Kusemererwa and Another v Okwiri (HCT-01-LD-CA 24 of 2022) [2024] UGHC 1089 (14 November 2024)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### 3 **HCT – 01 – LD – CA – NO. 024 OF 2022**

#### **(ARISING FROM FPT – 00 – CV – LD – CS – 112 OF 2016)**

#### **1. KUSEMERERWA JOHN**

#### 6 **2. AGABA BEN ISOKE ::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

#### **VERSUS**

## **OKWIRI RICHARD :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** 9 **(Through his Attorney Olimi Herman)**

#### **BEFORE: HON. JUSTICE VINCENT WAGONA**

#### 12 **JUDGMENT**

#### **Introduction***:*

This is an appeal against the judgment and orders of His Worship Kule Moses 15 Lubangula, Chief Magistrate, Fort Portal Chief Magistrate's Court in Civil Suit No. 112 of 2016.

#### **Background***:*

- 18 The Respondent sued the appellant seeking among others a declaration that the suit land located at Harukuto in Fort Portal Municipality belonged to him, and an order of cancellation of the transaction between the 1st and 2nd appellants. The Respondent - 21 averred that he bought the suit land from David Kalenzi in 1990 and left it under the care of Adyeeri Winfred Kaijamurubi as care-taker. When the Respondent returned in 2000, he found that the 1 st defendant had put building materials on his land and


soon discovered that the 1st appellant had unlawfully bought from his brother George Nyaika Kasunga (deceased) before selling to the 2 nd defendant.

- In their joint written statement of defense filed on 5 3 th October 2016, the appellants averred that the 1st appellant lawfully purchased the suit land from George Nyaika Kasunga in 1998 and later acquired a leasehold title over the same from the - registered proprietor (Toro Kingdom). That he had never sold the same to the 2nd 6 appellant.

#### **Findings of the trial Court:**

9 The trial court found in favour of the Respondent and declared him the owner of the suit land and the appellants as trespassers and issued the relevant orders.

#### **Grounds of appeal:**

- 12 The appellant framed seven grounds of appeal for consideration that is: - **(1)The trial Magistrate erred in law and fact when he found that the Respondent was the rightful owner of the suit land.** - 15 **(2)The trial Magistrate erred in law and fact when he found that the defendants were trespassers on the suit land.** - **(3)The trial Magistrate erred in law and fact when he entertained and heard** 18 **a matter that was barred by limitation.** - **(4)The trial Magistrate erred in law and fact when he found that the Respondent had lawfully bought the suit land from David Kalenzi who** 21 **had no ownership thereof.** - **(5)The trial Magistrate erred in law and fact when he wrongly applied the principle of burden of proof.**


- **(6)The trial Magistrate erred in law and fact when he ordered the cancellation of the sale agreements by the 1st appellant without establishing the initial ownership of the land by the 1st** 3 **appellant before the sale.** - **(7)The trial Magistrate erred in law and fact when he failed to properly** 6 **evaluate the evidence on record and therefore arrived at a wrong decision.**

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

- 9 Mr. Nyakaana Patrick appeared for the appellants and he filed written submissions which I have duly considered herein. The Respondent was served with a hearing notice per the affidavit of service of Mr. Muheirwe Brian and he did not respond, - 12 neither his former lawyer who received the memorandum of appeal. I shall thus proceed to consider the appeal exparte.

#### **Appellants' Submissions:**

- 15 The trial Magistrate erred in evaluating the evidence on record and thus erroneously arrived at a wrong decision. PE1 which was the purchase agreement relied upon by the Respondent had no English translation which is the official language of court. - 18 David Kalenzi had no title to pass to the Respondent since his tenancy had expired before the sale. In the agreement relied upon by the Respondent (PE2), the date was altered from 1981 to 1989 and in any case expired on 1st November 1990. - The trial Magistrate erred when he found the appellantstrespassers. The 2nd 21 appellant had no interest in the suit land and the 1st appellant had sold his interests in the suit land to Eunice Rufunda who was in possession.


The trial Magistrate jumped to conclusions without analyzing the evidence on record. If he had done so, he would have found out that the person from whom the

3 Respondent claimed to have acquired the suit land, had no interest or title to pass to the Respondent. The findings of the trial Magistrate that the Respondent was the owner of the suit land had no evidential support. There was no evidence against the 2 nd 6 appellant as such court erroneously issued orders against him.

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

As the first appellate court, my duty is to subject the evidence presented to the trial

- 9 court to a fresh and exhaustive scrutiny and re-appraisal before coming to my own conclusion. *(See: Father NanensioBegumisa& 3 others vs Eric Tiberaga SCCA 17 OF 2000 [2004] KALR 236)*. I am duty bound to do a re-evaluation of the evidence - 12 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* - 15 *v Uganda Railways Corporation 2002 E. A).*

#### **Whether the suit was time barred**

The issue was raised in the written statement of defence but was never pursued at 18 trial and so the trial court did not pronounced itself on it. On appeal, no submissions were made on this ground.

Section 5 of the Limitation Act is to the effect that an action for recovery of land 21 should be brought within 12 years from the date the cause of action arose. Section 11(1) adds that in the event of a claim for land, the cause of action crystalizes from the time the person is dispossessed of his or her land. *(See Odyek Alex & Anor v*


## *Gena Yokonani, Civil 20 Appeal No, 09 of 2017 & Kasoya Justine & Anor v William Kaija & 3 others Civil Suit No. 6 of 2015).*

- 3 Section 25 of the Limitation Act provides for exceptions where time may be postponed and these include fraud, mistake where the time starts to run from the time the same is noticed or where it is deemed that the same was noticeable by conduct - 6 of the parties or through due diligence. In addition, the other permissible exception to limitation is trespass, which the law deems is a continuing tort and any continued stay of a trespasser gives a fresh cause of action against the one in possession of the - 9 suit land. (See: *Justine E. M. N. Lutaya v Stirling Civil Engineering Company Ltd [2003] UGSC 39 (10 November 2003*).

#### In *Uganda Revenue Authority Vs Uganda Consolidated Properties Ltd (1997 –*

- 12 *2001) UCL 149* **Justice Twinomujuni JA** observed that: "Time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with". In *Francis Nansio Michael Vs NuwaWalakira (1993) VI KALR* - 15 *14* the Supreme Court held that clearly if the action is time barred then that was the end of it. - In the present suit, the appellants averred that the suit was time barred because 18 paragraph 6 of the plaint disclosed that the dispute arose in 2000 yet the suit was filed in 2016. The Respondent averred that he returned in 2000 and found the 1 st defendant had placed stones on his land and wrote a demand notice to him. That later - on 9/05/2007 after noticing that the 1 st 21 appellant had bought the suit land from his late brother Nyaika, the said Nyaika wrote to the 1st appellant intimating to him that the land he had sold to the 1st appellant was not his (Nyaika's) and offered to refund - 24 the money paid as consideration. That the cause of action leading to the filing of the


suit arose when the 2nd appellant put hardcore on the suit land and was preparing the land to build a house thereon claiming he bought the suit land from the 1 st defendant.

- It is not clear from the plaint as to when the 2nd 3 appellant placed the stones on the suit land. However, it is discernable from the pleadings that the 2nd appellant was acting as an agent of Eunice Rufunda who bought the suit land on 5th October 2015 - per the sale agreement between the 1st 6 defendant and the said Eunice Rufunda. Therefore, the alleged trespass by the 2nd appellant of placing stones on the land must have occurred after purchase that took place on 5th October 2015 before the suit was - 9 filed in 2016. It is also noted that the issue of limitation was not raised and submitted upon in the trial court and even after the same was raised as a ground of appeal, learned counsel for the appellants opted not to submit on the same. I therefore find - 12 that the Respondent suit was brought within the 12 years under the Limitation Act since the events leading to the suit happened after 5th October 2015. Thus, ground 3 fails.

# 15 **Whether the trial Court properly considered the evidence on record in arriving at its findings that the Respondent was the rightful owner of the suit land and the appellants were trespassers on the same.**

- 18 The Respondent's claim in the plaint was that he acquired the suit land by way of purchase from Kalenzi David in 1990 and left it under the care of Adyeeri Winfred Kaijamurubi. In his testimony as PW1, he stated that he bought the suit land in - 21 November 1990 from David Kalenzi at shs 840,000/=. That he paid in installments and after full payment, an agreement (*PE1*) was made and the vendor handed over the suit land and all documents including the tenancy agreement (*PE2*). That he had - 24 bought the land for construction but later fenced it off and appointed Adyeeri Winfred Kaijamurubi as the caretaker who used to farm on it and grow food crops.


In 1997, his late brother Nyaika George who was running his businesses in Kampala stole all his important documents including the purchase agreements for the suit

- 3 land. He reported (*PE3*) the matter to the L. C.1 and Nyaika George also admitted (*PE4*) having sold his land illegally. That in 2000, the 1st defendant/appellant trespassed on his land and he wrote to him a letter (*PE5*) through Jombwe & Co. - 6 Advocates demanding that the trespass cease. Kaijamurubi continued using the land till 2004 when the 1st defendant again placed claims of ownership over the same. That he later fenced of his land and in 2016, amidst protests from the 1st appellant - 9 who claimed interests in the same. That later the appellants together with their agents destroyed his fence and the 2nd appellant reported a case of criminal trespass at Fort Portal Police Station Vide SD Ref: 24/6/9/2016. That he was arrested by police on - the basis of the complaint by the 2nd 12 defendant and later released without being charged. That he lawfully bought the suit land from the former owner David Kalenzi and that his late brother Nyaika George had no interests in the land which he could - pass to the 1st 15 appellant. In cross examination he stated that he bought the suit land from Kalenzi who surrendered documents of title to him including a tenancy dated 29/05/1989 to last for one year. That the 2nd defendant came with the soldier to arrest - 18 him and it is the reason why he sued him. In re-examination he stated that he had never received a termination notice from Fort Portal Municipal Council and that by 1/11/1990, the Kibanja was his and Kingdom land was managed by Fort Portal - 21 Municipal Council.

*PW2 (Winfred Kaijamurubi)* confirmed that the Respondent acquired the suit land in the 1990's and left her as caretaker. Later the 1st appellant informed her that he had bought the suit land from Nyaika George and she told the 1st 24 appellant that the land belonged to the Respondent. When she informed the Respondent, he came and


fenced the suit land and later he was arrested on a complaint by the appellants. The suit land formerly belonged to the late David Kalenzi who sold it to the respondent.

- 3 In cross examination she stated that Nyaika George had never been in possession of the suit land but was staying with them. - *PW3 (Grace Komukyeka)* aged 68 years stated that he was informed by Adyeri 6 Kaijamurubi that the suit land belonged to the Respondent and was sold by the late George Nyaika without the consent of the respondent who had acquired it from David Kalenzi. That the respondent appointed his step mother as caretaker and she - 9 used to grow seasonal crops thereon. That the late Nyaika used to lie that the plaintiff died in China and it was until he returned and found his land had been sold. When the respondent fenced the land in dispute, police got involved and the matter came - 12 to court. The suit land belonged to the late David Kalenzi who sold it to the respondent. - *PW4 (Rosebell Mbabazi Kimera)* aged 71 years testified that the suit land was part 15 of the big land owned by her grandmother Omubitokati Ruth Kacaaku (deceased) who acquired it as a gift from the Kings Omukama Kyebambe and later gifted the same to her niece Julian Komubaizi. That later Julian Komubaizi sold the suit land 18 to David Kalenzi who in turn sold it to the respondent. It remained under the caretaker Adyeeri Winfred Kaijamurubi. When the plaintiff returned, he found when his late brother had sold his land and reported the matter to the authorities. In cross 21 examination, she stated that the suit land was partly owned by Tooro Kingdom.

*DW1 (Kusemererwa John)* testified that he bought the suit land from Nyaika George in 1997 and he was handed over possession in 1998. In the same year, a dispute arose 24 over the suit land with Switze Kaijamurubi who claimed ownership of the suit land.

 That he wrote to Switzer Kaijamurubi explaining how he acquired the suit land and he responded telling him that Nyaika had never owned the suit land. That later in 3 2000, he received a demand notice from Jombwe & Co. Advocates alleging trespass on the suit land claiming it was owned by the respondent. That in 2003, he wrote to the Kingdom to intervene and on 4/10/2005, Mr. Switzer Kaijamurubi 6 acknowledged the land was his. That on 5/6/2005, he wrote to the Kingdom intimating to them that the dispute had been solved and on 21/7/2009, the office of the Chairperson L. C. 1 wrote to the Kingdom confirming the land was his. That he 9 later secured a lease an inspection by a team from Toro Kingdom. That he later sold the same land to Miss Eunice Rufunda on 5/10/2015 and the money was paid by the 2 nd appellant on her behalf. There had been no dispute since 2005 until 2016 when 12 the respondent through his agents trespassed on the suit land. In cross examination he stated that he sold the suit land to Rufunda on 5/10/2015 and Tooro Kingdom witnessed the same. That Nyaika had bought the suit land from Kalenzi David in 15 1990. That he was aware Kalenzi David was a tenant of Fort Portal Municipal Council in 1990 and Nyaika provided him with a copy of the tenancy agreement. That Nyaika gave him a photocopy of the agreement when he (Nyaika) was buying 18 the suit land from Kalenzi. That he showed him originals at the time of purchase but gave him a photocopy. That it was Nyaika who handed over the land to him. That later in 1998, Switzer Kaijamurubi told him the land he had bought did not belong 21 to Nyaika but belonged to Okwiri. That when he inquired from Tooro Kingdom who were the owners of the suit land, he was told that the land was free and not owned

24 *DW2 (Winyi Alex)* testified that he was the L. C. I chairperson of Harukuto since 1998 and before that he was a member of the executive committee since 1996. That

by Okwiri Richard and that they did not have Nyaika George in their records.


the suit land was previous occupied by a man called Mapesa who had planted sugarcanes thereon and later vacated. He was present when the 1 st appellant fenced

- the suit land and in 2000. That on several occasions the 1 st 3 appellant took loan agreements for him to sign using the suit land as collateral. In cross examination he stated that Kalenzi was the owner of the land before 1989. That Mapesa had been a - caretaker of the land on behalf of Kalenzi. When the 1st 6 appellant bought the suit land, he was introduced to the L. C.1 executive and his documents were verified. The complaint by Switzer Kaijamurubi was how Kusemererwa John (1st appellant) - 9 acquired the suit land. The Kingdon resolved to give the suit land to Kusemererwa John (the 1st appellant). The dispute was between John Kusemererwa and Switzer Winfred Kaijamurubi. In re-examination, he stated that he signed among the people

present when the 1st 12 appellant was verifying the boundaries of the suit land.

*DW3 (Kabahigi Jane)* testified that she came to live in Harukuto in 1976 and found the suit land occupied by Mapesa. Mapesa was later removed by Kalenzi David who 15 claimed ownership of the suit land and took possession. That around 1988-1990, the late Nyaika George purchased the suit land from Kalenzi because he wanted to construct there a house for his father Omubiito Rweru. That shortly after, she saw 18 Winfred Kaijamurubi, wife to Switzer Kaijamurubi, an uncle to Nyaika using the suit land for cultivation. That she knew the land was bought by Nyaika and had never seen the Respondent. That around 1997, Nyaika George introduced the 1st appellant

21 to her mother in law Peridace Kabaduma as the person to whom he was going to sell the land. That later the 1st appellant came with his people and fenced off the suit land. In 2016, she saw a new fence around the suit land and she was told by the 24 neighbors that there was a dispute over the same. In cross examination, she stated that she was present during inspection of the boundaries and by then, it was Mrs.


Kaijamurubi who was staying on the suit land. That Kusemererwa John (1st appellant) put a barbared wire in 1998.

- 3 *DW4 (Hussein Claude)* testified that he was born and raised at Harukuto village. That the suit land was at first occupied by Mapesa who had a mud wattle house and later in or about 1990, Kalenzi occupied the land. In 1994, the land was occupied by - Kaijamurubi Winfred. In 1998, he got to know from his uncle Nyaika that the 1st 6 appellant had bought the land from him. DW4 requested the 1st appellant to allow him use the land for grazing his cattle. The 1st appellant indicated that he was to first - 9 fence off the land. In 2000, DW4 entered the suit land as care-take and continued to us it until 2017. In cross examination he stated that Kaijamurubi used the land for about 4 years and had a banana plantation. When his uncle (1st appellant) bought the - 12 suit land, Kajamurubi left.

*DW5 (Agaba Ben Isoke)* stated that the land was bought by Eunice Rufunda. That before purchase, he verified and confirmed that the land was owned by 1st appellant.

- 15 In cross examination he stated that due diligence was done prior to purchase of the suit land. That he reported the matter to police after he was told people Okwiri was trespassing on the suit land. - 18 Court visited locus where PW1 was able to show court the land in dispute. The first appellant (DW1) said he was the one who sold the suit land to Eunice Rufunda. That he did a preliminary survey which established the size of the land to be 0.65 acres. - The 2nd 21 appellant (DW5) stated that he did not have any land. The land belonged to his cousin sister Eunice Rufunda who bought it.

## *A***nalysis of the Evidence:**


The main point of contestation between the parties is ownership of the suit land. PW1 stated that he bought the suit land from Kalenzi David and attached a sales 3 agreement which was admitted as PE1s together with its English translation. I find no merit in the submissions of learned counsel for the appellants that PE1 was relied upon by court without a copy of the translation.

- 6 The Respondent went ahead and presented *PE2* which was a tenancy agreement between Fort Portal Municipal Council and David Kalenzi which he states was handed over to him by the purchaser as proof that the land was his. Learned counsel - 9 for the appellants contended that the trial court wrongly relied upon PE2 in confirming ownership of the suit land by the Respondent. He indicated that the said PE2 contained altered dates and that by the time Kalenzi purported to transfer - 12 interest to the Respondent, Kalanzi's interest had lapsed as such he had not title in the suit property to pass to the Respondent.

PE2 is a tenancy agreement between Fort Portal Muncipal Council and David 15 Kalenzi. The land was rented to Kalenzi for agricultural purposes. The agreement is dated 29th May 1989 and under clause 1, it was for a term of one year commencing on 1 st January 1989. They first indicated 1988 and then crossed and changed it to 1989. The land was inspected by the land supervisor of the municipality on 12th 18 June 1989 and he endorsed on the same. There was no evidence from Fort Portal Municipality to discredit the execution and/or existence of PE2. In my evaluation, 21 the alteration of the year from 1988 to 1989 was a honest correction since there other dates on the same agreement which supported the narrative that the agreement was

made in 1989 not 1988. I therefore find no basis to doubt the validity of PE2.


Learned counsel also submitted that PE2 was to last for one year effective 1 stJanuary 1989 and lasped on 1st January 1990. It was contended that the agreement of sale of the Respondent (PE1) was made on 1 3 st November 1990 when the rent period for Kalenzi David had expired. It was included in clause 1 of PE2 thus;

*"The council demises onto the tenant the piece of land described in the schedule hereto for a term of one year from the 1st* 6 *of January 1989 and thereafter from year to year until the term hereunder is terminated by giving by either party of not less than six months notice in writing expiring on the 30th day of June or the 31st* 9 *day of December in any year."*

It is deducible from the said clause that the initial tenancy period was for one year but would continue running from one year to another after expiry of the first year until terminated by either party upon giving a six months' notice expiring on 30th 12 June or 31st December in any year. Therefore, the tenancy was a recurring one which would extend from one year to another until terminated. There is no evidence on 15 record that suggest the same was terminated either by Fort Portal Municipal Council or Kalenzi David before purchase by the Respondent. I therefore find the argument by Mr. Nyakaana for the appellant that Kalenzi had no interest in the property to 18 pass to the Respondent his tenancy having expired cannot stand. Therefore, the respondent was entitled to rely on PE1 and PE2 as the basis of his interest in the suit land. His evidence was well corroborated by that of PW2, PW3 and PW4 who all 21 confirmed that the suit land belonged to the Respondent who bought it from Kalenzi David in 1990. PW3 added that the Respondent had gone to China and his uncle Nyaika used to tell them that he died there and Nyaika sold the respondent's land. 24 PW2 maintained that she was the one caretaking the suit land for the Respondent and informed the 1st appellant that the suit land did not belong to Nyaika but to the


respondent. PW4 aged 71 who was a neighbor of the suit land gave a brief history of the suit land. She stated that the suit land originally belonged to her grandmother

- 3 Omubitokati Ruth Kacaaku who received the same as a gift from Omukama Kyebambe. That Ruth gave the land to Julian Komukazi who sold it to Kalenzi David. That Kalenzi David later sold the suit land to the Respondent who placed - 6 PW2 as his caretaker. This evidence was not successfully challenged or discredited in cross examination and thus was believable.

The respondent testified that when he returned in the year 2000 and found the 1 st

- 9 appellant had trespassed on the suit land; he wrote to him a demand notice (PE4). That he also confronted his late brother Nyaika about the illegal sale of his land who also wrote PE8 to the 1st appellant intimating to him that the land he (Nyaika) had - sold to him (the 1st 12 appellant) was not his (Nyaka's). In PE8 which was not objected to by the appellants or discredited, the late Nyaika indicated that he had never sold the suit land to the 1st appellant but only pledged the land to him and the said Kibanja - was not his. He also admitted that he knew about the money he received from the 1st 15 appellant and was willing to refund it to the 1st appellant. This evidence was not countered by the appellants or discredited. - The 1st 18 appellant claimed that he bought the land in issue from George Nyaika who had bought it from Kalenzi David. He stated that George Nyaika gave him the agreement where he bought the suit land from Kalenzi and a tenancy agreement from - 21 Municipal Council. He however did not present any of the said documents throughout the trial. All the defense witnesses acknowledged that the suit land belonged to Kalenzi David. The 1st appellant failed to demonstrate how the land - 24 moved from Kalenzi David to George Nyaika from whom he bought the suit land.


He failed to prove that indeed Nyaika had any title in the suit land which he could pass to him.

- 3 The settled principle of law is that one cannot pass on a better title than he or she possesses. (See: *George Ojwang v WisonBagonza, C. A. C. A No. 25 of 2002*). In this case the 1st defendant failed to prove that indeed Nyaika George had any title in the - 6 suit land which he could pass to him. The land did not belong to Nyaika, who had no interest to pass on to the 1st appellant, and this could have easily been established by the 1st appellant if he had carried out reasonable due diligence prior to purchase. - Therefore, the transaction that the 1st 9 appellant entered into with the said Nyaika George was illegal, null and void for want of title in the suit land by the said Nyaika George. I therefore agree with the finding of the trial Magistrate that the 1 st defendant - 12 purchased land from a fraud star who did not possess any lawful title to it. He therefore rightly declared the Respondent the owner of the suit land.

Learned counsel also contended that the learned trial Magistrate erred when he found the 2nd 15 appellant a trespasser who had no developments on the suit land. In the evidence of PW1 he stated that all that the 2nd appellant did was to report a case of trespasser against him (respondent) and he was arrested. That it was the reason he sued the 2nd 18 appellant.

In my re-evaluation, I have not found any act by the 2 nd appellant on the suit land to warrant declaring him a trespasser. In his evidence as DW5, he stated that he had no

- 21 interest in the suit land and that the land belonged to his cousin sister Eunice Rufunda. There was no evidence establishing the 2nd appellant's entry on the suit land to constitute trespass. I thus agree that the learned trial Chief Magistrate erred - in law and fact when he found and declared the 2nd 24 appellant a trespasser on the suit


land. The appeal in Ground 2 succeeds only in regard to the 2nd appellant and fails in regard to the 1st appellant. The appeal fails in respect of all the other grounds of 3 appeal. The following orders are issued:

- **(1)The Respondent failed to prove his claim against the 2nd appellant and thus the respondent's claim against the 2nd appellant stands dismissed with costs awarded to the 2nd** 6 **appellant in the High Court and the court below.** - **(2)The 1st appellant shall meet the respondent's costs of this appeal and in** - 9 **the court below.**

**I so order.**


12 Vincent Wagona **High Court Judge FORTPORTAL** 15 **DATE: 14/11/2024**