Kasande & 4 Others v Ssentamu (Civil Appeal 52 of 2022) [2024] UGHCLD 217 (11 September 2024)

## **THE REPUBLIC OF UGANDA**

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

## **(LAND DIVISION)**

## **CIVIL APPEAL No.052 OF 2022**

## **(Appeal from Entebbe Chief Magistrate Court Civil Suit No.122 of 2009)**

- **1. ROBERT KASANDE** - **2. ROBERT SERUNJOGI** - **3. ZERIDA VUBYA** - **4. NABUKALU VUBYA**

# **5. NDAGIRE VUBYA :::::::::::::::::::::::::::::::::::::::::::: APPELLANTS VERSUS**

## **PROF. JOHN DDUMBA SSENTAMU :::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT.**

## *Introduction;*

**1.** Robert Serunjogi, Robert Kasande,Zerida Vubya, Nabukalu Vubya and Ndagire Vubya herein after referred to as Appellants brought this appeal against prof. John Ddumba Ssentamu herein after referred to as the respondent against the decision of Her Worship Kabugho Elizabeth, Magistrate Grade one Entebbe Chief Magistrate's court in Civil Suit No.122 of 2009 delivered on the 08th day of June 2022, by which judgment was entered in favour

of the Respondent (Plaintiff in the lower court) against the appellants (Defendants in the lower court) for; orders that the respondent /plaintiff's purchase and acquisition of the suit land comprised in Busiro Block 427 Plot 164 was not fraudulent and illegal, that the appellants/defendants were not bonafide or lawful occupants on the suit land and an eviction order from the suit land against the appellants/defendants.

## *Background;*

- 2. At the lower court, the respondent sued the appellants for trespass on the suit land comprised in Busiro Block 427 Plot 164 at Mangulu, an eviction order against the appellants, a permanent injunction restraining the appellants and their agents from any further trespass on the land, mesne profits, general damages and costs of the suit. - 3. Briefly, the respondent's case was that he is the registered proprietor of all land comprised in Busiro Block 427, Plot 164 at Mangulu and that immediately after the registration, the respondent took possession of the suit land. The 1st appellant after without any color of right and title whatsoever started constructing a permanent structure on the same land and the 2nd -5th

appellants started cultivating on the respondent's land without his consent claiming to be lawful or bonafide occupants.

- 4. The interest of the 1st appellant is neither known by the previous owner of the suit land nor the neighbors and local council area authorities, the 2nd -5th appellants' claim as bonafide and lawful occupants is baseless since the suit land initially belonged to the late Suzan Muyinda Buyana who gave a Kibanja interest to the late Vubya Semwogerere who constructed a house thereon from whom the 2nd -5th appellant's claim their title. - 5. After the death of the late Suzan Muyinda Buyana, she was succeeded by the late Namakula Irene who also recognized the late Vubya Semwogerere's Kibanja interest as per the will. Subsequently the 2nd -5th appellants with assistant from the Lugave clan elders and local council authorities of the area, they were allowed to survey off 1 (one accre) of land by Nalongo Norah Namakula (administrator of the estate of the late Namakula Irene) and the surveyed land is comprised in Busiro Block 427 Plot 165 neighboring the respondent's land.

- 6. The respondent purchased the suit land from Nalongo Norah Namakula (the administrator of the late Namakula Irene) free from any encumbrances or third party claims. - 7. The appellants/defendants case in the lower court was that the 1st appellant is a bonafide occupant on the suit land upon holding a kibanja thereon which he purchased from one Eri James Lule who was the former owner of the same kibanja having derived the same from the late Irene Namakula's land formerly comprised in Block 427 Plot 59 which is now Plot 164 as per the sales agreement. - 8. The 2nd -5th appellants/defendants contend that they are some of the children and beneficiaries of the estate of the late Vubya Semwogerere who was a lawful occupant on part of the suit land as a kibanja holder of about 2.5 acres and by a counter claim in the lower court, the appellants aver that they have been lawful owners and occupants of the kibanja on the suit land measuring about 2.5 acres which by themselves or by their predecessor in title have occupied for over 40 years. - 9. Unknown to the appellants, the respondent purportedly purchased a mailo title over the appellant's kibanja interest without consulting them, much as they had capacity and will to

purchase and or negotiate to acquire the same mailo title. The appellants prayed for orders that as children of the late Vubya Semwogerere they are lawful occupants and that the respondent's purported purchase of the suit land was fraudulent and illegal, cancellation of the respondent's title and an order that the appellants be given first option to purchase.

- 10. The trial court entered judgment for the respondent and awarded the reliefs mentioned earlier. - 11. Being dissatisfied with that decision, the appellants appealed against the said decision on the following 5 grounds, namely; - i) The learned trial Magistrate failed to properly evaluate evidence on record thereby reaching a wrong conclusion allowing the respondent's claim and dismissing the appellants' counter claim. - ii) That the learned trial magistrate erred in law and fact in finding that the appellants were not lawful or bonafide occupants on the suit land. - iii)That the learned trial magistrate erred in law and fact in finding that the suit kibanja belonging to the late

Ssemwogerere Vibya was measuring only one acre composed of the family house.

- iv) That the learned trial magistrate erred in law and fact in finding that the suit kibanja belonging to the late Ssemwogerere Vubya was measuring only one acre composed of the family of the family house. - v) That the learned trial magistrate erred in law and fact in finding that the appellants/ family of the late Ssemwogerere Vubya was not entitled to the first option before the respondent's purported purchase and acquisition of the suit land. - Vi) That the learned trial magistrate erred in law and fact when dismissing the appellants' counter claim with costs.

## *Representation;*

12. At the hearing of the appeal, the appellants were represented by counsel Harriet Anna holding brief for Ambrose Tebyasa of M/S Ambrose Tebyasa & Co. Advocates while the respondent was represented by counsel Brian Kabafunzaki of M/S Tumusiime, Kabega & Co. Advocates. Both counsel filed written submissions which this court has relied upon in the determination of this matter.

13. In arguing the appeal, counsel for the appellants addressed grounds 2 & 3 together then addressed grounds 4 & 5 and lastly grounds 1 & 6 together.

## *Duty of the appellate court;*

- 14. This being a first appeal, this court is under an obligation to rehear the case by subjecting the evidence presented to the court below to a fresh scrutiny and re-appraisal before coming to its own conclusion. *(See***;** *Nanensio Begumisa and three Others vs Eric Tiberaga SCCA 17 of 2000).* - 15. It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions, the nature of this duty was put more appropriately in **Selle vs Associated Motor Boat Co. [1968] EA 123**.

- 16. An appeal is by way of retrial and the principles upon which this Court acts in such an appeal are well settled, briefly put they are; *that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect*. - **17.** In particular this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. *(See; Abdul Hameed Saif*

#### *Vs Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)*

#### *Power of the appellate court;*

18. Section 80(i) of the Civil Procedure Act grants the High Court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate court shall have the power to determine a case finally. The appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and

imposed by the act on courts of original jurisdiction in respect of suits instituted in it.

#### *Resolution and determination of the grounds of appeal;*

- 19. In arguing grounds 2 and 3 of the appeal, counsel for the appellant submitted that he disagrees with the finding of the learned trial magistrate and contended that has she properly evaluated the evidence on record and subjected the same to the law, she must have found that the respondent's purchase and acquisition of a certificate of title over the suit land was tainted with illegality and fraud. - 20. Counsel further submitted that the respondent who testified as PW1 at the trial court stated that he is the owner of the suit land comprised in Busiro Block 427 Plot 164 situate at Mawugulu and that he was registered as the owner of the same land as per the certificate of title(PEx1) and that according to PW1 evidence in cross examination at page 21 of the record of proceedings he stated he never bothered to find out the state of the suit land before he purchased the same and that it was not his concern to know the use of the suit land for the past 5 years before purchasing it. - 21. PW1 further informed court during cross examination at page 22 of the record of proceedings that he never found out from the two neighbors to the suit land who owned the suit kibanja but instead went to the two LC's who are far away about one and half kilometers from the suit land and the same respondent never bothered to inquire from the family members of the late vubya yet in his evidence he confirmed that they were immediate neighbors sharing the boundary with the suit land as evidenced at page 40 of the record of proceedings. - 22. It is the evidence of Pw2(Norah Namakula) the person who sold the suit land to the plaintiff in her testimony in chief at page 46 of the record of proceedings that she visited locus the land which she sold to the respondent, on the first plot there was the late vubya as a kibanja holder other than vubya no one else and that the family of the late Vubya was cultivating on a portion on the suit land of the respondent. - 23. Further counsel for the appellants submitted that DW1(Nakitende Zeridah Vubya) through her evidence at page 66- 71 of the record of proceedings testified that the late Vubya her father had a kibanja on the suit land where he built there on and

that the respondent never consulted the appellants or any family members of the Vubya family about the ownership of the suit land which testimony was corroborated by evidence of DW2(Robert Serunjogi) and DW3(Margaret Ndagire)

- 24. Counsel for the appellants relies on the decision in *Yusuf Mweseki Vs Kajubi James HCCA No.9 of 2008* where court made a finding that the appellant was or is entitled to the first option to purchase the suit land as a tenant by occupancy under the provisions of section 35(2) of the land act and submitted that the respondent refused to consult the people who were occupying and using the suit land. Further counsel relied on the position in *Fredrick Zabwe vs Orient bank SCCA No.04 of 2006* to impute fraud on the respondent on his actions. - 25. In reply counsel for the respondent submitted that the respondent's purchase of the suit land was lawful and in the testimony of PW1 (the respondent stated that he conducted a search about the suit land at the land registry where he did not find any encumbrances on the suit land and proceeded to inquire from the LC1 authorities about the suit land where he was

informed of a one Nalongo and one Robert Kasande who were Bibanja holders on the suit land and they were all paid off.

- 26. The respondent testified during the court locus visit as evidenced at page 85 of the record of proceedings that he put mark stones on the land which he purchased and the same stones were removed and he showed court the land he purchased from Norah Namakula. He further testified that at one point a son to the third appellant came to his home and requested to purchase the land on which the son's kiosk was occupying. It was the evidence of DW4 during trial that two people were buried on the same land but he did not know the names of the said people. During locus as evidenced at page 87 of the record of proceedings, court established that the said graves were not visible and were not part of the suit land as alleged by the appellants. - 27. Counsel for the respondent further submits that the appellants are not kibanja holders on the suit land and were not on the suit land at the time of purchase, the known kibanja holders were settled and fully compensated by the respondent.

**Analysis by court;**

- 28. I take note of the provisions of the law, precedents and submissions made by both counsel in arguing grounds 2 and 3 of this appeal for which I grateful appreciate. - 29. I am alive to the position of the law stated in section 35 (2) of the land act as amended which speaks to the option to purchase and the owner of land who wishes to sell the reversionary in the land shall give the first option of buying that interest to the tenant by occupancy. - 30. Before proceeding to determine whether the appellants were entitled to the first option to purchase or not, this court will first ascertain whether indeed the appellants were kibanja holders on the suit land or not as per the record of proceedings. - 31. The gist of grounds 2 and 3 rotates around the aspect whether the late Vubya Hannington had a kibanja measuring one acre on the suit land or not, which kibanja the appellants are claiming to form part of the respondent's land entitling them to the option of first purchase from the previous owner. - 32. It is the evidence of the respondent who testified as PW1 during trial in the lower court as evidenced at page 22 of the record of proceedings that he visited the LC authorities before purchasing

this land to find out about the owners of the land and he was not told about the appellants' interests and when inspecting the land he saw two houses on the neighboring side of the land where he was told by the seller that there is one acre of land where one house sits which belonged to the appellants and the respondent did not go to the said land.

- 33. The respondent(PW1) further testified in his cross examination by counsel for the appellants as evidenced at page 39 of the record of proceedings that he initially bought Block 427 Plot 59 which was later changed to Plot 164 and after the purchase, one acre remained which was not part of what he bought. - 34. During trial, it was the testimony of PW2(Norah Namakula) who sold the land to the respondent at page 46 and 47 of the record of proceedings that she visited the land which she sold to the respondent and the late Vubya Hannington was given one acre of land by her late father for him to build a house where he could live. She further testified that it was like someone saying to his child to build there and it was her evidence that when selling to the respondent, the 1(one acre) given to the late Vubya was not part of the land she sold to the respondent.

- 35. PW2 during trial further testified as evidenced at page 48 of the record of proceedings that she recognizes the 2nd, 3rd, and 4th appellants as children of the late Vubya Hannington and that the part of the land she sold to the respondent did not have anyone occupying it and did not include the 1 acre that belonged to the late Vubya Hannington. - 36. In the evidence of DW 1(Nakitende Zerida Vubya) during trial at page 67 of the record of proceedings she testified that their late father informed them that the kibanja was given to him by our grandfather (Susan Muinda) and he proceeded to construct a house there on. - 37. In the testimony of DW2(Robert Serunjogi) in the lower court at page 74 of the record of proceedings he stated that he is the heir of the late Semwogerere Hannington Vubya and that the house on the one acre originally belonged to the late Hannington Semwogerere and the same house is occupied by my brothers and sisters (the appellants). - 38. Further DW4(Wasswa Peter Walugembe) testified during trial as evidenced at page 77 of the record of proceedings that he knows the dispute is about the kibanja which kibanja belongs to the late

Semwogerere Vubya, the Kibanja had a house with tiles and we even buried some people on the kibanja, the house is still on the kibanja and he proceeded to state during cross examination by counsel for the plaintiff (respondent herein) that the disputed land has burial grounds which still exist there.

- 39. The trial court conducted a locus visit of the suit land on the 13th of January 2022 as shown at page 82-89 of the record of proceedings, PW1(the respondent) ably showed court the land and the boundaries of the same land that he purchased which land had a kiosk and the house, the respondent stated that he did not know the owner of the kiosk and DW3 stated that he owns the house which he constructed in 2019. - 40. PW1(respondent) further testified that at the time of purchase the said house was not on the land. In the evidence of PW1 (the respondent) at locus that the remaining upper part is the one being occupied by the late vubya family. - 41. DW1 testified during locus that it is that day when she came to know of the boundaries of the land the plaintiff claims and that she cannot show court the location of the one acre since the one who was supposed to show them refused to, DW4 testified that

there are two people buried on the land one is a sister to the late Vubya and the other a grandchild to the late Vubya.

- 42. At the said locus visit, court observed that the graves were not on the land in dispute accordingly the boundaries of the suit land showed to court by the plaintiff and the house on the suit land was a new house. - 43. Court further observed that in between the suit land and the land containing the home of the late Vubya (on the upper part/road to Garuga) was an old boundary mark in the form of "mpaanyi" plant and at the south of the home of the late Vubya was a separation of cultivation on the lower part from the upper part - **44.** For one to claim to be a lawful occupant of a certain piece of land, he she needs to prove the same fact on a balance of probability that they lawfully settled on the land*. (see; Prince*

## *Keefa Wasswa vs Joseph Kiyimba H. C. C. S 482 OF 2011)*

**45.** The law on lawful occupants as stated under section 29(1) of the land act as amended is to the effect that; "*Lawful occupant" means— (a) a person occupying land by virtue of the repealed—(i) Busuulu and Envujjo Law of 1928; (ii) Toro*

*Landlord and Tenant Law of 1937; (iii) Ankole Landlord and Tenant Law of 1937; (b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or (c) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.*

- **46.** In the instant case, the appellants suggest to be lawful occupants of a kibanja on the suit land entitling them to the option of first purchase of the said land before being offered to the respondent for purchase. - **47.** A simple review of all the evidence adduced during the appellants'/defendants' case and during the locus visit by court, the evidence on record suggests that the kibanja land which the appellants claim to be the one that belonged to their late father is different and distinct from the suit land which the respondent purchased. - **48.** As persons who claim to be lawful occupants of the land, during the locus visit the appellants ought to have ably and clearly proved to court the kibanja land that they are claiming to be part of the suit land which the respondent purchased and show court how they have lived on the same land ever since the 1940's. it was to the court's dismay during the locus visit where DW1 stated that it is on the day of the locus that she got to know of the boundaries of the suit land yet she stated in her evidence in chief that they had been cultivating on the same land in 2007.

- **49.** The respondent rightly identified and showed court the land which he purchased and stated that at the time of purchase the land was bushy which fact is supported by the evidence of the person who sold to him the same land, at locus court found that the land had a house and a small kiosk which house appeared to be new and DW4 clearly stated that he was the one who constructed the house in 2019. - **50.** It appears to me that the appellants failed to really prove to court that they were lawful occupants of a kibanja which formed part of land that the respondent purchased but rather they focused on the narrative of "first option as to purchase the land" not taking into consideration that for the said narrative to come to life, one ought to lead evidence as a tenant by occupancy but in situations where a person has not led evidence to show that indeed

he is a tenant by occupancy on the said land then the option of first purchase as stated in the land Act will not be available to him or her. In the instant matter there was no any reversionary interest in the suit land to require the seller to give the first option of purchase to the appellants.

**51.** Therefore, having examined grounds 2 and 3, the same are resolved in the negative.

## **Resolution and determination of grounds 4 and 5;**

- 52. Counsel for the appellants submitted that the learned trial magistrate holding that the kibanja interest of the late vubya was measuring only one acre and that the appellants were not entitled to the first option to purchase the registered mailo interest over their kibanja before the sale transaction between the respondent and the former owner was erroneous and contrary to the position of the law. - 53. It was the submission of counsel for the appellants that he led cogent, credible and unequivocal evidence to prove that the appellants were not and are not trespassers on the suit land and that the land sold to the respondent had a kibanja interest of the late Hannington Vubya which existed from the early 1940's and

was not defined by the will of the late Namakula Irene who gave one acre of registered mailo interest to the heir of the late Semwogerere and in the same manner the late Susan Muyinda chose to give a kibanja interest to Vubya Semwogerere with defined boundaries and it was erroneous for the trial magistrate to rely on the will of the late Irene Namakula as a basis of ascertaining the size of the kibanja of the late Vubya when the will was subsequent to creation of the kibanja interest.

54. Counsel for the appellants further submitted that the appellants being children of the late Hannington Vubya Semwogerere and had a legitimate right to occupy and use the suit land and they qualify to be lawful tenants on the same land and by the time the respondent purchased the said suit land and acquired the certificate of title, his interest was subject to the existing interest of the appellants. The position of the law in the decision of the *Epafuladito Serwadda Vs Kasozi Stanley And Anor HCCS No.252 of 2009* by Justice Eva Luswata (as she was then) where she held that a tenant by occupancy cannot be evicted from land since she enjoys security of occupancy as stated under

section 31(31) of the land act which security can only be lost under section 31(7) of the same land act.

- 55. In reply counsel for the respondent submitted that the late Irene Namakula described the part of the land that she had bequeathed to Hannington Vubya Semwogerere and considering the distribution of the said land it is not practical that the appellants exclusively own the one acre bequeathed to them and also claim a kibanja interest on the land that was bequeathed to other beneficiaries. - 56. Trespass to land can only be committed against the person in possession, and the respondent has legal possession of the suit land as per the certificate of title of the suit land and in the decision in Nalongo Nalwoga Vs Salongo Kesi HCCA No.84 of 2012 - 57. Further the appellants being children of the late Hannington Vubya does not entitle them to the land given to Norah Namakula by Irene Namakula and other beneficiaries and that the learned trial magistrate rightly decided that the suit kibanja belonging to the late vubya measuring one acre on which the family house is situate and the appellants have no interest to require the priority to purchase the suit land.

## Analysis by court;

- 58. I will restate the determination and findings of grounds 2 and 3 in resolving the instant grounds. - 59. The evidence om record (testimony of PW1 and PW2) suggested that the land which was given to the late Vubya was 1 acre where he has a house there on where he lived, the said fact was supported by the testimony of DW1 where she stated that they have been living on the same land which land has a house that was built by her late father in the 1940's and that is the land that belonged to the late Vubya Hannington Semwogerere. - 60. The evidence on record suggests that the land where the house was situated is the land that belonged to the late vubya which land was not part of the suit land and land in dispute. It was the testimony of the defence witnesses that the land had burial grounds however during the court locus visit court established that the said burial grounds were not located on the suit land. - 61. There was no way the option of first purchase would be available to the appellants over land that they failed to lead evidence that the same belongs to them and that they were lawful occupants over the same land. The appellants had to lead evidence that their

kibanja interest in the suit land existed before the respondent purchased the same but rather the appellants led evidence as to the fact that their late father was given land which had a house that they occupied but the same land was not part of the suit land.

62. I stand by the findings of the trial magistrate on the same, therefore grounds 4 and 5 of the appeal are resolved in the negative.

## **Resolution and determination of Grounds 1 and 6;**

- 63. In arguing grounds 1 and 6 of the appeal, counsel for the appellants submitted that had the trial magistrate properly considered the circumstances under which the respondent acquired the suit land and relevant authorities she would have found that the respondent's purchase and registration of the certificate of title to the suit land was illegal for contravening the provisions of section 35 of the land act and fraudulent for the respondent's failure to conduct due diligence and or deliberately ignoring the actual and constructive notice of the interests in the suit land held by the Vubya family. - 64. Further counsel submitted that the respondent who had never had possession and or entitled to occupy and use the suit land

was not entitled to general damages for trespass and an order for vacant possession against the legitimate and lawful occupants of the suit land. The appellants sought for general damages of ughs 20,000,000 for suffering and inconvenience subject to them by the respondent however the lower court unreasonably refused to award the same when it dismissed the counter claim.

- 65. Counsel for the respondent argued that the respondent properly conducted due diligence before the purchase of the land and all persons with interests were properly compensated, the appellants led contradicting evidence as to the existence of graves whereas they did not exist. The appellants failed to prove their holding of the existence of a kibanja interest on the suit land. - 66. Counsel relied on the decision in *Prince Waswa Vs Joseph Kiyimba(supra)* where the court stated that "I have already found that the respondents were not the lawful owners of the suit kibanja they have failed to prove on a balance of probability that they settled on the land and neither did they offer any documentary proof to that effect. - 67. The trial magistrate dismissed the said counter claim on grounds that the main suit had succeeded in favor of the

respondent/plaintiff against the appellants/defendants who were the counter claimants.

- 68. The claim in the counter claim was dismissed because the appellants failed in their defence and it is on that basis that their claim as lawful occupants failed. The kibanja the appellants claimed to have been given to their late father was not part of the suit land that belonged to the respondent/plaintiff. - 69. As to award of costs, the position of the law is that costs shall follows the event and that to award costs or not lies in the discretion of the judicial officer. The trial magistrate found no reason to award the appellants claim in the counter claim and had the same dismissed. - 70. I am constrained to interfere with the finding of the trial magistrate as to costs and in the circumstances the same finding is upheld by this court. - 71. I have had the opportunity to examine, analyze and study the entire record comprised of testimonies and evidence of the parties as pointed out in the grounds in support of this appeal that I have fittingly resolved and determined. I am persuaded that the learned trial magistrate reached at its position and findings based on very

plausible legal principles and the learned trial magistrate arrived at her conclusions upon proper assessment of the evidence.

- 72. The conclusion and finding of this court is that the trial court correctly arrived at its conclusion when it decided Civil Suit No.122 of 2009 in favor of the respondent/plaintiff. - 73. In the result, the instant appeal fails and the same is hereby dismissed by this honorable court with no order as to costs.

# **I SO ORDER**.

## **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

### **11 th/09/2024**

### **Delivered on the 11 th of September 2024 electronically via**

## **ECCMIS.**