Kwesiga & 2 Others v Nabukalu & 2 Others (Civil Appeal 26 of 2024) [2025] UGHC 62 (17 February 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

## CIVIL APPEAL NO.0026 0F 2024

## (Formerly Mubende Civil Appeal No. 018 of 2017)

(Arising from Kiboga Civil Suit No.11 of 2016)

1. KWESIGA TOM

KYAMANYWA KALANZI | ...................................

3. KIMERA

#### VERSUS

1. RUTH NABUKALU MUGERWA

2. SEBINA DAN

}:::::::::::::::::::::::::::::::::::::

3. WILLY MUGERWA

# BEFORE HON. MR JUSTICE KAREMANI JAMSON. K

## **JUDGMENT**

# Introduction.

The appellants were the defendants at lower court trial while the respondents were the plaintiffs. The respondents sued the appellants jointly and severally for a declaration that they were the lawful owners of the suit land comprised in block 825 plot 10 singo at Bananywa, a declaration that the appellants are trespassers thereon, issuance of a permanent injunction, an eviction order, damages for trespass on land, award of mesne profits and any other remedies that the court deemed fit.

## Background.

The respondents' case was that they were the lawful owners of the suit land being the direct beneficiaries and administrators of the estate of the late Eronu Babumba Mugerwatheir biological father. That sometime back, the appellants without knowledge, consent and authority of the plaintiffs without any claim of right or legal excuse trespassed upon

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$\mathbf{1}$

the suit land by way of clearing/slashing, destroying the vegetation, cultivating and growing crops when the respondents were toiling for a living far away from the suit land.

In their joint written statement of defence and counterclaim, the appellants denied the respondents' claims and contended that they were not aware that the respondents were biological children or administrators of the estate of the late Eron Babumba Mugerwa. That they knew that the suit land was originally registered in the names of a one Matiya Ssentamu who sold a kibanja to the 1st appellant's maternal uncle and also sold a kibanja to the 2nd and 3rd appellants' aunt. That the 1st appellant was born and has lived on the suit land/kibanja and has never left the same was therefore a lawful occupant.

The 3rd appellant contended that he is a kibanja owner having inherited the same from his late aunt Maria Namisango who had acquired the same from the registered owner Matiya Ssentamu.

The 2nd appellant contended that he was using the land on the permission of the 3rd appellant.

In their counterclaim, the appellants prayed that court finds them to be lawful owners of the suit land and declares that the respondents are trespassers, issues an eviction order against the respondents, awards them general damages, interests and costs of the suit.

# Decision of the trial court.

The trial court found that the suit land belonged to the respondents and that the appellants were trespassers thereon. Court among other orders issued an eviction order against the appellants and granted a permanent injunction restraining the appellants, their workers or agents or any other persons claiming interest through them from trespassing onto the suit land.

## **Grounds of appeal.**

The appellants being dissatisfied with the findings of the trial court appealed to this court on the following grounds;

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- 1. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record thus leading him to reach a wrong decision. - 2. The learned trial magistrate erred in law when he held that the $1st$ and $3rd$ appellants are not bibanja holders on the suit land and went on to hold that the appellants are trespassers on the suit land. - 3. The learned trial magistrate erred in law when he decided the case without visiting the locus in quo to ascertain the evidence by the appellants that they have been on the suit land for a long time thus leading him to reach a wrong decision.

## Representation.

The appellants were represented by $M/S$ Baryabanza & Co. Advocates while the respondents were represented by $M/S$ ASPA Advocates.

Both parties were directed to file written submissions and they all complied and filed their submissions which will be considered in this judgment.

### Duty of first appellate court.

This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the court below to a fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion. This duty was well explained in the case of Father Nanensio Begumisa and three Others V Eric Tiberaga, SCCA 17 of 2000; [2004] KALR 236 thus;

"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions."

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This court therefore is enjoined to weigh the conflicting evidence and draw its own inferences and conclusions in order to come to its own decision on issues of fact as well as of law and remembering to make due allowance for the fact that it has neither seen nor heard the witnesses. The appellate court is confined to the evidence on record. **See also**; Alule Richard V Agwe Dominc HCCA No. 032 of 2014.

## **Preliminary objection.**

The learned counsel for the respondents raised a preliminary objection based on the fact the appellants' grounds of appeal offend the provisions of Order 43 Rule 1(2) of the Civil Procedure Rules. That the grounds look general and not specific as required under the law. Counsel cited the case of Attorney General v Florence Baliraine civil appeal no. 79 of 2003. He prayed that the memorandum of appeal be struck out and the appeal dismissed.

The learned counsel for the appellants made no rejoinder to the submissions and hence did not respond to the preliminary objection.

#### **Analysis of court.**

Order 43 Rule 1 Sub Rules (1) and (2) of the Civil Procedure Rules provides that every appeal to the High Court shall be preferred in the form of a memorandum signed by the appellant or his or her advocate and presented to the court or such officer as it shall appoint for that purpose and that the memorandum shall set forth, concisely and under distinct heads, grounds of objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively.

The law on the form of a memorandum of appeal has been set out in a number of authorities but all the authorities stipulate a key element of ensuring that the grounds are concise, not argumentative or narrative and must specify the points which are alleged to have been wrongfully decided, and the nature of the order which it is proposed to ask the court to make. See: Ranchobhai Shivabhai Patel Ltd and another V Henry Wambuga and another CA NO. 06/2017,

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Upon perusal of the memorandum of appeal, I have noted that it is only ground 1 that is stated in a general way faulting the trial magistrate for failing to properly evaluate the evidence on record without stating the particular evidence that was not properly evaluated.

However, I have carefully read the submissions of the appellants' counsel and they have combined their submissions of ground 1 together with ground two showing that the evidence they consider the trial magistrate not to have evaluated well is on the finding that the appellants are not bibanja holders and the court going ahead to declare them trespassers.

In my view, this cures the irregularity in ground 1 of being general since the said two grounds will be considered together. This objection fails and is overruled.

I now will proceed to determine the appeal on its merits.

## **Submissions of counsel for the appellants.**

On grounds 1 and 2, learned counsel for the appellants submitted that the trial magistrate erred in law and fact when he based his judgment on lack of documentary evidence by the appellants to hold that the appellants were not lawful bibanja owners on the suit land, without weighing the evidence adduced by the respondents and the appellants as a whole since the documents over the suit kibanja were said to have been destroyed during the war. That the evidence adduced by the respondents clearly pointed to the fact that the father of the respondents and respondents themselves were absent landlords who did not known what was taking place on the suit land until 2014 when the respondents came to the suit land and invited the people residing thereon to explain how and when they came onto the land. That had the respondents been well versed with the facts of the suit land, they would have been in position to know how each of the people on the suit land came there and when. Counsel further faulted the trial magistrate for ignoring the evidence of the appellants in proving that the suit kibanja had formerly belonged to Sentamu Matia who sold it to the $1st$ appellant's uncle whom he grew up with together

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with his mother and upon their death, being the only surviving beneficiary, he inherited the land.

Regarding the kibanja of the 3rd appellant, counsel submitted that there was clear evidence led by the appellants to the effect that the late aunt of the $3rd$ appellant called Namisango bought the kibanja from Sentamu and she used to graze and cultivate thereon. That this evidence was corroborated by the evidence of the respondents' witnesses. That the trial magistrate ignored the evidence of long use of the suit land by the 3rd appellant's aunt which could have been of great help had the magistrate visited the locus. Further that the trial magistrate ignored the evidence of DW3 who stated that Namisango (aunt of $3^{rd}$ appellant) bought the kibanja from Sentamu and the respondent's father Mugerwa bought and took title from Sentamu in 1978 which means that Namisango (aunt to 3rd appellant) and Nsolosozi (uncle to the 1st appellant) remained on the certificate of title of Mugerwa.

On ground 3 the learned counsel for the appellants faulted the trial magistrate for failing to visit the locus before deciding the suit. That this denied the court the opportunity to prove / check the evidence by the appellants that they had stayed on the suit land for a $\frac{1}{2}$ long time and also to check on the appellants' developments. That in the instant case where the appellants told court that they had very old backcloth (mitoma) trees, bananas, coffee trees, graves, remains of houses of their predecessors and that the respondents had told court that the 1st appellant's uncle was staying on another land neighbouring the suit land, it would have been of great importance for the trial magistrate to take kin interest in visiting the locus in quo. Counsel cited the case of Fernandes V Norohuna [1969] EA 506 as cited in the case of Rwanseri Abumereki V Mbabazi Peter HCCA No. 009 of 2013.

# Submissions of counsel for the respondents.

On grounds 1 and 2, the learned counsel for the respondents submitted that Sections 102, 102 and 103 of the evidence act are to the effect that whoever desires court to give

warm judgment as to any legal rights or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. That the appellants alleged to have inherited the bibanja from their uncle and aunt respectively but they did not have any proof of their allegations. That the appellants neither brought any evidence to show that their respective uncle and aunt were kibanja holders on the suit land and presented no evidence to prove their occupancy like busulu receipts. That on the other hand, the respondents brought proof that they are administrators of the estate of the late Eron Babumba Mugerwa and a copy of the certificate of land title was tendered in court. That therefore the trial magistrate properly evaluated the evidence which was on record that made him reach a decision that the appellants were not the lawful owners of the bibanja as alleged and therefore trespassers.

On ground 3, the learned counsel for the respondents submitted and cited the case of Safina Bakulimya and anor V Yusuf Musa Wamala HCCA No. 0068 of 2007 where court held that a visit to the land in dispute is not mandatory and that court moves to the locus in quo in deserving cases where it needs to verify the evidence that has been presented in court. That in the present case, the court gathered sufficient evidence to enable it reach a conclusive decision and since the appellants never moved court to visit the land in dispute, court did not see it necessary to visit the land in dispute because the issue was not about boundaries but it was about ownership which was proved to court.

## **Analysis of court.**

## Grounds 1 and 2

1. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record thus leading him to reach a wrong decision.

2. The learned trial magistrate erred in law when he held that the $1st$ and $3rd$ appellants are not bibanja holders on the suit land and went on to hold that the appellants are trespassers on the suit land.

1 Mam

I have observed that the judgment of the trial court is not paged and neither is the record of proceedings for easier reference in this judgment. However, I will go ahead to subject the evidence to a fresh and exhaustive scrutiny and re-appraisal as it is the duty of this court.

In concluding that the appellants were trespassers on the suit land, the trial magistrate relied on the evidence of the certificate of title of the suit land (PE1) which was registered in the names of the respondents. Furthermore, the trial magistrate relied on the evidence of DW4 Tindyebwa Moses the LC1 chairperson. The trial magistrate found that whereas the LC1 chairperson stated that in the meeting held on $11/8/2014$ with the family of the respondents it was agreed that Namisango (from whom the 3rd appellant derives title) and Kwesiga should stay on the land having been there on before 1995, the minutes of the said meeting were never adduced in evidence.

It was the evidence of the 1st appellant (PW1) that he was born and raised on the suit land by his late mother and his late uncle Nsolosozi whom he alleged to have been the owners of the suit kibanja. This evidence was further corroborated by the evidence of DW4 the chairperson LC1 of Kirimbi village where the suit land is situated who stated that he had known the appellants for about 30 years and got to know the 1st appellant from the time when he begun to understand.

The respondents in their evidence did not dispute the fact that they came to the village in 2014 to ascertain the tenants who were on the suit land. This was confirmed by PW2 in his evidence when he stated that in 2011, the family of the respondents held a meeting with the LC1 authorities and the tenants on the land to know how the tenants came onto the land. This clearly showed that the respondents despite being the registered owners of the land in dispute and being in possession of the certificate of title, they did not know the tenants who were on the land.

It was further undisputed evidence of DW4 the Chairman LC1 of the area that the appellants did not have any documents of their ownership and existence on the suit land

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but he knew them to have been residing on the suit land through their uncle and aunt respectively who died, were buried thereon and left them on that land.

The trial magistrate mainly based his findings on the fact that the appellants did not have any documents to show that they held any kibanja interests in the suit land or where the people they claimed their interests from derived theirs.

In the case of Owembabazi Enid V Guarantee Trust Bank Limited High Court Commercial Division Case No.63 of 2018 (unreported) Justice Mubiru held that a Kibanja is a form of land holding or tenancy that is subject to customs and traditions of Baganda characterised by user rights and ownership of the developments on the land in perpetuity, subject to payment of an annual rent busulu and correct social behaviour, distinct and separate from ownership of the land on which the developments are made and in respect of which the user and the occupancy rights exist.

From the provisions of Article 237 of the Constitution of Uganda 1995 and Section 29 of the Land Act, to prove that a person is a bona fide occupant on the land, he or she must prove that they had been in occupation of the registered land un-challenged by the registered owner for 12 years at the time of coming into force of the 1995 Constitution.

In my own understanding for one to be said to be in occupation of land he or she must be in use of that land by cultivating the same, grazing on the same or by settlement or possession of same.

The 1st appellant in his evidence stated that he did not have documentation to show that he owned the kibanja neither the documentation of his late uncle because the documents got lost during the war and others were burnt in the house. That the same appellants did not have any busulu receipts and had never paid rent.

However, the appellants orally stated that had been in continued occupation of that land and their evidence was corroborated by that of their witnesses who included DW4 the Chairman LC1. It was also not challenged by the respondents that the appellants' parents

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were buried on the suit land and that the appellants had permanent crops and gardens on the suit land.

Despite the fact that the respondents claimed legal interests in the suit land, they did not know the occupants of that land until they came to ascertain who was on that land in 2014 when they called for a meeting through DW4 the Chairman LC1.

I my view the appellants brought cogent evidence that they had used and utilised the land from the time they were born before 1995 without being challenged by the registered owner. This was confirmed by the evidence of PW2 who stated that she first visited the land in 1993 with her uncle Robinson and they found Namisango (aunt of the 3rd appellant) using the land for grazing her animals and they never challenged her. This makes them bona fide occupants according to Section 29 (2) of the Land Act.

Based on the above findings, the trial magistrate indeed erred in law when he found that the 1st and 3rd appellants were not bibanja holders or bona fide occupants of the suit land.

Ground 1 and 2 accordingly succeed.

## Grounds 3

The learned trial magistrate erred in law when he decided the case without visiting the locus in quo to ascertain the evidence by the appellants that they have been on the suit land for a long time thus leading him to reach a wrong decision.

The learned counsel for the appellants faulted the trial magistrate for not visiting the locus to ascertain what the parties had advanced in their evidence.

The learned counsel for the respondents did not dispute the fact that the trial magistrate did not visit the locus in quo. From the record of proceedings there was no visit of the locus in quo.

The learned counsel for the respondents emphasized that since visiting of the locus in quo is not a mandatory procedure, the trial magistrate in this case did not find any reason for visiting the locus in quo as per the evidence presented.

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In the case of Alule Richard V Agwe Domnic Civil appeal no. 32 of 2014, the court observed as follows;

"The determination of whether or not a court should inspect the locus in quo is an exercise of discretion of the magistrate which depends on the circumstances of each case. That the decision essentially rests on the need for enabling the magistrate to understand better the evidence adduced before him or her during the testimony of witnesses in court. It may also be for purposes of enabling the magistrate to make up his or her mind on disputed points raised as to something to be seen there."

"Locus in quo" is a Latin word meaning "scene of the event". It is a place where anything is alleged to have been done.

The visiting of the locus in quo is not a mandatory procedure. It is done at the discretion of the court. What has to be established is whether the circumstances of this case necessitated the visiting of the locus in quo or nor and whether failure to do so occasioned a miscarriage of justice.

It was the evidence of PW2 that the respondents had been utilizing the land since 1990 for cultivation to date. On the other hand, DW2 (3rdappellant) testified that nothing on the suit land belonged to the respondents. It was the evidence of the 1st and 3rd appellants that they were born and raised on the suit land and that they even buried their parents thereon. That they had several crops and gardens planted for over 30 years ago

The above circumstances should have compelled the trial magistrate to visit the locus and ascertain whether what the witnesses had stated was correct.

The appellants' defence and counterclaim was hinged on being bibanja holders and having been on the land since their birth and having all those features of graves, gardens and houses thereon. Observation of these features would have shed more light on their claims. This is a case where I believe it was necessary for the court to visit the locus in quo so as to ascertain the facts that were being stated in the evidence of the witnesses before court.

TARAM

The failure to visit the locus in this case was in my view irregular.

Ground 3 equally succeeds.

However, since the respondents did not challenge the claims by the appellants of existence of the features alleged to be on the land and the trial magistrate equally referred to these features. It is evident that these features existed on the land.

For that reason, I find that there was no miscarriage of justice occasioned and I will not order a retrial.

In all this appeal succeeds with the following orders;

- 1. The judgment and decree of the trial court are hereby set aside. - 2. The respondents/plaintiff's case stand dismissed. - 3. The counterclaim is allowed and the $1^{st}$ and $3^{rd}$ appellants are declared to be bona fide occupants on the suit land. - 4. Costs of the appeal and the court below are awarded to the appellants.

I so order.

Mam

KAREMANI JAMSON. K

**JUDGE**

$17/2/2025$