The above action, prompted the Respondent to institute Land Suit No. 0019 of 2016 but the same was settled by agreement. In that agreement, it was agreed that the Respondent would buy one acre of land within Bukwo District to relocate the families of the Appellants which the Respondent did but the Appellants again re-entered the suit land. Hence, the action from which this appeal arises. - 6. The Appellants in their written statement of defence however made general denials but of interest denied the alleged letters to vacate and admitted entering in to a consent settlement on condition that the Respondent was to purchase for them the land within Matimbei Parish.

### 7. Issues for trial court's resolution

- 8. The issues for the trial court's resolution were- - (a) Who is the rightful owner of the suit land? - (b) Whether the defendants are trespasser? - (c) What remedies are available to the parties? - 9. The trial magistrate found the Respondent to be the registered proprietor of the suit land, he found that the Appellants are not bona fide occupants and therefore trespassers on the suit land. - The Appellants were dissatisfied with the trial magistrate's decision 10. hence this appeal.

#### **11. Grounds of Appeal**

- According to the amended memorandum of appeal filed in this court 12. on 21<sup>st</sup> of October, 2024, the Appellant framed the following grounds- - (a) That the learned trial chief magistrate erred in law and fact when he failed to hold that the suit was barred by limitation - (b) That the learned trial chief magistrate erred in law and fact when he failed to hold that the Appellants were bong fide occupants on the suit land

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- (c) That the learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record and held that the Appellants are trespassers thereby occasioning a miscarriage of justice. - The Appellants prayed that the appeal be allowed, set aside the 13. judgment and orders of the lower court and enter judgment in favour of the Appellants and grant costs to the Appellants of this court and of the lower court.

#### **Legal Representation** $14.$

- Counsel Watubo Cornerious represented the Appellants and 15. Counsel Ogundi Anthony represented the Respondent. - This suit proceeded by way of written submissions and all the 16. parties complied. I will consider them in the determination of this matter.

#### Duty of the first Appellate Court 17.

The guiding principles on the duty of the first Appellate Court were 18. discussed in the case of Fr. M. Begumisa & Ors V. E. Tibegana SCCA

No. 17 of 2003. In that case it was held that-

"The appellate court has to bear in mind that its duty is to *rehear the case and the court must consider the trial before the Judge with such materials as it might have decided to admit.* The court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over ruling it if on full consideration, the court comes to the conclusion that the judgment is wrong."

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The principles in the above decision will guide this court in the 19. determination of this appeal.

*preliminary objection* 20.

Counsel for the Respondent raised a preliminary objection in his 21. submissions that the instant appeal is premature and incurably defective since it was filed before extracting the decree of the court judgment.

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- cited Abel Nayebaza & Charles Nyakahuma V. 22. Counsel International Credit Bank Ltd HCD 00 CC 1059 of 2013, Kiwege, Mgude Sisa Estates Ltd V. M. A Nathwami (1952) E. A. C. A 160, the case of Security Group Uganda Ltd V. Edith Byanyima and Another MA 0097 of 2011 and Board of Governors and Headmaster Gulu S. S. V. Plumson E. Odong Civil Appeal No. M92 of 1990 where it was held that- "It is a requirement of law that these documents (decree or order) be filed together when an appeal is lodged. A decree or order from which an appeal is preferred must be extracted and filed together with the memorandum of appeal. Failure to do so renders the appeal incompetent." - Relying on the above authorities counsel argued that the instant 23. appeal fails on all fours since the decree or order appealed against by the Appellant is not on court record save for only certified copies of the judgment and the proceedings. Counsel contended that the foregoing makes it clear that the record of appeal which does not have a certified copy of the decree or order appealed from is incurably defective. - Counsel for the Appellants on the other hand submitted that the 24. preliminary objection should be overruled. He cited Order O.21 rule 7(2) of the Civil Procedure Rules which provides that- "It shall be the duty of the party who is successful in a suit to prepare without delay a draft decree. - Counsel further cited 0.21 rule 7(3) of the Civil Procedure Rules 25. which requires the magistrate who pronounced the judgment to draw up the decree and that magistrate's failure to extract the decree should not be apportioned on the Appellants who by the time of making this appeal were not represented by an advocate. - Counsel in addition cited Standard Chartered Bank (U) Ltd V. 26. Grand Hotel (U) Ltd Civil Appeal No. 13 of 1999 where court held

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that extraction of a formal decree embodying the decision being appealed against is no longer a requirement in the institution of an appeal. An Appeal by its nature is against the judgment of a reasoned order and not by the decree extracted from the judgment.

Counsel for the Appellants also cited **Banco Arabo Espanol V. Bank** 27. of Uganda Civil Appeal No. 42 of 1998 where it was held that-"extraction of a formal decree is no longer a requirement in the institution of an appeal, and that it is a mere technicality which does not take away the merits of the appeal in light of Article $126(2)$ of the Constitution."

#### Determination of court. 28.

- 29. Order 21 rule 7 (3) of the Civil Procedure Rules SI.71 provides that-"In a magistrate's court, the decree shall be drawn up and signed by the magistrate who pronounced it or by his or her successor." - The Court of Appeal in **Banco Arabe Espanol V. Bank of Uganda** 30. **Civil Appeal No. 42/1998** stated that the extraction of a decree was a mere technicality which the old municipal law put in the way of intending appellants and which at times prevented them from having their cases heard on the merits, and that such a law cannot co-exist in the context of Article $126(2)$ (e) of the Constitution. That position was maintained by the same Court of Appeal in **Standard Chartered Bank** (U) Ltd V Grand Hotel (U) Ltd Civil Appeal No. 13/1999. - 31. From the foregoing decision, it is obvious that extraction of a formal decree of the judgment is no longer a requirement for filing or institution of an appeal, since an appeal by its nature is against the reasons enshrined in the judgment and not the extracted decree. - In any case, as rightly submitted by counsel for the Appellant, Order 32. 21 rule 7 (3) as above quoted requires the trial magistrate to draw up the decree. Hence, the same cannot be blamed on the Appellants. - The preliminary objection is accordingly overruled. 33.

#### **Analysis of court** 34.

- Ground No.1: That the learned trial chief magistrate erred in **35.** law and fact when he failed to hold that the suit was barred by limitation - Counsel for the Appellants submitted that at page 4 of the judgment, 36. it is clearly indicated that in the Appellant's written statement of defence, the Appellants stated that they were born on the suit land. He contended that further according to the Appellants' evidence, their father settled on the disputed land. - Counsel submitted that the Appellant's father died in 1989 when 37. they were in occupation of the suit land, stayed there since then, till 2006 when the Respondent's father wrote a letter chasing them away. - He cited sections 5 and 6 of the Limitation Act Cap 290 and the case 38. of FX Mirango V. Attorney General (1979) HCB 24 where it was held that- "the period of limitation begins to run as against the plaintiff from the time the cause of action has accrued, for as long as there is capacity to sue time begins to run as against the plaintiff. One of the important principles of the law in limitation is that once time has begun to run, no consequences, disability or liability to sue stops it." - Counsel further cited Kiwanuka V. Kibirige Civil Appeal No. 272 39. to submit that the evidence of the of 2017 (2022) UGCA 248 Respondent's witnesses and those of the Appellants confirm that the Appellants have stayed on the suit land for a very long time uninterrupted, hence the Respondent is barred by the law of limitation. - Counsel for the Respondent on the other hand submitted that at 40. page 4 of the judgment lines 27-28 clearly indicates that the trial magistrate found that the Appellants' father lived on the suit land as a caretaker until his death. He argued that the Appellants in their WSD paragraph 2 stated that the Respondent should be put to strict proof that they were not living on the suit land since they were born, but failed to state the interest claimed on the same.

- Counsel submitted that being born and living on a certain piece of $41.$ land does not automatically entitle one to ownership of the same. He contended that it's both the Appellants 'and Respondent's evidence that their late fathers stayed together on the suit land even after the death of the Appellants father, they continued on the suit land not until the Respondent's father relocated the other 6 siblings of the Appellants elsewhere in Tula village together with the Respondent's mother. - Counsel argued that the last communication of the Respondent's 42. father was in 2006 as per PEX.1 which instructed them to vacate the suit land but they refused. In light of PEX.1, the period of limitation begun to run against the Respondent's father from 2006 and unfortunately he died in 2007. - Counsel contended that thereafter, the Respondent picked up from 43. his father and before the expiration of 12 years, in 2018 he filed a suit at Bukwo Magistrates Court and it was withdrawn following a clan meeting as per PEX.3. In that meeting, it was agreed that the Respondent was to buy land elsewhere for the Appellants which was done but the Appellants still refused to vacate the suit land hence Civil Suit No. 008 of 2023.

## Determination of court 44.

Section 5 of the Limitation Act Cap 290 provides that-45.

> "No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."

Section 6 $(1)$ of the same Act provides that-46.

> "Where the person bringing an *action* to recover *land*, or some person through whom he or she claims, has been in possession of the land, and has while entitled to it been dispossessed or discontinued his or her possession, the right of action shall be

> > $\overline{7}$

deemed to have accrued on the date of the dispossession or discontinuance."

As clearly indicated by the above provisions of the law, the time 47. prescribed starts running from the time the right of action accrued. The period of limitation thus starts to run from the time the person bringing the action is dispossessed of the land in dispute. Once the time period limited by the Limitation Act expires, the plaintiff's right of action is extinguished and becomes unenforceable against a defendant. (See:

## F. X. Mirango V. Attorney General (Supra).

- In the instant case, according to the evidence on the court record, 48. PW1 in his evidence in chief told court that- "The defendants have been occupying our land. My father told them to leave the land. The last communication from my father was done in 2006. The defendants refused to vacate the land. I also asked the defendants to vacate and they refused." - In cross-examination PW1 said "my father requested you to vacate 49. the land in 2006. My father wrote a letter and addressed it to you." - PW2 further said in cross-examination said that- "Your father was 50. not chased but our father served you with letters to vacate the land." - PW4 said that- "the defendants stayed on the land and they were 51. given notice to vacate the land but they did not leave. Clan leaders were involved in the dispute and it was resolved that two acres of land be bought for them in Bukwo District." - 52. The stated notice of vacation which was served on the Appellants was tendered in court as PEX.1. It is dated 6<sup>th</sup> July, 2006 and written by late David Paul Arapta (father of the Respondent). In the letter, he was asking the Appellants to vacate his land. - Therefore, the cause of action accrue against the Respondent on 6<sup>th</sup> 53. of July, 2006. The record shows that following the Appellant's refusal to vacate the suit land, the Respondent instituted Civil Suit No. 0019

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of 2016 but the same was withdrawn following the alleged consent settlement mediated by the clan members as per PEX.3.

- The settlement according to the Respondent's evidence was that the 54. Respondent was to buy two acres of land in another area within Bukwo District for the Appellants' resettlement. He bought the said land but the Appellants still refused to vacate hence Civil Suit No. 0008 of 2022 from which this appeal arise. - In the view of the above, it is apparent that the cause of action 55. accrued on 6<sup>th</sup> of July, 2006 which led to institution of the Civil Suit 0019 of 2016. From 2006 to 2016 is the period of 10 years. - The above suit was then withdrawn upon consent settlement but 56. the Appellants failed to abide by what was agreed upon and the Respondent instituted another suit. Upon failure by the Appellants to abide by the agreed terms, afresh cause of action accrued which led to the institution of Civil Suit No. 0008 of 2022, hence this suit is not time barred. - Ground No. 1 is answered in the negative. 57. - Ground No.2: That the learned trial chief magistrate erred in 58. law and fact when he failed to hold that the Appellants were bona fide occupants on the suit land - Section 29 (2) of the Land Act Cap 236 provides that-59.

"Bona fide occupant means a person who before the coming *into force of the Constitution—*

(a)had occupied and utilised or developed any land *unchallenged by the registered owner or agent of the registered* owner for twelve years or more..."

In Kampala District Land Board and Chemical Distributors V. 60. National Housing and Construction, Supreme Court Civil Appeal No. 02 of 2004, it was held that-

> "Where the respondent had been in possession or occupation of the suit land for more than 12 years at the time of coming in

> > 9

force of the 1995 constitution and having utilized the same without any challenge, the respondent was entitled to enjoy its occupancy in accordance with Article 237(8) of the constitution and section 31(1) of the land Act, if the suit land was registered land."

61. According to principles of land law in Uganda by John T. **Mugambwa at page 12** the author stated that-

> "*Essentially a bona fide occupier is a trespasser or a squatter.*" Although the word bona fide is used to describe the occupier, there is no requirement in the provision that he or she must have entered the land in good faith. The motive of the person when *he or she entered the land is not material."*

- In the instant case, the Appellants told court that the suit land was 62. given to their late father by the Respondent's late father David Paul Arapta. However, although they allege as so, none of them saw the alleged agreement which gave their father the said land. - 63. On the other hand, the Respondent's witnesses told court that the Appellant's father only came on the land as a care taker with no interests whatsoever. - From the court record, the Appellant's father died in 1989 and the 64. Appellants' other family members were vacated from the suit land by late David Paul Arapta (the Respondent's father) in 1991. After that gesture, the Respondent's father further issued a notice to the Appellants to vacate the suit land in 2006. - Subjecting late David Paul Arapta's action of vacating the 65. Appellant's family from the suit land to scrutiny, simply implies that the agreement between him and the Appellant's father was temporary. Therefore, in abide to mitigate actions like the instant one, he vacated the said family from the suit land. - 66. Therefore, the fact that the Appellants do not know the terms upon which their father entered the suit land and the understanding which

their father had with late David Paul Arapta, they cannot claim to be bona fide occupants.

- Secondly, the Appellants' father died in 1989 and from that time to 67. 1995 when the Constitution of Uganda was promulgated, is a period of only 6 years. Hence, the Appellants do not qualify as bona fide occupants - Ground No.2 is answered in the negative. 68. - Ground No. 3: That the learned trial magistrate erred in law 69. and fact when he failed to properly evaluate the evidence on record and held that the Appellants are trespassers thereby occasioning a miscarriage of justice. - In Justine E. M. N Lutaya V. Stirling Civil Engneering Company 70. Ltd, Civil Appeal No.11 of 2002, it was stated that "a tort of trespass" to land is committed when a person makes unauthorized entry upon land and thereby interfere or portends to interfere with another person's possession of the land. Therefore, trespass is the entry on the land *without consent of the owner".* - In Halsburys Law of England para 1205 Volume 38 3<sup>rd</sup> edition, it 71. was stressed that "trespass to land is committed where a person *wrongfully sets foot upon or takes possession of or takes materials from land belonging to another person".* - In the instant case, the Appellants admitted that they do not know 72. the agreement and understanding which existed between their late father and late David Paul Arapta. This clearly indicates that the Appellants do not have knowledge or history of how their late father acquired the suit land. - As already discussed under Ground 2, the gesture taken by late 73. David Paul Arapta to vacate the Appellants family from the suit land, indicated that the agreement he had with the Appellants' father was temporary.

- It is an admitted fact that it is late David Paul Arapta who allowed 74. the Appellant's father to stay on the suit land. By vacating his family after his death, meant that he did not want them any more on his land. Therefore, late David Paul Arapta's service of the notice to vacate the suit land to the Appellants, meant that he had rejected their permission to enter the suit land. Hence, the Appellants' continuous occupation of the same amounted to trespass. - 75. The trial magistrate did not therefore error when he found the Appellants to be trespassers. - 76. Ground No. 3 is answered in the negative. - 77. In the final results, this appeal is hereby dismissed. - Costs are awarded to the Respondent. 78. I so order.

LUBEGA FAROUO Ag. JUDGE

*Judgment delivered via the emails of the Advocates of the parties on* $17<sup>th</sup>$ day of **December**, 2024.