Kayondo v Kato (Civil Appeal 85 of 2018) [2023] UGHC 473 (9 March 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA SITTING AT MUKONO

### CIVIL APPEAL 85 OF 2018

# **IARISING FROM MUKONO CHIEF MAGISTRATE COURT CIVIL** SUIT NO. 106 OF 20131

IOHN. B. KAYONDO:::::::::::::::::::::::::::::::::::

#### **VERSUS**

KATO TOM::::::::::::::::: **RESPONDENT**

### BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

### **JUDGMENT**

### Background.

This Appeal stems from the judgment of Her Worship Ssemwanga Nalugya Mariam; at the Chief Magistrates Court of Mukono at Mukono wherein she entered judgment in favor of the Respondent.

The background of the Appeal is that: - the Appellant/Plaintiff instituted Civil Suit No.106 of 2013 against the Respondent claiming, among others for;

- a. A declaration that the plaintiff is the rightful owner of the entire suit Kibanja located at Kavule Mukono Municipality - b. A declaration that the defendant is a trespasser thereon; - c. Permanent injunction restraining the Defendant from further $a$ interference with the suit Kibanja;

**CERTIFY THAT THIS IS A TRUE COP**

- d. An eviction order: - e. General damages;

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- f. Costs for the suit; - g. Any other relief the court may deem fit.

In the suit, the Appellant /Plaintiff claimed that he is a bonafide occupant of the said Kibanja having purchased it from the late James Ssemwanga on 15<sup>th</sup> October, 1977 at a consideration of Ug. Shs. 2500 /= (Uganda Shillings Two Thousand Five Hundred only). That he utilized the suit land from the time of purchase uninterrupted until 2013 when the Defendant trespassed on the suit land and claimed a portion of 50 by 100 and denied the appellant further use of the same. He contended that the Defendant/Respondent had no legal or equitable interest over the above mentioned piece of land and his acts only intended to deprive the Plaintiff from quite enjoyment of the Kibanja.

The Defendant/Respondent on the other hand denied all the allegations of trespass and claimed that he is the registered proprietor of the suit land comprised in Kyaggwe Block 530 Plot 5 measuring approximately 0.093 hectares, land at Valley Avenue, Kavule Cell, Mukono Municipality having acquired it from James Namutale Kagoma since 2007. That he has been in physical possession since then without any 3<sup>rd</sup> party claims of equitable interest whatsoever. In paragraph 6 of the written statement of Defence he also contended that the Plaintiff did not have a cause of action against him and prayed for the suit to be dismissed.

At trial, the Appellant/Plaintiff relied on the evidence of three witnesses, that is: PW1; Kayondo John, the Plaintiff, PW2 Kato Patrick and PW3 Costa Kayondo, while the Respondent produced 5 witnesses that is DW1; Kato

Tom, the Defendant, DW2, Joseph Namutale, DW3; Anna Binayisa, DW4 Elizabeth Nanteza Nabeeta and DW5 Serwanga James

The issues for determination were:

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1. Whether the plaintiff lawfully owns a Kibanja on the suit land?

# 2. Whether the same was unlawfully alienated by the defendant? 3. What are the remedies available to the parties?

The Plaintiff/Appellant being dissatisfied with the Judgement of the lower Court rendered by Her Worship Ssemwanga Nalugya Mariam, Grade 1 Magistrate, on the 26<sup>th</sup> April 2018 filed an appeal.

The following are the grounds of Appeal;

- 1. The learned trial Magistrate erred in law and fact when she failed to properly scrutinize and evaluate the evidence on record and thus came to a wrong decision. - 2. The learned trial Magistrate erred in law and fact when she held that the suit was time barred. - 3. The learned trial Magistrate erred in law and fact when she failed to record the proceedings and rely on the evidence at locus visit which occasioned a miscarriage of justice. - 4. The learned trial Magistrate erred in law and fact when she failed to admit documentary evidence of the appellant on a mere technicality and thus causing a miscarriage of justice. - 5. The learned trial Magistrate erred in law and fact when she held that the appellant should have sued Stephen Kazibwe and not the defendant. - 6. The learned trial Magistrate erred in law and fact when she misconstrued the concept of bonafide occupant and thus coming to a wrong conclusion. THAT THIS IS A TRUE COPY


## Representation.

The Appellant was represented by Mr. Songon Waswa while the Respondent/Defendant was represented by Mr. Martin Mutata. Both parties filed written submissions. However, the Court record does not bear the Respondent's submission and yet the Appellant filed submissions in rejoinder to Respondent's submission. The Appeal had earlier been set for Judgement on the $22^{nd}$ February 2023. I will in the interest of expediency deliver the Judgment without considering the Respondent's submissions.

### Consideration of the Appeal.

In the cases of Seller vs. Associated Motor Board Co. [1968] EA 123; Bogere Moses & O'rs vs. Uganda, SC. Crim. Appeal No. 01 of 1997; and Kifamunte Henry vs. Uganda, S. C. Crim. Appeal No.10 of 1992; it was held that the duty of the first appellate Court is to subject the evidence to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it. In so doing, however, the Court has to bear in mind that it has neither seen nor heard the witnesses and should, therefore, make allowance in that respect. With that duty in mind, I proceed to consider the Appeal.

## Ground 2: The learned trial Magistrate erred in law and fact when she held that the suit was time barred.

This Court will deal with this ground of Appeal first which if determined in agreement with the Trial Court would dispose of the whole matter.

Counsel for the Appellant submitted that the claim before Court was premised on trespass to land and it's a continuing tort and therefore the suit was not time bared. He relied on the case of E. M. N Lutaya V Stirling Civil

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Engineering Company Ltd Civil Appeal No.11 of 2002 to fortify his arguments where Justice J. N. Mulenga stated that, where trespass is continuous, the person with the right to sue may, subject to the law on limitation of actions, exercise the right immediately after the trespass commences, or any time during the continuance or after it has ended. That a person who acquires a cause of action in trespass to land may prosecute that cause of action after parting with possession.

## **Analysis and determination:**

Section 3 of the Limitation Act, Cap 80 provides;

"3. Limitation of actions of contract and tort and certain other actions

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose-(a)actions founded on contract or on tort;

$(b)$ ........."

Trespass to land occurs when a person directly enters upon land in possession of another without permission and remains upon the land, places or projects any object upon the land (see Salmond and Heuston on the Law of

Torts, 19<sup>th</sup> edition (London: Sweet & Maxwell, (1987) 46). It is a possessory action where if remedies are to be awarded, the Plaintiff must prove a possessory interest in the land. It is the right of the owner in possession to exclusive possession that is protected by an action for trespass. Such possession should be actual and this requires the Plaintiff to demonstrate his or her exclusive possession and control of the land. The entry by the defendant onto the Plaintiff's land must be unauthorised. The Defendant should not have had any right to enter into Plaintiff's land.

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The Trial Court in its Judgement at page 3 had this to say;

"Secondly the evidence as adduced by the plaintiff shows that he was either displaced from the suit land or left it (if he ever occupied it) in 1994, a period of 19 years from 2013 when he filed this suit. In my view, this action that was *filed in 2013 is time barred in view of Section 3 of the Limitation Act."*

In the instant case the evidence on record shows that the Plaintiff was not in actual physical possession of the land when the alleged trespass occurred.

This Court observes from the Record of proceedings (unpaged), the proceedings of 23<sup>rd</sup> November 2015 PW1 – Kayondo stated during cross examination thus;

"I was in possession of the land from 1977 to 1994.... I bought it in 1977. The people who chased me away were other people I don't know them. Later the defendant came and stayed on the land. Yes, I reported to the LC but I don't remember the year. $...$ "

In my opinion, this action having been filed in 2013 is time barred in light of Section 3 of the Limitation Act. This Court having found as above will not delve into arguments on whether trespass is a continuing tort.

Scrutiny of the evidence presented for the Plaintiff and the declaration sought that he is the rightful owner of the land confirms that the nature of rights the Appellant/Plaintiff sought to enforce in the suit were of a proprietary nature rather than of a possessory nature, hence this was for all intents and purposes an action for recovery of land, which the Appellant contended he had been unlawfully deprived of by the respondent/defendant.



I have carefully perused the record of the Trial Court and the pleadings for both parties. In paragraph 3 of the plaint, the appellants stated their claim against the defendant; "is for declaration that the plaintiff is the rightful owner of the suit land measuring approximately 50 by 100 ft, general damages for trespass, an eviction order, permanent injunction restraining the defendant from further trespass and costs."

Section 5 of the Limitation Act provides that,

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

In the case of Ababiri Muhamood & Four Ors V Mukomba Anastansia & Another (Civil Suit No. 22 of 2015) [2019] UGHC 16 (15 May 2019) court referred to the case of Hajati Ziribagwa and Anor Vrs. Yakobo Ntate HCCS 102/09 where Justice Byamugisha (as she then was) held that "...since this was an action for recovery of land, the cause of action must have arisen at the date the defendant acquired the land..." By inference, a cause of action relating to recovery of land should accrue on the date that the plaintiff claims it was wrongly appropriated. This seems to be supported by Section 11 of the Limitation Act which states that, the right of action in land will not accrue unless there is adverse possession.

In the case Odyeki & Anor Vs Yokonani & 4 Ors (CIVIL APPEAL No. 0009 OF 2017) [2018] UGHCCD 50 (11 October 2018) it was held that;

"With regard to actions for recovery of land, there is a fixed limitation period stipulated by section 5 of The Limitation Act. This limitation is applicable to all suits in which the claim is for possession of land,



# based on title or ownership i.e., proprietary title, as distinct from possessory rights".

In the instant case it has been established that the Plaintiff was dispossessed of the land in 1994, having filed the suit in 2013 would therefore place him outside the ambit of 12 years. I find that the suit is time barred.

The Court will deal with ground 1 and 4 since they are closely knit together.

Ground 1: The learned trial Magistrate erred in law and fact when he failed to properly scrutinize and evaluate the evidence on record and thus came to a wrong decision.

Ground 4: The learned trial Magistrate erred in law and fact when she failed to admit documentary evidence of the appellant on a mere technicality and thus causing a miscarriage of justice.

Learned Counsel for the Appellant argued that the Appellant/Plaintiff gave testimony of a Sales Agreement which was presented before Court for inspection at page 13 of the record of proceedings but it was never relied on while evaluating the evidence which led to uninformed decision by the trial court. Counsel further contended that the consent memorandum presented in support of the said claim was equally ignored.

That the Plaintiff/the Appellant bought the suit Kibanja in 1977 and was in possession of the same measuring 50 by 100 feet from Ssemwanga and started occupying it immediately as per his testimony at page 12 of the record of proceedings.

Counsel further contended that the Defendant/Respondent bought the appellant's portion of land without giving him, the Appellant first priority to purchase. He fortified his arguments by quoting Section 35(2) of the Land Act. He contended that the sale was illegal and despite the illegality, the

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appellant was never compensated. He relied on the case of ACTIVE AUTOMOBILE & ANOTHER VS CRANE BANK & ANOTHER, Supreme Court Civil Appeal No.21 of 2001 to the effect that a contract entered in contravention of the law is null and yoid.

It is Counsel's contention that the Appellant presented an understanding between him and the Respondent for compensation signed before the LC.1 as per page 14 of the record of proceedings but the same was ignored.

He again alluded to the evidence given by a one Kato Patrick who was a signatory to the above understanding as a witness as per his testimony at page 22 of the record of proceedings at the LC.1 Court when the Respondent/Defendant failed to give the Appellant another piece of Kibania. Counsel argued that all this evidence clearly points to the fact that the Appellant was a Kibanja holder on the suit land.

Learned Counsel for the Appellant contended that, although the Respondent presented a Certificate of Title to prove his claim, he relied on the case of Molly & 4 Ors Vs Engineer Ephraim & Anor SCCA No.10 of 2018 where his Lordship Butera JSC had this to say about Section 59 of the Registration of Titles Act" it would be dishonest to allow the respondent to retain ownership of the suit property....... simply because the suit property was registered in his names. It was further held that Section 59 of the Registration of Titles Act was not intended by the legislature to cover dishonest dealings".

The Appellant Counsel prayed this Court to subject the entire evidence on record to an exhaustive scrutiny and quoted the case of **Muluta Joseph Vs** Katama Sylivano SSCA No. 11 of 2019.

12/03/2007

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In regard to ground 4 Counsel for the Appellant contended that failure to admit documentary evidence of the Appellant on a mere technicality thus caused a miscarriage of justice.

Learned Counsel for the Appellant submitted that the rule relating to admission of documentary evidence is provided for under section 60 of the Evidence Act which states that the contents of a document may be proved either by primary or secondary evidence and section 61 thereof defines primary evidence to mean the document itself produced for the inspection of Court. Counsel further relied on the provisions of Section 91 of the Evidence Act which is to the effect that, when the terms of a contract, grant and other disposition of property have been reduced to a form of document, no evidence shall be given in proof of the terms of that contract except the document itself. He contended that the document itself was presented in court but never admitted in evidence because there was no certificate of translation attached to it which position was and not backed up by any law.

Counsel invited Court to refer to section 80(d) of The Civil Procedure Act Cap 71 for the said proposition and allow the Appellant to tender his agreement as a Kibanja holder while invoking its powers to take further or additional evidence since the Appellant at the point of tendering was selfrepresenting as seen at page 12 and 13 of the record of proceedings, Counsel opined that Court should have been lenient and properly admit the document as Plaintiff's exhibit as the agreement was a crucial document.

### **Analysis and Determination**

Article 126 (2) (e) of the Constitution of Republic of Uganda, 1995 as amended, enjoins Courts to do substantive justice without undue regard to technicalities. This does not mean that Courts should not have regard to technicalities. But where the effect of adherence to technicalities may have

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 the effect of denying a party substantive justice, the Court should endeavor to invoke that provision of the Constitution. This was the position in the Supreme Court in Mulindwa Vs Kisubika Civil Appeal 12 of 2014.

The rules of evidence in my opinion cannot be termed as technicalities. The Evidence Act is a law which governs the various rules and regulations relating to the conduct of evidence in a court of law. The law deals with how one must prove a claim in Court, how the evidence is presented, how the Court will verify it and the various rules and regulations, including their relevance and acceptability. The provisions therein can therefore not be termed as mere technicalities.

It is also pertinent to note from the record that the Plaintiff was represented by Counsel at the start of the trial and opted to self - representation when his counsel did not turn up for his case for various reasons. However, Counsel for the Plaintiff availed his services as borne out by the record of proceedings, as submissions were filed by Counsel and the at the visit of locus in quo counsel was present. It was therefore duty of counsel to prepare the Plaintiff's case and address such gaps where documents were not translated or properly exhibited.

The refusal by the trial Magistrate to rely on the non-translated Sales Agreement and the Memorandum was not just a mere technicality but a legal requirement. In the case of Okwanga Anthony vs. Uganda [2001-2005] HCB 36 at 38 it was held that "there is a distinction between Exhibits and Articles marked for identification. The term "exhibits" should be confined to articles which have been formally proved and admitted in evidence". In the instant case, the Sale Agreement and the Memorandum were written in Luganda and the Appellant did not present a translated version of the documents meaning they could only be referred to as articles of identification and not exhibits.


It follows therefore that "once a document has been marked for *identification, it must be proved. A witness must produce the document and* tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case".

The document then becomes part of the Court record. If the document is not admitted into evidence as an exhibit, it only remains as hearsay evidence, untested and an unauthenticated account.

Under S.58 of the Evidence Act "all facts except contents of documents may *be proved by oral evidence"*. As earlier indicated in this judgment, while the appellant faults the trial Magistrate for ignoring the Sales Agreement and Memorandum, the said documents were only marked for identification and were never admitted in evidence. This is because they were never translated in English being the official language of Court.

This means that those documents were not part of the evidence before the trial Magistrate and therefore ought not to have been relied upon to arrive at any conclusion. I therefore find that; the trial Magistrate was right not to consider the said document since they were only placed on record for purposes of identification as such documents do not carry any evidential value.

Article 6 of the 1995 Constitution, makes English the official language of Uganda. Further, **Section 88** of the Civil Procedure Act provides that; the language of all Courts shall be English; evidence in all courts shall be recorded in English; and written applications to the courts shall be in English. Therefore, all annextures not written in English ought to be translated and will not be admitted in evidence unless translation has been obtained. I am persuaded by the decision in the case of Kings Collage Buddo Staff Saving Scheme Limited Vs Lukanga and Another Civil Suit

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No. 26 of 2020 and conversely hold that the trial Magistrate was right not to rely on identification documents as evidence of the Appellant or the Plaintiff. Grounds 1 and 4 therefore fail.

Ground 3: The learned trial Magistrate erred in law and fact when she failed to record the proceedings and rely on the evidence at the locus visit which occasioned a miscarriage of justice.

Learned Counsel for the Appellant argued that the purpose of visiting locus in quo is to essentially clarify on the evidence already in Court thereby enabling the trial Court understand the evidence better. That it is intended to harness the physical aspects of evidence in conveying and enhancing the meaning of oral testimony and therefore must be limited to an inspection of the specific aspects of the case as canvassed during the oral testimony in Court and testing the evidence on those points only. He faulted the trial Magistrate for failing to properly record physical evidence during locus visit and relied on the case of Oryema Mark V. Ojok Robert, HCCA No.13 of 2018 to beef up his arguments, in that case, Justice Mubiru Stephen held that, unlike oral testimony, physical evidence does not lie, does not forget, does not pursue self -interest unless manipulated or staged, physical evidence sits there and waits to be detected, evaluated, explained... Courts look at physical evidence and attempts to determine how it fits into overall scenario as presented in the contending versions. That had the trial Magistrate recorded the locus proceedings, she wouldn't have occasioned a miscarriage of justice since that evidence was not included in her evaluation of evidence.

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## **Analysis & Determination:**

From the above it seems to me that Counsel for the Appellant, faults the trial Magistrate for not recording the proceedings at locus and not relying on the evidence established at locus in quo.

Visits to locus in quo are governed by the Practice Direction No. 1 of 2007. Guideline 3 of the Practice Direction provides for the procedures on visits to locus in quo as follows; During the hearing of land disputes the Court should take interest while there, ensure that all parties, their witnesses, and advocates (if any) are present; allow the parties and their witnesses to adduce evidence at the locus in quo; allow cross-examination by either party or his/ her Counsel; record all the proceedings at the locus in quo and record any observation, view, opinion or conclusion of the Court, including drawing a sketch plan, if necessary.

In the case of Yeseri Waibi vs. Elisa Lusi Byandala (1982) HCB 28 at 29, it was held that 'the usual practice of visits to locus in quo was to check on the evidence given by witnesses.' Manyindo J. (as he then was) then outlined the procedure at visits to locus in quo thus:

"The trial Judge or Magistrate should make a note of what takes place at the locus in quo and if a witness points out any place or demonstrates any movement to the Court, then the witness should be recalled by the Court and give evidence of what occurred." Fernandes vs. Noronha (1967) EA 506 applied.

It was contended for the Appellant that the Trial Court did not record the proceedings; however, this position seems erroneous since the record of Proceedings at pages 46-48 shows what transpired at the locus visit.

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In the present appeal the persons that provided information at the locus in *quo* were not witnesses in the main trial.

The record shows that Kuwaza David, Serunjongi Edwin Muslim and Mukibi Twaha were examined. These persons were not witnesses in the lower court and to that extent the trial Magistrate erred.

This Court fortifies itself in the above finding with the decision of Odongo and Another Vs Ojera Civil Appeal No.53 of 2017, where Justice Stephen Mubiru held that, it was therefore erroneous of the trial Court while at the locus in quo, to have recorded the evidence of the three witnesses who had not testified in court.

Perusal of the Judgement of the lower Court shows that the evidence at the locus was not considered in evaluation of evidence and correctly so in my view. To that extent I find that the lower Court was correct when it did not consider the evidence at the Locus in quo.

Ground 5: The learned trial Magistrate erred in law and fact when she held that the Appellant should have sued Stephen Kazibwe and not the defendant.

The Appellant's Counsel submitted that its trite law that the Plaintiff can sue any person against whom he seeks relief and relied on the case of Major Ronald Kakooza Mutale Vs Attorney General HCMA No.665 of 2003 to buttress his submission, that the plaintiff is dominus litus and can sue whoever he or she thinks will obtain a relief from and that a Plaintiff cannot be forced to sue somebody who he has not chosen to sue. He stated that this can be inferred from the provisions of Order 1 Rule 7 of the Civil Procedure Rules SI71-1. Counsel contended that the Plaintiff/Appellant sued the Respondent/Defendant upon the respondent failing to give him an



alternative piece of land after trespassing on his land and that he was the right party to be sued in the circumstances.

## **Analysis and Determination**

The Trial Magistrate at page 3 of her ruling and in dealing with the issue of whether suit land was unlawfully alienated by the defendant; found that the Plaintiff should have sued Stephen Kazibwe for compensation if he really had anything like a claim against the defendant. This finding in my view was after the Trial Magistrate had listened to both parties and evaluated the evidence.

The second issue as framed by the parties would beg the question of whether there was a cause of action against the Defendant; in light of the evidence that Stephen Kazibwe was a registered proprietor of the land having been registered on 1<sup>st</sup> March 1984. The Appellant/ Plaintiff had contended that he bought the suit property in 1977 and was in possession until 1994. In paragraph 6 of the Written Statement of Defence, the Defendant contended that the Plaintiff did not have a cause of action against him.

Order 1 rule 7 provides that where the Plaintiff is in doubt as to the persons from whom he or she is entitled to obtain redress, he or she may join two or more Defendants in order that the question as to which Defendant is liable and the extent of the liability may be determined between all parties. It is my opinion that this rule seems to buttress the Trial Courts view.

Had the previous registered proprietors namely Stephen Kazibwe, John Deo Kagimu Kabuye and Joseph Namutale Kamoga and the others actors like Bengo and Kamu been joined as defendants in the suit and in a timely manner; this matter would in my view have been fully resolved. The

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observation of the Learned Trial Magistrate would ensure avoidance of multiplicity of suits. This ground of Appeal also fails.

Ground 6: The learned trial Magistrate erred in law and fact when she misconstrued the concept of bonafide occupant and thus coming to a wrong conclusion.

Learned Counsel contended that Section 29(2)(a) of the Land Act Cap 227 which provides that a bonafide occupant means a person who before coming into force of the constitution had occupied and utilized or developed land unchallenged by the registered owner or agent of the registered owner for twelve years or more.

That subsection 5 of the same section further states that any person who has purchased or otherwise acquired that interest of a bonafide occupant under this section shall be taken to be a bonafide occupant for the purpose of this Act. Counsel argued that the appellant gave unchallenged evidence that he bought the suit Kibanja and has been in possession of the same since then and utilizing the same. That this is evident enough that the appellant lawfully owned a kibanja interest in the suit land and therefore qualified to be a bonafide occupant.

In conclusion Counsel prayed that this appeal be allowed and the trial Court's Judgment be set aside, in the alternative this Court be pleased to order for retrial before another Magistrate and that the appellant be awarded costs of the Appeal and the Court below.

## **Analysis and Determination**

Section 29(2)(a) of the Land Act defines a bonfide occupant to mean a person who before coming in force of the Constitution of Uganda 1995, had




occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more.

From the record, it is the appellant's evidence that he bought the suit kibanja from Ssemwanga in 1977 and utilized it until 1994 when he was evicted from his land by an unknown people. It is imperative to not that he lost possession and the utilization of the land in 1994 a year before the coming into force of the 1995 constitution.

In the instant case, the Appellant under paragraph 4(a) of his plaint stated that he is a bonafide occupant of a Kibanja located at Kavule Cell in Mukono Municipality having acquired it by way of purchase from the late James Ssemwanga on the 15<sup>th</sup> day of October 1977 at a consideration of Ug. Shs. 2500/= (Uganda Shillings Two Thousand Five Hundred only), he tendered in a Sales Agreement written in Luganda and was never translated and only used as an identification document. On cross examination, he stated that he bought the Kibanja from Ssemwanga and the landlord was Kamu and attested to the fact that he never saw the landlord or even talked to him and that the land lord did not know him.

At page 15 of the record of proceedings the Appellant stated that the busulu tickets were in the names of Ida Mukasa contrary to his earlier position that he paid Busulu to a one Kamu.

This Court's opinion is that such contradictions and inconsistencies diminish the probative value of the evidence presented.

Whereas the Appellant claimed that he bought a kibanja from a one Ssemwanga and the land lord of the suit Kibanja was Kamu, a thorough perusal of the record reveals that there is a land title which was tendered in as evidence, the lease hold Certificate reveals that Stephen Kazibwe was the

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first registered proprietor on 1<sup>st</sup> March, 1984 not Kamu as claimed by the Appellant, the land was later alienated to John Deo Kagimu Kabuye in 2006, Joseph Namutale Kamoga on 12<sup>th</sup> February 2007 whom the Respondent bought from and later his name registered on 20<sup>th</sup> November 2013. Upon cross examination, the wife to the late Ssemwanga stated that she did not know that the appellant had bought a Kibanja from them.

The Law Reform Decree of 1975 governed transactions in the period that the Appellant bought the Kibanja. Section 4 and 5 of the Law Reform Decree of 1975, and the case of Tifu Lukwago versus Samwiri Mudde Kizza & Anor; SCCA No.13 of 1996 to the effect that; "Notice to a prescribed authority was relevant to validate a sale of a kibanja and where such notice was not given then such transaction was not valid".

Reference is also made to the case Paul Kisekka Sakti versus Seventh Day Adventist Church SCCA No. 8 of 1993 where the Supreme Court held that;

"transfer of the customary interest was governed by Section $4(1)$ of the Law Reform Decree which required the said transfer to be preceded by *a 3 months' notice to the intended transfer to the prescribed authority;* that since there was no such notice, the transfer was unlawful and void."

In the instant case the notice was not tendered in evidence by the Plaintiff/ Appellant. From the above analysis, this Court finds that the Appellant had no valid claim over the land and the trial Magistrate was correct not to declare him a bonafide occupant.

In the premises the court makes the following Orders;

1. The Appeal is dismissed.

2. The Judgment and Orders of the lower Court are maintained. *CLEANLY THAT THIS IS A TRUE COPY*

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REGISTAR **ONO HIGH COURT** 3. The Appellant is ordered to pay costs in this Court and the Court below. Dated at Mukono this ....................................

HON. LADY JUSTICE CHRISTINE KAAHWA **JUDGE**

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