Kasana & Another v Ainebyoona & 3 Others (Civil Appeal 42 of 2022) [2023] UGHC 444 (9 March 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

# HOLDEN AT RUKUNGIRI FORMERLY KABALE

# CIVIL APPEAL NO.42/2022 FORMERLY CIVIL APPEAL NO.39/2021

(ARISING FROM CIVIL SUIT NO.036/2016, CHIEF MAGISTRATES COURT RUKUNGIRI)

- 1. KASANA JAMES - 2. MARIDADI FRED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. AINEBYOONA GODFREY FAIDA - 2. HENRY KASANGIRA - 3. MERABU BUSAN - 4. SHARON NIYONSABA:::::::::::::::::::::::::::::::::::

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# BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE

#### **Ruling**

The Appellants/Plaintiffs, Kasana James and Maridadi Fred filed this appeal against the Respondents/Defendants, arising from the orders and decisions of Her Worship Mbabazi Edith Mary, Chief Magistrate, Rukungiri dated 24th November, 2021 vide Civil Suit No.036/2016. $\sim$ $\mu$

The Appellants were represented by M/S Onyango & Co. Advocates while the Respondents were represented by M/S Mwene-Kahima, Mwebesa & Co. Advocates.

The parties were directed through their respective Counsel to file their written submissions which they did following a schedule issued by the court on 18/07/2022.

The court shall take into consideration the submissions without necessarily reproducing them.

The Appellants appealed against the whole judgment and decision of the Magistrate on the following grounds as contained in the memorandum of appeal dated 14th December, 2021; 1. The learned trial Chief Magistrate erred in law and fact when she failed to evaluate the evidence as a whole and arrived at a wrong conclusion when she dismissed the plaintiff's suit with costs and declared that the suit land forms part of the estate of late Aslem Rwabagabo and that the defendants/respondents are not trespassers on the suit land.

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- 2. The learned trial Chief Magistrate erred in law and fact when she held that the defendant/respondents were born and brought up on the same disputed land unchallenged until the demise of their parents who died in 1978 and 2008 respectively whereas not. - 3. The learned trial Chief Magistrate erred in law and fact when she held that when court visited locus, It found out that everyone lives on the land in dispute including the plaintiffs and siblings whereas not. - 4. The learned trial Chief Magistrate erred in fact and in law in ignoring the straight forward facts that; - a) The suit land belonged to John Frederick Kyamatuku. - b) By land sale agreement of 16/06/1980, the said John Ferderick Kyamatuku sold it to the plaintiffs/appelllants - c) That the said John Ferderick Kyamatuku duly signed consent transfer forms. - d) There was no evidence of sale of land between the original freehold owner (John Ferderick Kyamatuku) and the late Aslem Rwabagabo. - e) The late Aslem Rwabagabo had no interest on that land hence it does not form part of his estate.

It was proposed for the Appellants in the memorandum of appeal that the appeal be allowed and costs of the appeal and of the lower Court be paid to the Appellants by the Respondents.

At the Court below, the Appellants (formerly plaintiffs) sued the Respondents (formerly Defendants) jointly and severally for among others declaratory orders that they are the owners of the suit land, a permanent injunction restraining the Respondents, their agents and any person (s) claiming under them from interfering with the plaintiffs'/appellants' ownership and usage of the suit land, an eviction order, general damages and costs of the suit.

It was the appellants' case that in 1980 they jointly purchased land located at Kakibaya 'B', Kakinga Parish, Kebisoni Sub County- Rukungiri district comprised in Block 20, plot 16161 from one John Frederick Kyamatuku at the consideration of Ug.shs 300,000/-. It was further their case that they took possession of the suit land upon purchase until 2012 when the 1st Respondent started claiming ownership of the same, forcibly entered the land and planted coffee, bananas and constructed a house thereon meanwhile the 2nd, 3rd and 4th respondents also trespassed on the suit land by cultivating and growing crops on it.

The Defendants in their joint written statement of defense refuted the plaintiffs' claims and contended that the suit land forms part of the estate of late Aslem Rwabagabo and claim the same as beneficiaries. The Defendants also claim in the alternative as Bonafide occupants on the suit land.

# The Appellant/the plaintiffs' evidence.

The Appellants(Plaintiffs) presented three witnesses and 6 pieces of documentary evidence herein.

The first Appellant, Kasana James testified as PW1 to the effect that the 1st defendant/respondent is his nephew while the 2nd, 3rd and 4th defendants/respondents are his brothers and sister respectively.

He stated that in 1966 their father, Aslem Rwabagabo moved with his family from Kabale to Kajara-Ntugamu. That in 1970 their father went to Kebisoni-Rukungiri district where he (Rwabagabo) was employed by one Kyamatuku John Fredrick and his wife Jovanisi as their herdsman.

He said and his siblings stayed on Kyamatuku's land since 1970 and sometime in 1980 when Kyamatuku offered his land for sale he (1st appellant) and the 2nd appellant bought it on 16/06/1980. $\mathcal{L}_{\mathcal{A}}$

An agreement was made to that effect. It was further PW1's testimony that the suit land was registered in the name of John Frederick Kyamatuku and the said Kyamatuku signed transfer forms in their favour but could not finish the transfer process as he suffered from a stroke.

They presented to court a copy of the certificate of title to the land together with copies of transfer forms.

PW1 testified that in 2012, the defendants started claiming ownership of the suit land as family members of late Rwabagabo and that the defendants damaged their properties including banana plantations and coffee trees.

The 1st defendant is alleged to have constructed a house on the suit land forcefully at night.

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He stated that they bought the land at Ug.shs 300,000 and paid into three installments and whenever they would pay they would be issued with receipts. He said when they purchased the suit land their father Rwabagabo was present but he did not witness the transaction so were the defendants and the neighbors. That they never shared the suit land but had a family meeting with local leaders and residents where he and the 2nd plaintiff/appellant wanted to give the $1^{st}$ and $2^{nd}$ defendants part of the land but they refused. That he acquired a cow from the father of PW3 after which he sold to acquire the suit land.

PW2 -Jovanis Kyamatuku, testified that;

-she and her husband Kyamatuku employed Aslem Rwabagabo as their herdsman in 1970 and the said Aslem later brought his family which they accepted. In 1980 she and her husband Kyamatuku sold their land to the plaintiffs since the plaintiffs' father, Rwabagabo had no money. PW2 stated that the plaintiffs, their father Rwabagabo and the defendants stayed on the suit land since 1970 and that her late husband never gave land to Rwabagabo. $-(11)$

PW3 Bahirwa Emmanuel testified that he is a neighbor of the parties and that Rwabagabo was employed by John Frederick Kyamatuku in 1970 as herdsman after which he brought his family including the parties to stay with him on the suit land.

It was further his testimony that his father gave the 1st plaintiff a cow which the plaintiff sold and used to buy the suit land from Kyamatuku in 1980.

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He said the plaintiffs remained with their father on the suit land until their father's death without any claims until early 2010 and 2011 when the defendants started claiming ownership.

He stated that the 1st defendant forcefully constructed on the suit land at night. Under cross examination PW3 stated that he was not there when the plaintiffs bought the suit land and that at the time the agreement was made the parties' father was alive.

### Documents

Exh P1 a & b - agreement dated 16/06/1980 reveals that John Frederick Kyamatuku sold his land at Kakibaya to Kasana James and Malidadi Fred at Ug.shs 300,000/- to be paid in three installments and they had paid 170,000 ug.shs.

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The agreement further shows the 1st appellant and the name of Fred Malidadi as buyers while on the other hand there is a signature purportedly for Kyamatuku (just the signature) and the name Jovanisi Kyamatuku but thumb print as vendors of the land.

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-Exh P2A which is a receipt dated 16/06/1980 headed SAAFI SAANA ENTERPRISES reveals that Kasana James and Malidadi Fred Paid Ug.shs 170,000 as deposit for a piece of land. The receipt further shows a signature purportedly for Kyamatuku in respect of the purchase agreement dated 16/06/1980.

-Exh P2B which is also receipt dated 28/07/1980 headed SAAFI SAANA ENTERPRISES -it reveals that Kasana James and Malidadi Fred paid ug.shs 60,000 in respect of land purchased. The receipt still had the same signature purportedly for Kyamatuku in the purchase agreement dated 16/06/1980.

-Exh P2C which is also receipt dated 30/10/1970 headed SAAFI SAANA ENTERPRISES reveals that Kasana James and Malidadi Fred paid ug.shs 70,000 as final payment of land sold. The receipt further had the same signature purportedly for Kyamatuku in the purchase -agreement dated 16/06/1980.

-Exh P3 which is a free hold certificate of title to the land, comprised in Muruka of Kakinga, Gombola, Kebisoni, Kigezi District, Plot No.62, Block 20, measuring 26.4 acres registered in the names of John Frederick Kyamatuku c/o p.o.box226, Mbarara, registered on 26/04/1968 at 2.30 pm under instrument no. KAB.4370.

-Exh P4 and P5 dated 18th July, 1994 reveals that the vendor John Frederick Kyamatuku signed transfer forms and the application for consent to transfer the suit land in favour of the appellants. $\mathbb{S}$ $\mathbb{C}$

-Exh P6 dated 2nd February 2012 reveals that the RDC's office wrote to the LC1 Chairperson- Kakibaya village to the effect that he received a complaint against the plaintiffs/appellants by their brother, sisters and nephew to the effect that they refused to give them a share in their father's land.

### The evidence of the Defendants/Respondents

The defendants/(respondents) adduced and relied on the testimonies of five witnesses and 01 documentary evidence and they are as follows;

DW1 Ainebyona Godfrey Faida (1st Respondent) testified to the effect that the plaintiffs are his uncles while the $2^{\text{nd}}$ , $3^{\text{rd}}$ and $4^{\text{th}}$ defendants are his uncle and aunts respectively. He further testified that he was born and grew up on the suit land. That the suit land belongs to his grandfather Rwabagabo who acquired it by way of purchase in 1980 from Kyamatuku.

DW2 Merabu Busana Byamugisha (3rd defendant) testified to the effect that the plaintiffs are her biological brothers and in 1970 Kyamatuku gave their father Rwabagabo land where he settled his family but their father did not work for Kyamatuku. She further testified that their father bought the suit land from Kyamatuku at Ug.shs 300,000/- and that the agreements and receipts were forged by the plaintiffs.

DW3 Henry Kasanga (2nd Defendant) testified that the suit land belongs to their father Rwabagabo and have lived there since 1980 and that he was born and grew up on the suit land and that the plaintiffs forged the agreements and receipts.

DW4 Shallot Niyonshaba (4th Defendant) testified that the suit land belongs to the family of Rwabagabo and they lived on it since 1980 and that the agreements and receipts relied upon by the plaintiffs were forged.

DW5 Atuhaire Florah testified that the plaintiffs and 2nd defendants are her uncles while the $1^{st}$ , $3^{rd}$ and $4^{th}$ defendants are her cousin and aunts respectively. That they have lived on the suit land for over 25 years and that the suit land has a permanent house, coffee and banana plantation and gardens belonging to the defendants.

It was also alleged to have demolished houses of her grandfather -Rwabagabo and tombs of the departed relatives of Rwabagabo. The defendants' claim to the suit land is rooted the fact of being beneficiaries of the estate of Rwabagabo. She further testified that in 2011 the family sat, including the parties and neighbors to divide the estate but it was not done.

#### Documents.

-DE1 which is minutes of a family meeting, dated 02/04/2011, reveals that the beneficiaries were to be given their shares on the suit land and that Kasana (1st plaintiff) was to effect the same being the next of kin.

### **Evaluation of the case**

Before delving into the nitty-gritty of this matter, this court is cognizant of the following legal principles governing appeals.

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- 1. It is the duty of the first Appellate Court to re-evaluate the evidence as a whole and decide whether or not the decision of the lower court can be sustained , as it was held in D. R. Pandya Vs Republic [1957] E. A. 336 - 2. It is the duty of the Appellate Court to make its conclusion bearing in mind that the Appellate Court did not have the opportunity to observe the demeanour of witnesses as they testified in the lower Court as per Fredrick Zaabwe Vs Orient Bank & 5 Others, Supreme Court Civil Appeal No.4 of 2006.

Now bearing in mind the above principles, I will begin with the preliminary point of law raised by Counsel for the Respondents to the effect that ground 1, 2 & 4 as appearing on the memorandum of appeal are not precise and concise and are vague and as such offend Order 43 Rule 1(2) of the Civil Procedure Rules. The appellants' Counsel did not file a rejoinder to that effect.

It is settled law under Order 43 Rule 1 (2) of the Civil Procedure Rules, S. I 71-1 and I shall reproduce hereunder:

### "...that memorandum of appeal shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively."

I have carefully perused and scrutinized the contents of the impugned memorandum of appeal and clearly the grounds 1 and 2 of the of appeal are vague, argumentative and the replica of ground 3 & 4 in my opinion and I would have considered striking them out but in the interest of justice I shall not strike them out but shall reconstruct and consider them in view of the real points of contention of the parties.

From the grounds of the appeal the learned trial Chief Magistrate is being faulted for;

- 1. Finding that the defendants/respondents were born and brought up on the disputed land unchallenged until the demise of their parents who died in 1978 and 2008 respectively whereas not. - 2. Finding that when court visited locus it found that everyone lives on the suit land including the plaintiffs and siblings whereas not.

- 3. Declaring that the suit land formed part of the estate of late Aslem Rwabagabo hence dismissing Civil Suit No.36/2016. - 4. Failing or ignoring the facts that: - The suit land belonged to John Frederick Kyamatuku $i)$ - $ii)$ By the sale agreement date 16/06/1980 the said John Frederick Kyamatuku sold the suit land to the plaintiffs/appellants - the said John Frederick Kyamatuku duly signed consent transfer forms iii) - there was no evidence of sale of land between the orginal freehold owner $iv)$ (John Frederick Kyamatuku) and the late Aslem Rwabagabo - The late Aslem Rwabagabo had no interest in the suit land and as such it $v)$ did not form part of his estate.

### Ground 1

It was argued for the appellants that the learned trial Magistrate was wrong to find firstly that defendants/respondents were produced and brought up on the disputed land unchallenged until the demise of their parents who died in 1978 and 2008 respectively whereas not

I have perused the records in relation to the testimonies of both parties. What is clear is that both the plaintiffs and the defendants started to occupy the suit land from 1970 when late Rwabagabo- came with his children -the plaintiffs and 2-4th defendants on the suit land and the 1st defendant who is a grandchild of Rwabagabo was born on the suit land.

The 1st defendant who testified as DW1 to the effect that he was born on the suit land in 1983 whereas PW1, PW2, PW3, DW2-DW5 all point to only one thing -that the parties save for the 1st defendant who was born on the suit land, all started staying on the land as a family from 1970.

Clearly it was misdirection on the part of the learned trial Magistrate to find that all the Respondents were born and grew up on the suit land. It was only the 1st defendant DW1 who; according to the evidence on record was born on the suit. However, the learned trial Magistrate was correct in finding that the defendants occupied the suit land unchallenged until after the death of their parents and the year was between 1996 and 2008 respectively. $\mathbf{1} \mathbf{1} \mathbf{3}$

. Therefore, Ground 1 fails. ## Ground 2

Upon perusal of the proceedings at *locus in quo*, on page 41-43 what it is clear that the suit land is occupied by gardens belonging to the $3^{rd}$ and $4^{th}$ respondents. It further reveals that there were banana and coffee plantations belonging to the Respondents and a house built by the 1st respondent. The said record of proceedings further reveals that there was a tomb of late Rwabagabo, the father to the plaintiffs, 2-4th defendants and grandfather of the $1^{st}$

What the appellants seek to challenge here, in my opinion is proof of possession especially in respect of the finding by the learned trial Magistrate in respect of trespass and I will deal with that issue hereafter. Possession needs not be only physical but also control. It is clear on the record that the defendants have gardens of coffee and bananas and a house which they constructed on the suit land and those are proof of possession. Clearly both parties are in possession of the suit land. This court finds no reason to fault the findings of the learned trial Magistrate at the locus in quo as the same is clear and consistent with the testimonies of both parties which are on the record. Therefore, ground 2 of the appeal fails as well.

## Ground 3 & 4

I have joined ground 3 & 4 in as far as they relate to the issue as to who between the appellants and late Aslem Rwamagabo bought the suit land from late John Frederick Kyamatuku and whether the suit land formed part of the estate of late Aslem Rwabagabo.

It is not disputed by both parties that the suit land previously belonged to John Frederick Kyamatuku and the same was exhibited in a certificate of title in his name. Certificate of title is conclusive proof of ownership unless challenged for fraud and other legal exceptions listed under the Registration of Titles Act. The title of the original vendor was not challenged by any of the parties.

## Who, between the appellants and late Aslem Rwamagabo bought the suit land from late John Frederick Kyamatuku? **ICK**

Section 101 of the Evidence Act provides that the burden of proof is on he who alleges and it is trite law that the standard of proof in civil matters is on the balance of probabilities.

I have perused the records in respect of the testimonial and documentary evidence, looked at the pleadings of both parties on the record of the lower Court. PW1, the 1st appellant testified to that he and the $2^{\mbox{\tiny{nd}}}$ plaintiff/appellant purchased the suit land from late John Frederick Kyamatuku in 1980 and executed an agreement to that effect but failed to effect transfer of title into their names since the late Kyamatuku had suffered froma stroke.

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PW2, who is the surviving spouse of late Kyamatuku confirmed stated that she witnessed the agreement of sale between Kyamatuku and the Appellants. The Appellants supported their claims with the sale agreement which was duly executed and witnessed which indeed reveals that they purchased the suit land.

The appellants further adduced three receipts which were also exhibited to the effect that they paid the purchase price of shs 300,000/in three installments. Defendants/Respondents did not challenge this agreement save for their allegations of fraud as per the written statement of defence in paragraph 5.

Allegations of fraud are serious and once raised it must be proved and the standard is more than the balance of probability but not beyond reasonable doubt. The respondents only alleged fraud in the form of forgery but led no evidence to prove the same.

It was argued for the respondents that the said receipts reflecting the name of a company called SAAFI SAANA ENTERPRISES lacked elements of a contract, the company being a legal entity and not Kyamutuku. With due respect to Counsel for the Respondent receipts are meant to serve as proof of payment and as such the issue of validity of a contract cannot apply. The receipts were exhibited to support proof of consideration in respect of a transaction (land in the instant matter).

Furthermore, whereas the receipts reflect the company name, there is a signature on it and evidence was led by the appellants to that effect that the said signature belonged to Kyamatuku and the defendants/Respondents did not challenge this. The said signature has been consistent in the agreement, the three receipts, the duly signed transfer form and application to transfer. Moreover, it is very unlikely for one to have transfer form duly signed and the certificate of title at the same time unless for theft or forgery of the same. The Respondents led no evidence to that effect or demonstrated to Court how the plaintiffs/Appellants came into possession of the certificate of title of late Kyamatuku.

In view of the foregoing, I see no better conclusion based on evidence, reason and presumptions than that of a transaction of sale of land between the late John Frederick Kyamatuku and the plaintiffs as the vendor and purchasers of the suit land respectively. The

learned trial Magistrate was wrong to find that PW2 was not credible being the wife to late Kyamatuku and as such her testimony required corroboration. PW2 was the only surviving witness and she testified based on her personal knowledge about the land transaction. Additionally, there was corroboration from the testimonies of PW1 & PW3 and documentary evidence and the learned trial Magistrate wrongfully ignored. It is therefore my finding that the plaintiffs (now appellants have proved on the balance of probability that they purchased the suit land from late John Fredrick Kyamatuku.

## Whether the suit land formed part of the estate of late Rwabagabo.

I have already found that there was a transaction of sale of land between the late John Frederick Kyamatuku and the plaintiffs as the vendor and purchasers of the suit land respectively and that there was no evidence of the said transaction between late Rwabagabo and late Kyamatuku as claimed by the Respondents/Defendants. In order for the property (ies) to form part of the estate of the late Rwagabo, there must be proof of interest in that property whether legal (registered) (emphasis is mine) or equitable interest as the case may

Upon perusal of the pleadings and submissions for the Respondents, it is clear that the other limb of their claim is based on their long stay on the suit land and the learned trial Magistrate based her finding for the Respondents under the principle of bonafide occupants which I will address hereunder.

After addressing the issue of bonafide occupancy enshrined in Section 29 (2) of the Land (Amendment) Act, I will also address other legal concepts though not addressed by the learned trial Magistrate or stated by the defendants or respondents but are similar to bonafide occupancy especially on the basis of a period of 12 years or more (long stay). These other legal concepts include adverse possession and the limitation period under section 5 of the Limitation Act, Cap.80. $\mathbb{H}^1_{\{k\}}$

- 1. Bonafide occupancy. This concept is provided for under Section 29 (2) of the Land Act. It requires the following elements for one to successfully rely on it: - a) A person who before coming into force the 1995 constitution; - b) Had occupied and utilized or developed any land; - c) Was not challenged by the registered owner or his/her agent - d) For 12 years

Or in Section 29 (2) (b) had been settled on the land by the government or its agents and it includes local authority.

In the instant matter it is not disputed that the defendants/respondents have been in possession of the registered land of late Kyamatuku in since 1970. The bond of contention by the appellants in as far as bonafide occupancy is concerned are that they have been in possession unchallenged by the registered owner from 1970 to the period prior to 8th October 1995 when the 1995 Constitution came into force. However, it is on record that in 1980 late Kyamatuku sold his land and Court found that the sale was between the said Kyamatuku and the plaintiffs/appellants (unregistered interests). The Appellants became the new owners of the suit land with unregistered/equitable interests. Once title of a registered proprietor has been recognized then the time stops running and as such the Respondents' 12 years period stopped running in 1980 when the registered owner late Kyamatuku sold his land and it is 10 years period between 1970-1980 and not 12 years. It is clear that the Respondents also recognized the title of the registered owner that is Kyamatuku and as such they could not claim that they occupied the land unchallenged by the registered owner. The principle of bonafide occupancy would have applied if the suit was between the late Kyamatuku or his estate and the Respondents but he sold his interests and the interests were not registered and it cannot be held that the appellants who bought the suit land from Kyamatuku are his agents so as to bring the matter under bonafide occupancy.

In her judgment dated 24th November, 2021 page 4, the learned trial Magistrate found that the appellants had registered interest while the defendants unregistered interests. This was clearly a misdirection on her part. What is clear on the record is that it was and still late John Frederick Kyamatuku as registered owner of the suit land while the parties on the other hand claim unregistered interests. Therefore, the learned trial Magistrate's finding therefore to the effect that the respondents were bonafide occupants was made in error and on a misdirection that the appellants had registered interests on the suit land whereas not. The learned trial Magistrate in page 5 1st and last lines further found that the Defendants' interests on the suit land is derived from their father late Rwabagabo who occupied the land and produced all the defendants in that place including the plaintiff. This was not proper as cogent evidence on record clearly shows that the Appellants purchased the suit land and as such it did not form part of the estate of late Rwababgabo. $\mathbf{1} = \mathbf{1}$

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$\sim$ $\frac{1}{2}$ $\mathcal{H}_2\mathcal{W}$ $\sim 1$

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It is therefore my finding that the Respondents were not bonafide occupants on the suit land and they (Respondents) did not derive ownership of the suit land from late Rwabagabo as it did not form part of his estate.

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- 2. Adverse possession. This concept in simple terms means a stranger to land can claim ownership if he or she has been in exclusive possession thereof for 12 years or more. It differs from bonafide occupancy in that, in an adverse passion is not limited to the period prior to the coming into force of the 1995 Constitution as in the case with bonafide occupancy. One has to prove the following to establish a claim in adverse possession: - a) Possession of the whole part of the registered land not only part of it - b) Possession must be to the exclusion of all others including the registered owner, in other words the possession must be hostile against the whole world. - c) The adverse possessor must have entered the land as an intruder or if with consent but possession must be open and hostile against the owner and as such knowledge of such hostile possession by the registered owner is of paramount consideration. $\mathbf{v}$ $\mathbf{v}$ - d) The possession must have been for 12 years or more.

Upon perusal of the records of proceedings in respect of the testimonies of the appellants, respondents and their witnesses, it is clear that the parties occupied the suit land from 1970 with knowledge of the registered owner, Kyamatuku Aslem who sold the suit land in 1980. These mean three things; firstly, that none of the parties stayed on the suit land exclusively as they stayed on distinct portions. Secondly, none of parties entererd the suit land as intruders since they all entered into possession in 1970 with the consent of the proprietor. Thirdly, the Respondents do not claim the whole land but rather beneficial interest in it as according to them it formed part of the estate of late Rwamagabo. Without prejudice to the Court's finding that the suit land did not form part of the estate of late Rwamagabo, the Respondents' evidence alone clearly reveal that they do not claim the suit land exclusively against the Appellants but as beneficiaries and according to them the plaintiffs/appellants are beneficiaries. These therefore means that the respondents don't claim the suit land exclusively to the exclusion of the appellants/plaintiffs. Therefore, a claim by the Respondents also based on adverse possession would fail.

3. Limitation (extinctive possession). Section 5 of the Limitation Act, Cap 80 is to the effect that no action shall be brought to recover land after the expiration of 12 years

from the date on which the cause of action arose. In effect this concept is used as a defense to an action brought to recover land but not as a sword (basis of claim). When successfully proven the action filed after the expiration after such period of 12 years or more must be dismissed and the concept is that strict unless the suit is filed under disability, which particulars have to be clearly stated in the pleadings. Section 5 applies only to actions for recovery of land (proprietary interests) not possessory interests (tort of trespass to land). $\mathcal{L}$

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According to the record, Civil Suit No.036/2016 was filed on 14th October, 2016.

The question then is when did the cause of action accrue? Upon careful studying of the records, the court finds that the since both parties have been in possession of the suit land then the cause of action arose not in 2012 as the appellants allege but rather in 1980 when they bought the suit land from late Kyamatuku. The appellants ought to have taken legal actions by filing a suit against the Respondents at that time or rather expressly made the interests of the Respondents clearly known by for instance , reducing the same into writing.

They did not do so but slept on their rights until 2016 when they filed civil Suit No.036/2016 against the Respondents and this was clearly about 35 years' time frame. They did not bring their suit under the exception of disability as required by Order 7 Rule 6 & order 18 Rule 13 of the Civil Procedure Rules. Order 7 Rule 11 of the Civil Procedure Rules requires a plaint to be rejected if bared by limitation without pleading disability.

Statutes of limitation are so strict in nature and the only way out is to bring an action within the period of 12 years or bring it under the exception of disability and must be specifically pleaded in the plaint. The Court of Appeal in Iga Vrs. Makerere University (1970) EA 65 held that a plaint barred by limitation must be rejected. Court cannot ignore an illegality once brought to its attention. Therefore, the Appellants' Civil Suit No.036/2016 was bared by the statutes of limitation and as such their claim had become stale and unenforceable against the respondents/defendants and or their successors in title. The claim should have been rejected by the learned trial Magistrate without going into the merit of the matter.

Before taking leave of this appeal I would like to address the cause of action as enshrined in the plaint and the written statement of defence in as far as the learned trial Magistrate was faulted for declaring that the defendants were not trespassers on the suit land being beneficiaries of the same.

The Court clearly observes that the appellants' claims in the trial court sought for among others are for declaration of ownership and for declaration that the defendants/respondents were trespassers.

Trespass to land occurs when a person directly enters upon another person's land without permission and remains thereon, places or projects any object upon the land. (Salmond and Heuston on law of torts, 9th edition (London: sweet & Maxwell, (1987) 46). A claim of this nature is an action for enforcement of possessory rights where if remedies are to be awarded the plaintiff must prove possessory interest in the land as an action in trespass can only be instituted by an owner in exclusive possession. An action in trespass serves only to protect the possessory interest not necessarily ownership interest in land from unlawful interference, Therefore, in action for trespass what is sought to be protected is the right to possession from violation and not challenge title/ownership.

The plaintiff must demonstrate that he or she has been in actual and exclusive possession and control of the land. The entry by the defendant onto the plaintiff's land must be an unauthorized, meaning that the defendant should not have had any right to enter onto the plaintiff's land.

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In order for the plaintiff to succeed, he or she must prove that;

- $\checkmark$ He or she has been in possession at the time of the defendant's entry; - There was an unauthorized/unlawful entry by the defendant; and - The entry occasioned damage to the plaintiff.

From the evidence on record none of the parties have been in exclusive possession of the suit land. The appellants and the respondent all confirm to have entered into possession of the suit land in 1970 when they migrated to the place. Both parties also agree that in 1980 the late Kyamatuku sold his land as to whom the appellants claim to have bought it as such their sole property whereas the 2nd to 4th defendants contend that it their late father Rwabagabo bought it. The record from the locus in quo puts both parties in possession, Therefore, if both parties were in possession of the suit land then a claim based on trespass cannot be sustained. It is my finding that the appellants' claim is based on recovery of land and not on tort of trespass. Therefore, the finding of the learned trial magistrate to that extent is correct, there was no trespass. $\mathbb{R}^n$

I fault only the reasoning of the learned trial Magistrate in finding no trespass on the basis of the suit land forming part of the estate of the late Rwabagabo for which the defendants derive their claims on the principle of bonafide occupancy, whereas not.

I have found that all the grounds of the appeal fail for the reasons stated.

lin any case the orders of the learned trial Magistrate should have been upheld but this court having faulted the learned trial Magistrate based on law and facts as already stated obviously the orders have to be substituted. Consequently, the judgment and orders of the trial court dated 24th November, 2021 set aside and substituted with the following orders:

- 1. The appeal is disallowed; - 2. It is declared that Civil Suit No.36/2016 was barred by limitation - 3. The suit land is the property of the appellants. - 4. Due to limitation of time, the appellants cannot evict the respondents from the suit - 5. The appellants should allocate to the respondents the portions of land on which they have been utilizing for their survival. - 6. No orders are made as to costs in both this court and lower court.

Either party aggrieved and dissatisfied with the court's decision may appeal.

Delivered at Rukungiri this......9th ..... day of.......... March......... 2023 in the presence of both parties and in the presence of their Counsel.

HON. JUSTICE TOM CHEMUTAI **JUDGE**