Kato Paul Nakabale v Kiggundu Kizza (Civil Appeal 128 of 2023) [2025] UGHCLD 71 (15 May 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL No.128 OF 2023**

**(Appeal from Chief Magistrate court of Entebbe vide Civil Suit No.009 of 2021)**

**KATO PAUL NAKABALE ::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**KIGGUNDU KIZZA ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

#### *Introduction;*

1. The Appellant brought this appeal against the respondent appealing against the decision of His Worship Stella Okwaong Paculal Senior Principal Magistrate Grade one, in Civil Suit No. 009 of 2021 by which judgment was entered in favor of the respondent for orders that; the access road was not privately/exclusively owned by the plaintiff/appellant, the impugned access road is public and is to serve all the adjacent plots of land including both the plaintiff and the defendant, a

declaration that the defendant is not a trespasser on the suit access road, a permanent injunction restraining the plaintiff and his agents from blocking the impugned access road, general damages of Ugx 4,000,000 are awarded to the defendant/respondent and costs of the counter claim are awarded to the defendant/respondent.

#### *Background;*

- 2. Briefly in the lower court, the appellant sued the respondent for trespass on his land comprised at Namugonde Zone, Kakindu LC1 Katabi Entebbe Municipality, a permanent injunction against the respondent, general damages and costs of the suit. - 3. That on the 21st May 2017, the plaintiff purchased a plot of land next to that of the defendant and an access road was shown to him in the said purchase agreement. - 4. Sometime in 2021, the plaintiff/appellant started blocking the access road on grounds that the said access belonged to him as his private property by depositing materials and erecting a perimeter wall at the end part of the road something that denied the defendant access to his plot of land.

- 5. The respondent/defendant's case in the lower court was that on the 24th of May 2016, the defendant purchased a portion of land at Kakindu, Katabi Town Council Wakiso district and proceeded to construct a residential house thereon facing the south served by the access road on the eastern wing. - 6. A year later the appellant/plaintiff purchased the adjoining plot of land which was served by the same access road as the defendant. - 7. Sometime in 2021 the appellant started blocking the access road by depositing there on building materials and erecting a parameter wall something which denied the defendant access to his plot of land. - 8. On the 18th of February 2021, the defendant sought intervention from the LC1 leaders about the said conflict, an agreement was amicably reached and signed by both parties that the two persons would share the same access to their respective plots, however plaintiff brought a suit for trespass against the defendant. - 9. The Trial magistrate entered judgment for the respondent and awarded the reliefs mentioned earlier. - 10. Being dissatisfied with the said decisions, the appellant appealed on the following grounds;

- *i) That the Trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to a wrong conclusion that the access road is not privately owned by the appellant.* - *ii) That the trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to a wrong conclusion that the access road is public and serves all the adjustment plots of land including the respondent which occasioned a miscarriage of justice.* - *iii) That the Trial magistrate erred in law and fact when she held that the respondent is not a trespasser on the suit land.* - *iv) That the Trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record when she failed to conclusively resolve the issues of duress as per the agreement dated 18th of February 2021 which occasioned a miscarriage of justice to the appellant.*

- *v) That the learned Trial magistrate erred in law and fact when she awarded the respondent excessive damages of Ughs 4,000,000 without any legal basis.* - *vi) The learned Trial magistrate erred in law and fact she granted costs of the counter claim to the respondent.*

#### *Representation;*

11. At the hearing of the appeal, the appellant was represented by M/S Mujurizi & Tumwesigye Advocates whereas the respondent was represented by M/S F. X Ogwado & Co. Advocates. Both parties proceeded by way of written submissions which this court considered in the determination of this appeal. In arguing the appeal, counsel for the appellant addressed grounds 1,2 & 4 together then addressed grounds 3,5 & 6 separately

#### *Duty of the appellate court;*

12. 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)*

- 13. 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**. - 14. 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*. - *15.* 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;*

16. Section 80(i) of the Civil Procedure Act Cap.71 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.

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

## *Grounds 1,2 & 4;*

- i) That the Trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to a wrong conclusion that the access road is not privately owned by the appellant. - ii) That the Trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to a wrong conclusion that the access road is public and

serves all the adjustment plots of land including the respondent which occasioned a miscarriage of justice.

- iii) That the Trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record when she failed to conclusively resolve the issues of duress as per the agreement dated 18th of February 2021 which occasioned a miscarriage of justice to the appellant. - 17. Counsel for the appellant submitted that **Section 101(2)** of the Evidence act is to the effect that when a person is bound to the existence of any fact, it is said that the burden of proof lies on that person, further Section 103 of the same act states that the burden of proof as to any particular fact lies on that person who wishes the court to believe the existence, unless it is provided by the law that the proof of that fact lies on that particular person. - 18. Counsel stated that the appellant proved on the balance of probabilities that the access road was for his plot alone since the respondent's land is neighboring the main road through the evidence of PW1 Dr. Ssebamala Joseph, who testified that the agreement showed the private access road between him and the appellant, PW2(appellant herein) who was part of the

memorandum of understanding between the respondent and the neighbors regarding the said access road testified that he was coerced by the respondent to sign the said reconciliation agreement.

- 19. Counsel for the appellant further submitted that DW1 Nakabugo Immaculate testified that the respondent's land had an access to the main road and it was only the appellant's land that did not have direct access to the main road. - 20. In reply counsel for the respondent submitted that DW1 Nakabugo Immaculate informed court that both the appellant and his wife were present when the memorandum of understanding regarding sharing of the access road by both the appellant and the respondent was signed by all the parties. - 21. Counsel further submitted that DW2 Kiggundu Kizza who owned two plots adjacent to the appellant and respondent's land testified that the person who sold to the appellant his plot of land was invited during the arrangements regarding the said access where he clarified to both the appellant and the respondent that none of them purchased the access road but it was a public access for all adjoining plots and that the appellant was estopped from

going against the position as agreed in the said memorandum of understanding.

- 22. I take note of the submissions made both counsel, the gist of grounds 1,2 and 4 is whether the Trial Magistrate said the access road was privately owned by the appellant or not? - 23. Upon perusal of the land sale agreement marked PEX1 between the appellant and a one Sebamala John, it indicates that the appellant purchased land measuring 50ftx50ftx54ftx46ft only and there is an arrow outside the sketch map of the land the appellant purchased indicating that there exists an access road. There's no term in the said agreement indicating that the appellant purchased the said Kibanja with the access road but rather the agreement speaks to only the Kibanja and not the access road. - 24. Further in the memorandum of understanding that was reached at between the neighbors of the adjacent plots together with the appellant and the respondent before the LC 1 of Kakindu where the appellant together with his parents were present and signed the said agreement, it was agreed that all the neighbors together with the respondent were to use the said access road to access their plots.

- 25. The appellant alleges that he was showed the access road at the time of purchase however the said access road is not within the dimensions of the appellant's land. The fact that the appellant was shown that here is the access road doesn't infer ownership of the said access onto him. Had the access been part of the appellant's Kibanja then it would have been part of the sketch map of the appellant's land but as it is one would ask himself why would there be an understanding between the neighbors together with the appellant and respondent before the LC1 regarding an access road that formed part of the appellant's Kibanja, the findings of the said memorandum of understanding give this court an impression that the said access road was not the appellant's private property. - 26. The allegations of duress are not backed by any evidence at hand apart from the fact that the appellant testified that he was coerced to sign the said memorandum of understanding. Courts of law are guided by evidence, law and facts to reach a just finding not mere assertions. - 27. Had the said access road formed part of the appellant's land, as the plaintiff in the lower court he ought to have adduced evidence

to that effect, the Evidence Act states that the burden lies on that person who desires court to make a finding in his favor.

- *28.* Its trite that a fact is said to be proved when the court is satisfied as to its truth and the general rule is that the burden of proof lies on the party who asserts affirmative of the issue or question in dispute *(See; Jovelyn Barugahare vs Attorney General, SCCA No. 28 of 1993)* - 29. The appellant/plaintiff in the instant case had the evidential burden to show that there existed sufficient evidence that the said access road belonged to him privately. - 30. In the absence of any evidence to prove that the said access road belonged to the appellant as his private property, I find the allegations of miscarriage of justice to be misplaced. in the instant case the Trial Magistrate reached the proper finding based on evidence, facts and the sounding principles of law.

Therefore, grounds 1,2 and 4 are resolved in the negative.

## **Ground 3: That the Trial Magistrate erred in law and fact when she held that the respondent is not a trespasser on the suit land.**

31. Counsel for the appellant submitted that the Trial Magistrate erred in law and fact in holding that the respondent was not a

trespasser over the said access road which privately belonged to the appellant. Counsel relied on the decision in **J. M Lutaaya vs Stirling Engineering Co. Supreme Court Civil Application No. 011 of 2002** to establish trespass against the respondent.

- 32. In reply, counsel for the respondent submitted that the appellant/ plaintiff failed to adduce any credible or admissible evidence to prove that the said access road belonged to him as private property which he owned to the exclusion of others. - 33. It's trite that the law on trespass has been elucidated upon by the **Supreme Court in JM Lutaaya vs Sterling Engineering Co(Supra)** where court held that for one to be a trespasser the following should be proved; - *i) That the disputed land belonged to the plaintiff* - *ii) That the defendant entered upon it* - *iii) And that the said entry was unlawful and without the permission and knowledge of the plaintiff.* - 34. In the instant case, upon the resolution of grounds 1,2 and 4 where this court was of a finding that the said access road did not form part of the private Kibanja owned by the appellant.

- 35. There cannot be said to be trespass where the land in dispute did not belong to the person who alleges the same, the appellant is bound by the terms of the sale agreement of the said Kibanja which agreement only mentioned the dimensions of the appellants Kibanja. The arrow the appellant tends to rely on was only a sign indicating that there exists an access road outside the appellant's Kibanja, there was no any term in the said agreement relating to the access road and how the appellant had purchased the said Kibanja together with the access road. - **36.** Imputing trespass against the respondent for using a public access road amidst the finding that the said access road did not belong to the appellant as his private property would not only be defeating the entire concept of trespass but shaming the Hon. Justices of the Supreme Court in **J. M Lutaya vs Stirling engineering co (Supra) as well.** - **37.** I do not find any miscarriage of justice occasioned by the trial magistrate in holding that the respondent was not a trespasser on the said access road. Therefore, ground 3 is resolved in the negative.

# **Ground 5; Whether the learned Trial Magistrate erred in law and fact when she awarded the respondent Ugshs 4,000,000 as general damages without any legal basis.**

- 38. Counsel for the appellant submitted that the trial magistrate erred in law when she awarded the respondent general damages without considering the fact that the appellant owned the said access road as his property and that the said award should be set aside by this court. - 39. Counsel for the respondent in his submissions in reply stated that the respondent adduced overwhelming evidence to the effect that he had no means to access his plot and from the time the said access road was blocked by the appellant and his construction works stalled causing the respondent mental and psychological distress necessitating the award of the damages. - *40.* It's trite that the appellant court has no jurisdiction to interfere with an award of damages unless the trial court reached the same based on wrong principles or the award is unreasonably high or low. *(See; Uganda wildlife Authority vs Kuluo Joseph Andrew Civil Appeal No.03 of 2011)*

- *41.* In the instant case, the trial magistrate in her judgment awarded the respondent herein who was the defendant/counter claimant general damages of Ughs 4,000,000 on grounds that the respondent suffered mental anguish and distress since he was blocked from using the said access road by the appellant. - *42.* The appellant did not adduce any evidence necessitating this court to interfere with the said award, as an appellate court, I will only interfere with an award of general damages if the same is said to be unreasonably high or low or awarded on erroneous legal principles. - *43.* In the absence of the mentioned factors, this court is of the finding that an award of Ughs 4,000,000 as general damages was justified, hence ground 5 is resolved in the negative.

# **Ground 6; whether the learned Trial Magistrate erred in law and fact when she granted costs of the counter claim to the respondent.**

44. Counsel for the appellant submitted that had the trial magistrate considered the entire evidence on record, she would not have the decision she did and as such this court be pleased to set aside the orders of the Trial Magistrate.

- 45. In response, counsel for the respondent submitted that costs follow the event as stated under Section 27 of the civil procedure act and that costs are naturally awarded to the successful party. - 46. Its trite that an award of costs is discretionary in nature as per **Section 27 of the Civil Procedure Act** and the essence of costs is to compensate the successful party for part of the loss incurred in litigation and costs are not meant to favor a successful party. - *47.* An appellate court has the competence to review an award of costs awarded in the lower court where the appellant who was the loser in the lower court succeeds at appeal *(See; Asiimwe Allen*

#### *Vs Hajji Salongo Katende CA N.32 of 2020)*

- *48.* In the instant case the appellant challenges the order of costs without any legal basis and I find that the award of costs by the trial magistrate was justified at trial. Therefore, ground 6 is resolved in the negative. - *49.* The conclusion of this court is that the trial court correctly arrived at its conclusion when it decided in favor of the respondent/defendant in its judgement. - *50.* In the premises, the instant appeal stands dismissed by this court without any orders as to costs.

**I SO ORDER**.


#### **NALUZZE AISHA BATALA**

#### **AG. JUDGE**

### **15TH /05/2025**

### **Delivered electronically via ECCMIS on the 15th day of May**

**2025.**