Kawamara v Karubanga (HCT-01-CV-LD-CA 8 of 2023) [2024] UGHC 1087 (14 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – CV – LD – CA – 008 – 2023 (ARISING FROM KYEGEGWA KJJ – 008 – CV - LD – 0013 OF 2017) KAWAMARA WILSON::::::::::::::::::::::::::::::::::::::::::::: APPELLANT** 6 **VERSUS KARUBANGA APPOLLO :::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA** 9 **JUDGMENT Introduction:**

- 12 This judgment is in respect of the appeal against the trial judgment and orders of Her Worship Taremwa Martha, Magistrate Grade One at Kyegegwa delivered on 2 nd January 2023. - 15

# **The Case of the Respondent in the Trial Court:**

- 18 The Respondent originally sued the appellant and another, for trespass to land; a declaration that the Respondent was the owner of the suit land; a permanent injunction; an order of eviction; general damages and costs of the suit. The other - 21 party settled the matter with the respondent through mediation. It was the case of the Respondent that from 1989 to 1993, he allowed the 1st appellant to temporarily cultivate on the suit land. The appellant left the suit land in 1993. In 2012, without - the consent of the Respondent, the 1st 24 appellant returned on the suit land.


# **The Case of the Appellant in the Trial Court:**

The 1st 3 appellant contended that he acquired his portion of the suit land by way of first occupancy in 1989 and built a home and settled there with his wife. He enjoyed quiet possession till 1993 when the Respondent started claiming interest.

# **Decision of the Trial Court:**

- 9 The trial court found in favour of the Respondent with the following orders: - (1)The respondent was the rightful owner of the suit land. - (2)The defendant was declared a trespasser. - 12 (3)An eviction order issued against the appellant. - (4)Costs of the suit were awarded to the respondent.

# 15 **Grounds of Appeal:**

- **(1)The Learned Trial Magistrate erred in law and fact when she declared the appellant a trespasser.** - 18 **(2)The Learned Trial Magistrate erred in law and fact when he declared the respondent the rightful owner of the suit land.** - **(3)The learned Trial magistrate erred in law and fact when she entertained** 21 **a suit that was barred by limitation.**

**(4)The learned Trial Magistrate erred in law and fact when she believed the evidence of the respondent other than the unchallenged evidence of the** 24 **appellant.**


#### **Representation and Hearing:**

- 3 **Mr. Businge A Victor** appeared for the appellants while **M/s Rwabwogo & Co. Advocates** appeared for the Respondent. Both counsel argued the appeal by way of written submissions. - 6

### **Submissions for the Respondent on a Point of Law:**

- 9 The grounds of appeal are to general and offend Order 43 rule 1 and 3 of the Civil Procedure Rules which emphasize that grounds of appeal should be precise and concise. In *Katumba Byaruhanga v Edward Kyewalabye Musoke, Court of Appeal* - 12 *Civil Appeal No. 2 of 1998 (1999) KALR* 621 it was emphasized that court should not allow general grounds of appeal that allow parties to go on a fishing expedition. Court should strike out ground 1 and 2 for offending Order 43 rule 1 and 3 of the - 15 Civil Procedure Rules. Mr. Businge did not counter this submission.

#### **Decision:**

Order 43 rule 1(2) of the Civil Procedure Rules provides that: *The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the*

- 21 *decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively.* In *National Insurance Corporation v Pelican Services, Court of Appeal Civil Appeal No. 05 of 2003* court adopted the position - 24 in *Supreme Court Civil Appeal No. 31 of 1995, Sietco v Nobble Builders (U) Ltd*


where court observed that: "*Grounds of appeal must challenge a holding, a ratio decidendi and must specify the points which were wrongly decided*."

In this case, the 1st and 2nd grounds contested by the Respondent were framed as:

- *1. The Learned Trial Magistrate erred in law and fact when she declared the* 6 *Appellants trespassers.* - *2. The Learned Trial Magistrate erred in law and fact when she declared the Respondent the rightful owner of the suit land.* - 9 The above grounds appear general and do not pin-point the trial courts' alleged errors. I agree with the submissions of learned counsel for the Respondent that these grounds are general and if permitted can be a vehicle to be used by the appellant to - 12 go on a fishing expedition. I thus strike out the same from the memorandum of appeal. I will thus consider the 3rd and 4th grounds of appeal.

#### 15 **Submissions for the Appellant:**

The trial Magistrate did not evaluate the evidence on record especially as regards the 18 appellant occupying the suit land from 1989 un-interrupted till to date. If the learned trial magistrate had considered such evidence and that of DW1 and the contradiction in the testimonies of PW1 and PW2, she should not have declared the appellant a 21 trespasser.

With respect to the third ground, the suit by the Respondent was barred by limitation 24 having been brought outside the 12 years provided for under Section 5 of the Limitation Act. The evidence of the appellant and that of the Respondent indicated


that the appellants had been on the land for over 23 years. As such the suit was barred by limitation and ought to have been rejected by the trial magistrate.

#### **Submissions for the Respondent:**

- 6 In respect to the third ground, the Respondent was categorical and pleaded that the alleged trespass started in 2012 when the appellants forcefully entered the suit land. The suit was filed in 2017 which was within the 12 years under section 5 of the - 9 Limitation Act.

In response to the 4th ground, the learned trial magistrate rightly considered all the 12 evidence on record. The appellant raised contradicting versions as to the manner of acquisition of the suit land. The first was that the land was acquired as a gift intervivos from the Respondent and later that the same was acquired by first 15 occupancy from 1989. When court visited locus it only found a grass thatched house of about a year. The trial Magistrate could not believe his evidence which was full of contradictions. The court properly evaluated the evidence.

#### **Duty of this Court:**

- 21 As the first appellate court, my duty is to subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to my own conclusion. *(See: Father Nanensio Begumisa& 3 others vs Eric Tiberaga SCCA* - 24 *17 of 2000 [2004] KALR 236)*. I am duty bound to do a re-evaluation of the evidence on record of the trial court as a whole weighing each party's evidence, keeping in


mind that as opposed to the trial court, I had no chance of seeing and hearing the witnesses testify to assess their demeanor and consistency. *(See: Uganda Breweries*

3 *v Uganda Railways Corporation 2002 E. A)*

#### **Pleadings and Evidence of the Respondent:**

In the plaint, the Respondent pleaded that the appellant was his friend. In 1989, the appellant requested and was allowed to cultivate on the respondent's land for 4 9 seasons so that the appellant could raise money to buy his own land. After the 4 seasons, the appellant left the land in 1993. That to the respondent's surprise, the appellant returned in 2012 and forcefully and without the respondent's consent, 12 entered on the land and resumed cultivation.

*PW1 (Karubanga Apollo)* aged 75 years testified that the appellant was his nephew. 15 In 1966, PW1 got land measuring about 10 acres, for free, from his elder brother. The appellant had no land. In 1998, PW1 gave the appellant about 2 acres of land for free. The appellant used it for only 3 years and left. In 2012, the appellant 18 trespassed on the suit land, which the respondent had inherited from his father, and started selling it. The respondent sued the appellant in LC11 Court and won. *PW2 (Bitarukumara Alifunsi)* aged 89 years testified that the respondent was his brother 21 and uncle to the appellant. That he knew the suit land. The respondent gave the appellant land where to construct a house on the suit land. That after constructing, the appellant stayed on the suit land. When the appellant wanted to shift, he wanted

24 to sell the land but the respondent refused.


#### **Pleadings and Evidence of the Appellant:**

- 3 In the written statement of defence, the appellant pleaded that he acquired the suit land by first occupation in 1989 and settled there with his wife after constructing a grass thatched house. He cultivated the land and planted a banana plantation, mango - 6 trees, pawpaw and other crops. He enjoyed quiet possession until 1993 when the respondent started claiming the suit land. - 9 *DW1 (Kawamara Wilson)* aged 55 years, testified that he entered the suit land as first occupant in 1989 when nobody was on the land. He put avocado, mangoes, banana plantation and built a house thereon and produced children and 12 grandchildren. The dispute arose when the respondent sued him in LC11 where the decision was issued without his knowledge and he could not appeal because he learnt of it after a long time. *DW2 (Agaba Charles)* aged 54 years, testified that the land 15 belonged to the appellant because he occupied it in 1989 after finding the same vacant.

#### 18 **Decision:**

# **Ground 3: The learned Trial magistrate erred in law and fact when she** 21 **entertained a suit that was barred by limitation.**

Section 5 of the Limitation Act limits the time within which to commence actions 24 for recovery land to 12 years from the date the cause of action accrued. Section 11 adds that the time starts to run from the time the person is dispossessed of his or her


land. Section 25 of the Act however provides for instances where time may be postponed and these include fraud or mistake, which must be plead in the plaint (See:

- 3 *Nyombayabo v Bundibugyo District Local Government (Civil Suit No. 8 of 2020) [2023] UGHCCD 108 (20 March 2023*). - 6 In examining the question as to whether a suit is barred by limitation, reference should be made to the plaint and the annexures thereto (See: *Nyombayabo (supra*). This position was elucidated in *Ababiri Muhamood & 4 others Vs. Mukomba* - 9 *Ananstasia T/a Taita Wilfred,HCCS No. 22 of 2015*, where it was observed that: "*I would agree with plaintiff's counsel that for matters of time and rights to sue, the Court is bound to consider15the pleadings of the plaintiffs alone. It may well be that* - 12 *the defendant has in their defence, raised facts that would support the argument that the case is time barred or has no cause of action but those are facts still in contention and subject to litigation. The authorities appear to strongly support the principle* - 15 *that the Courts hould only consider the plaint and its attachments, and nothing more."* - 18 In the present suit, it was pleaded by the Respondent under paragraph 4(b), that the cause of action against the appellant arose in 2012 when he trespassed on his land. This places the Respondent's claim within the 12 years under section 5 of the 21 Limitation Act. Therefore, ground 3 fails.

**Ground 4: The learned Trial Magistrate erred in law and fact when she** 24 **believed the evidence of the respondent other than the unchallenged evidence of the appellant.**


The respondent in his pleadings claimed that he had given the appellant the land as 3 a friend in 1989 to use for only four seasons and the appellant left in 1993 and only come back in 2012 to trespass on the same. In his evidence, he gave a different account. He stated that he gave the appellant free land as his nephew in 1998 and but 6 the appellant stayed there for only three years and left. That he had given the appellant free land to own, which the appellant had left, and now wanted to take his. The respondent further contradicted himself that the appellant wanted to take the 9 land he had inherited from his father and left the one he gave him for free to own. The respondent also stated that the appellant wanted to sell the land he gave him and also the land of the respondent that he had encroached upon. PW2 who came to 12 support PW1 also come up with a completely different version of events. He stated that the respondent had given the land to appellant where to construct a house and when the appellant wanted to shift, the appellant wanted to sell the suit land which 15 the Respondent refused. The case of the respondent presented grave contradictions between his pleadings, his evidence, and that of PW2. The contradictions in the evidence of the respondent as presented in court, heavily watered down the claim by 18 the Respondent as stated in the plaint. Further, the sketch map drawn by the trial Magistrate indicated that there was an old structure and a new one of about a year belonging to the appellant. There were also developments on the land by the 21 appellant who was in possession of the same. Possession of the land is *prima facie* evidence of ownership and the law always protects the right to possession. If someone is in possession and is sued for recovery of that possession, the plaintiff 24 must show that he or she has a better title. If the plaintiff does not succeed in proving title, the one in possession gets to keep the property, even if a third party has a better


claim than either of them (See:*Ocean Estates Ltd v. Pinder [1969] 2 AC 19 & Adrabo Stanley v Madira Jimmy, HCCS No. 0024 OF 2013*). I therefore agree with

- 3 learned counsel for the appellant that the learned trial magistrate did not properly evaluate the evidence on record and the contradictions in the evidence presented by the Respondent. This ground therefore succeeds. In a nutshell, this appeal succeeds - 6 with the following orders; - **1. The judgment and orders of Her Worship Taremwa Martha, Magistrate Grade One, Kyegegwa Magistrate's Court in Kyegegwa Civil Suit No.** 9 **013 of 2017 are hereby set aside.** - **2. The Plaintiff/Respondent failed to prove his claim against the appellants and his suit is hereby dismissed.** - 12 **3. A declaration is hereby issued that the appellant Kawamara Wilson is the lawful owner of the portion of the suit land of which he is in possession that was the subject of this dispute.** - 15 **4. The appellant is awarded costs in the High Court and the court below.**

**I so order.**


- 18 Vincent Wagona **High Court Judge FORTPORTAL** - 21 **DATE: 14/11/2024**