Lukungu v Naigaga (Civil Appeal 94 of 2022) [2024] UGHC 982 (4 October 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT IGANGA

## CIVIL APPEAL NO. 94 OF 2022

# (Arising From Iganga Civil Suit No. 033 of 2022)

LUKUNGU AWALI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

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NAIGAGA MADINA: RESPONDENT

# BEFORE: HON. MR. JUSTICE BATEMA N. D. A, JUDGE

### **JUDGMENT**

This is an Appeal from the Judgment and orders of HIS WORSHIP BUSULWA IVAN, Magistrate Grade 1 sitting at Iganga Chief Magistrate's Court.

### **Introduction**

This is a dispute over ownership of land situate at Kigulu- Luwerera village, Magogo parish, Nawanyingi Sub county, Iganga District measuring approximately 50ft by 100ft between siblings.

Lukungu Awali, the Appellant/ Defendant claims that around 1999, he acquired the suit land through purchase at a total consideration of UGX. 600,000/= (Uganda Shillings Six Hundred Thousand) from Naigaga Madina, the Respondent but never executed a written agreement to that effect. Lukungu Awaali argues that upon handing over the said consideration to Naigaga Madina in the presence of his other siblings, Naigaga Zainabu, Naigaga Zulaika and his mother, Khadija Kyazike, he was granted vacant possession. Lukungu Awaali finally argues that he has since 1999 been occupying and utilizing the suit land with his mother


uninterrupted and that Naigaga Madina is an immediate neighbor but who no longer has claim over the suit land.

- On the other hand, Naigaga Madina, the Respondent/ Plaintiff claims that the suit land belongs to her having inherited the same from her husband, the late 30 Alimansi Wakabi. Naigaga Madina, further claims that upon the death of her husband in the 1970s, she continued to occupy the suit land with her children undisturbed by any one. That later, Naigaga Madina brought her frail mother to nurse her from her home and it is then that Lukungu Awaali, the Appellant came along since he had been living and staying with the Respondent's mother. Naigaga Madina finally argues that while she constructed a permanent house for her mother to live in with Lukungu Awaali and other siblings, the suit land remained hers and the same has never been sold to the Appellant. - This dispute was first handled by the LC11 Court of Magogo Parish which found 40 that the contested land and house belonged to Naigaga Madina and her late husband Alimansi Wakabi and their children. The LC11 Court further found that the Appellant had failed to prove his claims of ownership since he didn't produce any purchase agreement.

On his part, the learned trial Magistrate found for the Respondent too, holding that the Appellant is a trespasser on the suit land having failed to produce any purchase agreement to prove how he acquired the same and yet failed to explain away major contradictions surrounding the purported sale/ transaction with the Respondent. The trial Magistrate further ordered the Appellant to surrender vacant possession of the suit land to the Respondent, permanent injunction and general damages of UGX. 5,000,000/= and costs of the suit. The Appellant being aggrieved and dissatisfied with the decision filed this appeal.

#### **Grounds of Appeal**

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1. That the trial Magistrate erred in law and fact when he formulated new issues and resolved the same without giving the Appellant an opportunity to submit on the same.

2. That the learned trial Magistrate erred in law and fact in failing to find that the Appellant is the rightful owner of the suit land.

3. That the learned trial Magistrate erred in law and fact in finding that the Appellant trespassed or encroached on the suit land.

4. That the learned trial Magistrate erred in law and fact in capitalizing on minor contradictions in the Appellant's case to allow the Plaintiff's case.

5. That the learned trial Magistrate erred in law and fact in failing to properly evaluate the evidence on record with the result that he occasioned a miscarriage of justice.

6. The learned trial Magistrate erred in law and fact in ignoring major contradictions in the Plaintiff's case with the result that he occasioned a miscarriage of justice.

7. The learned trial Magistrate erred in law and fact in ordering the eviction of the Appellant after holding that the Respondent is not the owner of the suit land.

8. The learned trial Magistrate erred in law and fact in finding that the Appellant is not entitled to any of the remedies sought.

9. That the learned trial Magistrate erred in law and fact in awarding the Appellant outrageous and excessive damages.

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

This being the first appellate court, it is duty bound to re-evaluate, assess and scrutinize the evidence on record and arrive at its own conclusion, bearing in

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mind that it did not have the benefit of seeing, hearing and observing the demeanor of the witnesses. See Sanyu Lwanga Musoke v. Galiwango, S. C. C. A

### No. 48 of 1995.

## **Resolution of the grounds of Appeal**

The grounds of Appeal as contained in the Memorandum of Appeal filed on $5^{\rm th}$ August 2022 were poorly framed in a general and repetitive manner contrary to the provisions of Order 43 Rule 2 of the Civil Procedure Rules S1-71.

The rule stipulates;

"The memorandum shall set forth concisely and under distinct heads, the ground of the objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively".

It was unnecessary for counsel for the Appellant to raise nine (9) grounds of Appeal more so in a general and repetitive manner. However, in the interest of justice, I shall over look this procedural irregularity and focus on the material aspects/ substantiality of this Appeal. I will therefore resolve the grounds of Appeal by combining them were necessary for court's determination.

I wish to note with concern that both the Appellant and Respondent failed to comply with the court's directions as far as filing their written submissions within the scheduled time is concerned. Counsel for the Appellant filed his submissions on 17<sup>th</sup> May 2024 instead of 2<sup>nd</sup> May 2024 while Counsel for the Respondent filed his submissions on 20<sup>th</sup> May 2024 instead of 17<sup>th</sup> May 2024. Needless to say, non-compliance with court directions often affects the timelines set by court to facilitate quick disposal of matters which ultimately results into case backlog. I will however invoke the inherent powers of court and consider these late submissions for the ends of justice to be achieved.

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### Grounds 1, 2 and 3

That the trial Magistrate erred in law and fact when he formulated new issues and resolved the same without giving the Defendant an opportunity to submit on the same.

That the learned trial Magistrate erred in law and fact in failing to find that the Appellant is the rightful owner of the suit land.

That the learned trial Magistrate erred in law and fact in finding that the Appellant trespassed or encroached on the suit land.

Lukungu Awaali, the Appellant submitted that to the extent that the learned trial Magistrate changed the parties' agreed first issue from "Who owns the suit land" to "whether the Defendant is a trespasser on the suit land" without according the parties any opportunity to deliberate/ submit on the said new issue, offended Order 15 r 5(1) of the CPR and occasioned a miscarriage of justice. Counsel for the Appellant relied on the authority of *Mundua v Central Nile Transporters* Association (Misc. Civil Revision No. 003 of 2017), where court held that, at whatever stage before passing a decree the court feels it necessary, it can recast the issues after giving opportunity to the parties or their counsel to address it on the proposed amended issues. Lukungu Awaali, finally argued that the gist of the dispute between the parties is ownership of the suit land as discerned from the parties' Plaint and WSD respectively and therefore for court having gone ahead to alter this issue needed to give the parties an opportunity to deliberate on the same.

In rebuttal, Naigaga Madina, the Respondent submitted that Order 15 r 5 of the CPR empowers court at any time before passing decree to amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or

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$\alpha$ additional issues as may be necessary for determining the matters in controversy between the parties. Naigaga Madina further submitted that the learned trial Magistrate properly exercised his discretion when he rephrased the first issue $% \left\vert \mathbf{r}\right\rangle$ and even gave directions to the parties to file written submissions on the same.

$\ensuremath{\mathsf{I}}$ have perused and re-evaluated the evidence on record and $\ensuremath{\mathsf{I}}$ find that the trial Magistrate properly and rightly exercised his discretion to rephrase the first issue in line with Order 15 r 5 of the Civil Procedure Rules.

Order 15 r 5 (1) of the Civil Procedure Rules provides,

"The court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be made or framed".

My humble view is that it there is no mandatory requirement that the judicial 140 officer should first give an opportunity to parties to submit on the issues after amendment. This certainly varies on a case by case basis. In the instant case, the trial Magistrate having read both parties' pleadings and heard their evidence and arguments at trial thought it wise and rightly so in the circumstances to amend the first issue.

By amending "who owns the suit land" to "Whether the Defendants are trespassers on the suit land", the learned trial Magistrate inevitably had to resolve the issue of ownership in the first place. There would certainly be no trespass if the issue of ownership was never determined.

In Sheik Muhammed Lubowa v. Kitara Enterprises Ltd, Civil Appeal No. 4 of 150 1987, the East African Court of Appeal noted that;

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 "In order to prove the alleged trespass, it was incumbent on the appellant to prove that the disputed land belonged to him, the respondent had entered upon that land and that the entry was unlawful in that it was made without his permission or that the respondent had no claim or right or interest in the land." (Underlined for emphasis)

In the instant case, it was uncontested that the land formerly belonged to late Alimansi Wakabi as per the evidence on record and upon his demise, the said suit land formed part of the deceased's estate. It follows that Naigaga Madina, the Respondent is a beneficiary in the estate of her late husband, Alimansi Wakabi with or without Letters of Administration.

In addition to being a beneficiary as a widow, the Respondent later on 4<sup>th</sup> May 2022 obtained Letters of Administration to the deceased's estate vide *A. C No.* 55 of 2022 from the Chief Magistrate Court of Iganga and the same were not contested. The deceased's estate is therefore under the administration of Naigaga Madina, the Respondent with superior rights over the suit land than Lukungu Awaali, the Appellant.

Suffice to note, much as permission of the clan was sought by the Respondent/ widow for purposes of remaining in possession and constructing on the suit land, lack of it would not deny her interest in the property as a beneficiary and administrator in the deceased's estate.

If Lukungu Awaali, the Appellant was to purchase any land from the Respondent, it would only be lawful after the grant of the Letters of Administration and not before. As per the evidence on court record, the Appellant claims to have purchased this land from the Respondent around 1999. That was before the Respondent got the Letters of Administration. Certainly even if this court was to believe in the existence of the said transaction, of which it does not, the same

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would have been unlawful since no title/ interest would pass to the Appellant in $% \left( \mathcal{L}\right)$

Worse still, there was no documentary evidence witnessed by local authorities to prove that the Appellant bought this suit land from the widow/ Respondent. 180

From the foregoing, the Respondent cannot be said to be a trespasser and neither is her mother, Khadija Kyazike who was invited and continues to remain on the suit land on the invitation/ authorization of the Respondent. However the Appellant, who is not married in this estate, had to prove purchase which unfortunately he failed to demonstrate. Once the Respondent withdrew her authorization, the Appellant immediately became a trespasser on the suit land.

Accordingly grounds 1, 2 and 3 of this appeal fail.

## Ground 5

That the learned trial Magistrate erred in law and fact in failing to properly 190 evaluate the evidence on record with the result that he occasioned a *miscarriage of justice.*

Having discussed and resolved grounds 1, 2 and 3 in favour of the widow/ Respondent, I find that the learned trial Magistrate properly evaluated the evidence on record and occasioned no miscarriage of justice. Ground 5 fails.

### Grounds 4 and 6

That the Learned Trial Magistrate erred in law and fact in capitalizing on minor contradictions in the Defendant's case to allow the Plaintiff's case

That the trial Magistrate erred in law and fact ignoring major contradictions in the Respondent's case with the result that he occasioned a miscarriage of 200 justice

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The Appellant combined grounds 4 and 6 and submitted that the Plaintiff's case was full of grave contradictions for example the claim by the Respondent at page 6 of the record of proceeding in paragraphs lines 7, 8 & 9 that she only constructed one house on the suit land and that the Appellant had been on her land for only two years yet this was contrary to the observations at locus.

That a one Mwesigwa Zubair, PW3, the Respondent's son also testified at pages 6-7 of the record of proceedings that upon completion of the permanent house by the Respondent in 2001, that is when the Appellant asked to stay with their grandmother. That however during cross examination, at page 7, PW3 contradicted himself by testifying that the permanent house on the suit land was like 3-4 years old. That this clearly meant that the witness did not know who and when the permanent house on the suit land was built.

Finally, the Appellant submitted that PW3 at page 7 of the record, paragraph 1 told court that he occupies a portion on the suit land with the Appellant, however when court visited locus on $5^{\mbox{\scriptsize th}}$ July 2022, it observed at pages 2 & 3 of the Judgment that the entire suit land is being occupied by the Appellant and as such, this court ought to reject the Respondent's evidence as the same is full of lies and major contradictions.

In rebuttal, the Respondent submitted that there were contradictions in the 220 entire testimony of the Appellant's case for example, on the aspect of who handed over the purchase price to the Respondent. That while the Appellant, DW1 told court that it was his sister, DW2, Zainabu Naigaga that handed over the money to the Respondent, DW2 denied ever handing over the said money to the Respondent but the same was paid directly to the Respondent by the Appellant.

The Respondent further testified that there was a contradiction as to the age of PW3, Mwesigwa Zubair at the time of the purported transaction. That DW2

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stated that PW3 was 10 years old at the time. DW3, Zulaika Naigaga stated that PW3 was of the age of a University student at the time. Finally, the Respondent maintained that the entire defence was contradictory which is why the trial court disbelieved the defence case since no valid explanation was rendered to explain away the inconsistencies.

I have carefully perused and re-evaluated the evidence on record and I wish to note that there was no issue framed by court as to the age of the permanent house, when the said house was constructed and how many years the Appellant had lived and resided on the suit land. There would certainly be no contradictions on non-issues.

I would rather believe that the permanent house on the suit land was for Naigaga Madina, the Respondent built for her mother, Khadija Kyazike and that its construction was simply supervised by Lukungu Awaali. It follows that having supervised the construction of the house and entered the same with his mother does not certainly give Lukungu Awaali ownership rights over the suit land or even the house. Accordingly Grounds 4 and 6 fail.

### Grounds 7, 8 and 9

That the learned trial Magistrate erred in law and fact in ordering the eviction of the Appellant after holding that the Respondent is not the owner of the suit land.

That the learned trial Magistrate erred in law and fact in finding that the Appellant is not entitled to any of the remedies sought.

That the learned trial Magistrate erred in law and fact in awarding the 250 Respondent outrageous and excessive damages.

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With due respect to the Appellant, I find these grounds of Appeal moot. The Judgment and orders of the learned trial Magistrate are upheld. For avoidance of doubt, if the Appellant fails to peacefully surrender the suit land, he should be evicted forcefully at his own cost and embarrassment. There was no miscarriage of justice in the circumstances of this case.

In the final result, this Appeal lacks merit and is accordingly dismissed with costs.

#### **BATEMA N. D. A** 260 **JUDGE** $4/10/2024$

# **Obiter dictum**

Before I take leave of this Appeal, I note that this matter first went to the LC11 Court of Magogo which entered judgment and a copy of the same is on court record. However, I cannot tell whether it is valid or not. The learned trial Magistrate did not question whether this matter was res judicata or not. The parties seemed comfortable beginning the matter a fresh before the Magistrate Grade 1 even though the Respondent claimed in his plaint that there was a ruling of the Chief Magistrate's court to the effect that the procedure of hearing the suit was not adhered to. A copy of the said ruling was never tendered as evidence in court. This court would have expected the Plaint to be dismissed on grounds of being res judicata if the LC11 court judgment was valid instead of this matter going to full trial.

**BATEMAN. D. A IUDGE** $4/10/2024$

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