Kiwanuka & Another v Nassuna (Civil Appeal 16 of 2021) [2023] UGHC 329 (9 March 2023)

## **THE REPUBLIC OF UGANDA**

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

### **HIGH COURT CIVIL APPEAL NO. 16 OF 2021**

## **(ARISING FROM RAKAI CIVIL SUIT NO. 175 OF 2014)**

## **1. KIWANUKA FRANCIS**

## **2. NASSAKA MARGARET :::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

### **VERSUS**

**NASSUNA HAJARA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT (Legal representative of the Late Lukanga Twaha)**

### **JUDGMENT**

### **BACKGROUND**

The Appellants instituted Civil Suit No. 175 of 2021 against the Respondent's now late husband, Lukanga Twaha for a declaration that he had trespassed on the suit land among other reliefs.

The Plaintiffs pleaded that in the 1980's a one Kasumba fraudulently sold part of Buddu Block 326 Plot 11 registered in their father's names, Sylvester Ssebowa to Francis Kiseka who divided the acre into two pieces of half an acre. He sold these two pieces one to the Late Lukanga Twaha and the other to Mwanje.

The Plaintiff further pleaded that in 2011, they carried out a survey of the land and discovered that the Late Lukanga Twaha had encroached on one acre of their land. They attached a copy of the survey report from a one Kigongo Sadiq for the District Staff Surveyor which was addressed to the Magistrate's court – Mukungwe S/county. The Appellants further stated that the Late Lukanga Twaha's conduct of encroachment on the suit land had since continued and that at the time of filing the suit, he had encroached on seven acres of the suit land by planting eucalyptus trees on it.

In his defence, the late Lukanga Twaha stated that he had purchased two bibanja from a one Kisekka, planted different crops, established burial grounds on the land and had enjoyed quiet possession until 2010. He attached two copies of the said sale agreements to his defence. He further stated that he had even paid the then Landlord and father of the Plaintiffs, the Late Sylvester


Ssebowa his Kanzu. He also stated that the Appellants had no locus to institute the suit against him for not being the Administrators of the landlord's estate.

The defendant unfortunately died during the pendency of the trial and he was substituted by court with his spouse, Nassuna Hajara. These sale agreements were also included in the defendant's trial bundle. At the trial, Nassuna Hajara stated that her husband and her had indeed executed a sale agreement (one document) with the person that sold to them the suit Kibanja but that the same got lost with the death of the Defendant. She then went on to disown the agreements that were attached to her defence and included in the trial bundle. She asserted that the Kibanja they bought had never been measured to ascertain its size.

PW2, Ssalongo Kisekka Francis, from whom the late Lukanga Twaha stated to have purchased his bibanja from testified that he sold half an acre of the kibanja/land to the defendant on 21st February 1993. A copy of the Luganda agreement that was sought to be admitted as exhibit but was admitted through the Ssalongo Kisekka Francis for Identification only as PID1 is also one of the agreements of sale that were attached to the Defendant's Written Statement of Defence that was filed on 12th December 2014 as annexure D2.

The trial Chief Magistrate who heard the matter found that the Defendant had lived on the suit land/kibanja for a period of 24 years uninterrupted, held that the Appellant's suit was arrested by the law of limitation and dismissed it with costs to the Respondent. The Appellants' were dissatisfied with the Judgment and the orders and thus instituted the instant appeal.

## **Representation**

The Appellant represented by **M/s F. Aogon & Co. Advocates**

The Respondent was represented by **M/s Lux Advocates**

# **At institution of the Appeal, the Appellant raised eight grounds of appeal to wit;**

1. 1. The Learned Trial Chief Magistrate erred in law and fact when he held that Nassuna Hajara was rightfully appointed by court as the legal representative of Twaha Lukanga the deceased for purposes of prosecuting the suit.


- 2. The Learned Trial Chief Magistrate erred in law and fact when he misapplied the law on limitation of suits thereby arriving at a wrong decision. - 3. The Learned Trial Chief Magistrate erred in law and fact when he failed to evaluate the evidence in its entirety particularly at the locus to the detriment of the appellants occasioning a miscarriage of justice. - 4. The Learned Trial Chief Magistrate erred in law and fact when he disregarded and overlooked evidence of PW2 and PW4 the Appellants' witnesses in respect to the Respondent's purchase of the suit Kibanja, thus arriving at an unjust and wrong decision. - 5. The Learned Trial Chief Magistrate erred in law and fact in his Judgment when he relied on evidence not tendered in Court and outrightly denied by the Respondent leading to a miscarriage of justice to the appellants. - 6. The Learned Trial Chief Magistrate erred in law and fact when he relied on the Respondent's Counsel's submissions that were never on Court record nor served on the Appellants or their counsel. - 7. The Learned Trial Chief Magistrate erred in law and fact when he failed to properly evaluate the contradictory evidence on record by the Respondent. - 8. The Learned Trial Chief Magistrate erred in law and fact when he determined and gave judgment based on bias hence occasioning a miscarriage of justice.

## **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-appraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Father Narsensio Begumisa*

# *and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

In accordance with the above authorities, I have discharged the above duty with caution taking into account the fact that I did not see, hear, or observe the witnesses at the trial in reaching the conclusions that I have made.

## **APPELLANT'S SUBMISSIONS**

The Appellants abandoned the 1st ground of Appeal.

## **Ground No. 2**

The Appellant cited Section 6(2) of the Limitation Act Cap 80 which provides that;

*"Where any person brings an action to recover any land of a deceased person, whether under a will or intestacy, and the deceased person was on the date of his or her death, in possession of the land or, in the case of a rent charge created by will or taking effect upon his or her death, in possession of the land charged and was the last person entitled to the land to be in possession of it, the right of action shall be deemed to have accrued on the date of his or her death."*

The Appellants, based on the above provision, submitted that they are administrators to the estate of the late Sylvester Ssebowa, who died in 2009 while in possession of the suit land. They instituted their cause against the Respondent in the LC111 Court in 2010 which meant that their cause of action in respect of their late father's land started in 2009 and not way back as the Trial Chief Magistrate held.

The Appellants also quoted Section 20 of the Limitation Act which provides that;

*"Subject to section 19(1), no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under will or on intestacy, shall be bought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy or damages in respect of those arrears shall be bought after the expiration of six years from the date on which the interest be come due."*


The Appellants also submitted that Section 5 of the Limitation Act was not applicable in the circumstances but rather, section 20 that provides for limitation in respect of the deceased's estate.

The Appellants further submitted that trespass is a continuous tort and every day one stays on another's land without authorization, a cause of action arises against that person as it is in the case of the Respondent to-date.

The Appellants relied on the case of *Justine E. M. N Lutaya versus Stirling Civil Engineering Company Ltd SCCA NO. 11 OF 2002* in which it was held thus;

*"Trespass to land is a continuing tort, when an unlawful entry on the land is followed by its continuous occupation or exploitation. Proof of such continuous unlawful occupation, is sufficient proof of trespass…" "Given that the trespass was admitted, there was no legal requirement for further proof."*

In conclusion, the Appellants prayed to this Honorable court to answer this ground in the affirmative.

The Appellant argued Grounds No .3, 4, 5, 7 and 8 together as hereunder.

The Appellants submitted that at page 12 of the record of proceedings, in paragraphs 4 and 5, PW2 described the boundaries of his Kibanja purchased in 1986 from PW4. He stated that on the 21.2.1993, he sold land to the Defendant/ deceased and the boundaries were Mwanje on the left Twaha Matovu on the right, upwards is Kibilango and a road, downwards is forest.

The Appellants further submitted that at page 17 paragraph 4 from the bottom, PW4 also described the boundaries of his Kibanja obtained in 1978 from the late Ssebowa the then registered proprietor. The said Kibanja touched on a road to Twaha's place, on the lower side there was an ant-hill and a big tree and on the other side which is the right and left Twaha Matovu and Ssebowa respectively.

The Appellants complained that the trial Chief Magistrate omitted considering the above evidence yet the Respondent derives her ownership and equitable interest in the land or Kibanja from what PW2 possessed and obtained from PW4. The Appellants argued that this was a clear indication that the trial Chief Magistrate failed to evaluate all the evidence on record.


The Appellants also criticized the trial Chief Magistrate for omissions at the locus visit. They stated that the magistrate left out and never considered the evidence on the boundaries of the land as were described and Shown to Court.

The Appellant argued that whereas the parties moved around the disputed Kibanja and each of them showed their boundaries and mentioned the names of the neighbors, the trial Chief Magistrate omitted to demonstrate these facts in a sketch map. He also did not mention the neighbors with whom the disputed Kibanja bordered despite the fact that the same was shown and the names of the neighbors mentioned.

The Appellants cited **Practice Direction No. 1 of 2007**, direction 3(d) which provides that Court should record all the proceedings at the locus in quo, which the Learned Trial Chief Magistrate did not do.

The Appellants also submitted that the trial Chief Magistrate at pages 3 and 4 of the Judgment starting from paragraph 4 to the bottom disregarded the evidence of PW2 and noted at page 4 paragraph 2 from the top that the Defendant bought a Kibanja in the early 1990. This contradicted DW1 evidence at page 21 in the first paragraph from the top where he testified that the Kibanja was purchased in 1993 from Salongo Kisekka.

That the court's findings also contradicted Dw1's evidence at page 22 in the first paragraph wherein she testified that Kisekka sold his Kibanja only once and the agreement got lost, in paragraphs 2 -4 from the top. That she denied all the agreements attached to her pleadings and clearly admitted that they are not genuine.

The Appellants also complained against the trial Magistrate's decision to accept the Respondent's Luganda agreements without their English interpretation adduced in court and yet the same had been denied by the Respondent as her evidence on oath in cross examination. The Appellant submits that this acceptance demonstrates that the learned Chief Magistrate was acting with bias and determined the suit on non-existing evidence not properly produced, admitted and tendered in Court as required by the law.

In conclusion, the Appellants invited this Honurable court to re -evaluate the evidence on record as required by law and answers grounds 3, 4, 5, 7 and 8 in the affirmative.


## **Ground No. 6**

The Appellants submitted that they were provided with the record of the trial court on the 9th December, 2020, and the Respondent's submissions were not on court file and that they have never seen them which prompted them to formulate this ground of appeal.

They further argued that had they been served with the said submissions at the trial, they would have filed a rejoinder to respond to matters of Limitation that arose from the non –existent submissions.

The Appellants, prayed that this court resolves the ground in the affirmative and allow the appeal with costs.

## **RESPONDENT'S SUBMISSIONS**

### **Ground 2**

Counsel for the Respondent submitted that the Respondent's late husband testified in the lower court that he had bought the said portion in 1990 and 1993 respectively from the late Sylvester Ssebowa which bibanja are comprised on Bock 326 plot 11. The defendant testified that he utilized these two portions unchallenged till 2010 when the plaintiffs sought an eviction in L. C. III Court whose judgment was set aside.

It was further submitted for the Respondent that the late Sylvester Ssebowa was the registered proprietor and not the plaintiffs at the time when the late Twaha Lukanga bought the disputed portions. That the Respondent's husband, the late Twaha Lukanga, lived in harmony with Ssebowa Sylvester for over 12 years

The Respondent cited *Section 5 of the limitation Act which provides that no person is supposed to bring a suit to recover land / kibanja upon expiration of twelve years.*

It was further submitted for the respondent that together with her now deceased husband bore children who have grown up on this portion of kibanja. That under section 6 of the Limitation Act, the dispossessed must act on that very moment of dispossession. The Respondent having spent over 24 years on the kibanja with his family undisturbed automatically qualities herself as an adverse possessor.

 The Respondent relied on the authority of **FX Mirango Vs Attorney General (1979) H. C. B 24**, for the proposition that the suit is barred and that once a suit is statute barred, it is always statute barred.

The Respondent further contends that the Appellant's Letters of Administration are inconsequential in as far as the suit land is concerned since according to her the same was already transferred by their late father to the Respondent in his life time. It is a fact that Ssebowa's rights on this very portion of the kibanja had been extinguished by adverse possession which is clearly encapsulated in S**ection 78 of Registration of Titles Act Cap 230.**

In conclusion, the Respondent prayed that the ground be rejected.

The Respondent argued **grounds 3, 4, 5, 6, 7, and 8** jointly as hereunder**.**

The Respondent submitted that contrary to Order 43 rules 1 & 2 the Appellants grounds of appeal are somewhat augmentative and that often time, courts have struck out such grounds. The Respondent cited the authority of *C.f Katumba Byaruhanga Vs Edward Kyewalabye Musoke Civil Appeal No. 2 of 1998* whose copy like all other authorities relied on by the Respondent was not attached to her submissions. She prayed that the grounds be struck out because according to her, their existence was wholly dependent on the resolution of the issue on limitation of time.

## **Ground 3**

On this ground, the Respondent submitted that whatever features the Respondent referred to as existent on his kibanja to wit, permanent house avocado trees, coffee eucalyptus trees, the trial magistrate indeed found them existent and indeed proved that the respondent was in possession for over twelve years.

## **Ground 4 and 5**

The Respondent submitted that these grounds are argumentative, a repetition of earlier grounds and that the same are also affected by the finding on limitation. She invited this Honourable court to reject them

#### **Ground 6**

The Respondent submitted that the said submissions were served on the appellants personally and that it would defeat logic to argue that the lower court's trial magistrate relied on nonexistent submissions yet in his judgment he recognizes seeing the same. She invited this court to treat the ground with contempt and reject it.

### **Ground 7**

The Respondent submitted that according to the record of proceedings the said PW2 Salongo Kisekka did not adduce documents to prove his claim of selling ½ acres. She further submitted that the said contradictions were minor and of less probative value when compared with the Respondents testimony. She prayed that the ground be rejected.

#### **Ground 8**

The Respondent submitted that this ground was unfounded because according to her, before arriving at his judgment, the Learned Trial Chief Magistrate properly evaluated evidence both oral and physical from both parties. That it is because of this that the appellants never raised any alarm during the locus visit.

The Respondent further submitted that bias is a serious allegation that needs to be proved beyond doubt.

In conclusion, the Respondents prayed that this appeal be dismissed with costs to allow the Respondent, widow and her children utilize their portions of kibanja peacefully.

### **APPELLANTS' SUBMISSIONS IN REJOINDER.**

In rejoinder, the Appellants reiterated that they were never afforded an opportunity at the trial court to rebut the point of law on limitation which was raised in the submissions in reply that were never served on them. The Appellants also complained that they were still not served with the Respondents submissions in reply in the appeal and they only had to get them after writing to this court for a copy.

The Appellants relied on the case of **LUTALO MOSES AND OJEDE ABDALLAH BIN CONA SUPREME COURT CIVIL APPEAL NO**. **13 Of 2019** at page 19, court relying on the case *of Makula International Ltd vs. His Eminence Cardinal Nsubuga, SCCA No. 4 of (1981 HCB)*

*and National Social Security Fund & Anor vs. Alcon International SCCA No. 15 of 2009* in which court stated that:

*"… the correct position of the law is that while an issue or ground of illegality or fraud not raised in the lower court may be raised on appeal, the parties must be given an opportunity to address court on it before it makes a decision. Even where a judge wishes to consider an issue after the hearing has been concluded, the judge must give the parties the opportunity to address the Court on the issue." Emphasis added.*

The Appellant submitted that the Respondent's conduct of non-service of the submissions infringed on his right to be heard under Article 28 of the Constitution of the Republic of Uganda. The Appellants also submitted that Pw1's witness statement demonstrates that the Late Slyvester Sebowa did not live in harmony with the Respondent because it is stated therein that he often reported the Respondent to Local Council authorities for trespass.

### **Issue 3**

The Appellants argued that they rightly fully framed their grounds of appeal as required in Order 43 rules (1) and (2) since they specifically point out the errors observed in the course of the trial, including the decision which the Appellants believe occasioned a miscarriage of justice.

### **Issue 4**

The Appellants argued that it is factual that Trial Court did not give them an opportunity to be heard on different issues. This is a clear indication that he was biased as earlier elaborated.

The Appellants further argued that the Trial Magistrate omitted to consider the pleadings of the Appellant, considered evidence which was never exhibited in Court as the evidence of court to determine the suit.

## **DETERMINATION OF COURT**

I have carefully examined the submissions of the parties and the record of the trial court and below are the findings of this court.

# **Ground 2: The Learned Trial Chief Magistrate erred in law and fact when he misapplied the law on limitation of suits thereby arriving at a wrong decision.**

It is clear that the Appellant's father, Sylvester Ssebowa acquiesced to Domazo Kasumba's fraudulent sale of one acre of Buddu 326 Plot 11 in the 1980's when he allegedly acquired it and

embarked on disposing it off to 3rd parties. This is the narration admitted by the Appellants and it is this very background that enabled Ssalongo Kisekka Francis to acquire half an acre which he testified to have sold to the Defendant.

To state that the Appellants or their father also acquiesced to the later subsequent encroachment of their land and to even hold that the trespass is arrested by limitation is to stretch the Respondent's claims beyond what can be accommodated legally.

Whereas the Late Lukanga Twaha attached to his witness statements, the agreements from which he based ownership of the Kibanja in which he claims to be in possession, his legal represenstative denied both agreements altogether. It should be noted that Pw2, testified that he sold only half an acre to the Respondent and he sought to tender in the same agreement which is the same in substance as one of two agreements that were attached to the Defendant's Written Statement of Defense. The agreement PID1 was admitted for Identification only because it was never translated into the language of this court. This court, however, has perused it and found it to be the same in substance as the one attached by the Respondent on his Written Statement of Defense.

It is the agreements which the Respondent attached to his defence that should have guided this court on what the size of land that he really acquired was but the Respondent denied them altogether and further stated that the size of their Kibanja was never measured at the time it was purchased.

This court hereby reiterates the position of the law that parties are bound by their pleadings. *See Order 6 r7 of the Civil Procedure Rules and the decision in Jani Properties Ltd versus Dar-es Salaam City council (1996) EA 281; Struggle Ltd vs Pan African Insurance Co. Ltd (1990) ALR 46-47.* The Respondent could not be allowed to be that same person/party that brought to court evidence that demonstrates that the size of his land is ascertainable in the agreements and later state in his evidence that the land was not measured at the time of purchase.

I agree with the Appellants that since the Respondent categorically stated that they acquired their ownership claim from Ssalongo Kisekka Francis, what he testified as to the size of land that he sold to the Late Twaha is what truly belongs to his estate. Any land outside the half an acre is an encroachment on the Appellant's land and is a trespass which is a continuous cause of action

# incapable of being arrested by limitation. See *Justine E. M. N Lutaya versus Stirling Civil Engineering Company Ltd SCCA No. 11 of 2002.*

In conclusion, I find that the trial Chief Magistrate erred in law when he made a blanket declaration that the entire Appellant's claim was arrested by limitation without due regard to the Respondent's subsequent encroachments made over the years.

This ground is answered in the affirmative.

# **Ground No.2; The Learned Trial Chief Magistrate erred in law and fact when he misapplied the law on limitation of suits thereby arriving at a wrong decision.**

As noted in resolution of ground one, the learned trial Chief Magistrate erred when he held that the entire Plaintiff's claim was arrested by limitation. This holding presupposed that the Respondent and her late husband had been in possession of the entire suit kibanja from 1993.

This court has found that the Respondent only purchased half an acre of the suit land. The learned Chief magistrate held that the Respondent had been in possession for 24 years over the entire suit land. This finding contradicts the unchallenged Appellants' testimony that the Respondent had acquired his current acreage of land by encroaching on the Appellant's land over the years. The late Ssebowa Sylvester also protested this encroachment in the LC1 court earlier despite this court's decision having been set aside.

The Appellants pleaded in paragraph 3(e) of the amended plaint that the Respondent has since 2000s expanded the boundaries of his said piece into their remaining 19 acres. Going by the law of limitation, still the learned trial Chief Magistrate was not empowered by the law of limitation to declare the suit barred by S.5 of the Limitation Act as he did. The encroachment as sated in the Appellant's uncontroverted evidence was gradual. 2000s could as well be 2003, 2004, 2005 etc which puts the claim outside the time bar of 12 years. The Respondent is also not an adverse possessor in respect of her current holding of land outside the half of an acre that was bought from her now deceased husband from Ssalongo Kisekka Francis.

This ground is answered in the affirmative.

I will resolve grounds 3, 4, 5, 6, 7 and 8 jointly because they are related to evaluation of evidence and bias.

**Ground 3; The Learned Trial Chief Magistrate erred in law and fact when he failed to evaluate the evidence in its entirety particularly at the locus to the detriment of the appellants occasioning a miscarriage of justice.**

**Ground 4: The Learned Trial Chief Magistrate erred in law and fact when he disregarded and overlooked evidence of PW2 and PW4 the Appellants' witnesses in respect to the Respondent's purchase of the suit Kibanja, thus arriving at an unjust and wrong decision.**

**Ground 5: The Learned Trial Chief Magistrate erred in law and fact in his Judgment when he relied on evidence not tendered in Court and out rightly denied by the Respondent leading to a miscarriage of justice to the appellants.**

**Ground 6: The Learned Trial Chief Magistrate erred in law and fact when he relied on the Respondent's Counsel's submissions that were never on Court record nor served on the Appellants or their counsel**.

**Ground 7: The Learned Trial Chief Magistrate erred in law and fact when he failed to properly evaluate the contradictory evidence on record by the Respondent.**

**Ground 8: The Learned Trial Chief Magistrate erred in law and fact when he determined and gave judgment based on bias hence occasioning a miscarriage of justice.**

I agree that the learned trial magistrate erred in failing to properly evaluate the evidence. It is for the above reason that the earlier grounds have been resolved in the affirmative.

Having analytically perused and examined the record of the trial court, I have not found the Respondents submissions in the trial court file. This is not only erroneous but also connotes bias. Bias has two faces, perceived and real bias. Relying on submissions which are nonexistent on the court file can properly pass for the former category of bias. The Respondent's counsel has submitted from the bar that the submissions were served on the Appellants personally. This too is unbelievable because no affidavit of service of the said submissions was adduced in the court


record. It also defeats logic as to why counsel would choose to serve legal arguments on a represented lay litigant well knowing that at the end of the day, it is their counsel that is endowed with legal knowledge to rejoin to the legal arguments raised in his submissions. This confirms that the submissions were non –existent on the court record as is the status to date.

I did not find the grounds argumentative either.

The above grounds are therefore resolved in the affirmative.

In conclusion, the appeal is allowed with the orders below.

#### Orders:

- 1. The Appellants are the lawful owners of the suit land. - 2. The Respondent's Kibanja on the suit land measures half an acre. - 3. The Respondent shall maintain her activities within the half acre land. - 4. A permanent injunction issues restraining the Respondent, her agents, servants and employees from further trespassing on the suit property. - 5. An eviction order issues against the Respondent on the suit land outside the half acre that was bought by the Late Lukanga Twaha. - 6. The Costs awarded to the Respondents by the trial court are set aside. - 7. The Appeal is allowed with no order as to costs.

Dated this 9th day of March, 2023.


# **VICTORIA NAKINTU NKWANGA KATAMBA JUDGE**