Lukwago v Lubuuka (Civil Appeal 84 of 2022) [2025] UGHCLD 32 (28 February 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL NO. 0084 OF 2022 (Arising from The Chief Magistrate's Court of Entebbe at Entebbe Civil Suit No. 090 of 2016) LUKWAGO PHILLIP :::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

# **VERSUS**

**LUBUUKA DAVID ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **JUDGEMENT**

# *Introduction;*

1. This is an appeal against the judgment and orders of Her Worship Nakitende Juliet, Chief Magistrate, of the Chief Magistrates Court of Entebbe at Entebbe delivered on the 7th day of September, 2022; Lubuuka David Versus Lukwago Phillip. In the lower Court, Respondent sued the appellant for trespass and sought orders inter alia; a declaration that the suit land comprised in FRV409 Block 269 Plot 398 and Plot 397 belongs to the Respondent, that the defendant

is a trespasser thereon, an order of vacant possession, general damages and costs of the suit.

### *Plaintiff's case in the lower Court*

- 2. The plaintiff'/ respondents case briefly is that he purchased the suit land from Uganda Company (Holding) Ltd on 23rd July 2004 and 2002 respectively. That Uganda Company (Holding) Ltd instructed its lawyers of M/s Kateera Kagumire Advocates & Solicitors to transfer the property into the plaintiff's names which was done. In 2012, the defendant, without the plaintiff's knowledge, consent & approval trespassed onto the plaintiff's land which acts the plaintiff objected to and on or about 9th January 2013, the defendant requested the plaintiff to recognise him as a tenant/kibanja holder on his land which the plaintiff rejected. - 3. That on 4/4/2013, the defendant through his lawyers of M/s Mbogo & Co. Advocates formally requested the plaintiff to offer him a Kibanja on his land which he rejected and demanded vacant possession of the land short of which he would consider the defendant a trespasser. That at the time of purchase, the suit land was vacant and free from any third-party rights thus the defendant has no recognizable interest in the same.

### *Defendant' case in the lower court.*

- 4. The Appellant/defendant/counterclaimant filed his written statement of defence and a counterclaim contending that he purchased a Kibanja interest from Naziru Nsubuga in 1998 who had also purchased the same in 1997 and was never disturbed by the predecessors in title. Later the counterclaimant purchased a Mailo interest in the land but on processing the title, the counter defendant fraudulently included part of the counter claimant's land in the title without his knowledge. - 5. That when the defendant/counterclaimant wrote the letters in question, he was not requesting to be offered Kibanja interest but rather to be allowed to purchase the Mailo interest and the plaintiff never replied to any of the letters. The defendant by counterclaim purported to commence criminal proceedings against the counter defendant aimed at arm twisting him to surrender the land but upon accessing the facts terminated the same. - 6. The counter claimant averred that the counter defendant obtained the title over his land fraudulently and listed the following particulars of fraud;

- i) Colliding with the surveyor's M/s Uganda Company (Holdings) Ltd to include the counterclaimants land in his title. - ii) Surveying the land in question without consulting the counter claimant/plaintiff. - iii) Falsely claiming that the land in question belongs to him whereas not. - 7. The trial Court delivered judgment in favour of the Respondent with declarations that the suit land belongs to the plaintiff now Respondent, an order for vacant possession from the suit land, General damages of Ug shs 20,000,000/= and costs for both the suit and the counter claim were awarded to the plaintiff/Respondent. The appellant being dissatisfied with the judgement and orders of the trial Court, he filed the instant appeal. - 8. The appeal is premised on the following grounds; - *i) The Learned Trial Chief Magistrate erred in law and fact when she involved third parties in writing the judgement thus occasioning a miscarriage of justice.* - *ii) The Learned Trial Chief Magistrate erred in law and fact when she approached the matter in a biased way by*

*applying and relying on the Respondent's evidence and submissions only.*

- *iii) The Learned Trial Chief Magistrate failed to properly evaluate the evidence on record thereby arriving at the wrong conclusion that the Respondent did not fraudulently acquire the certificate of title and thus dismissing the appellant's counter claim.* - *iv)The Learned Trial Chief Magistrate erred in law and fact when she held that the appellant has never owned a Kibanja on the suit land.* - *v) The Learned Trial Chief Magistrate erred in law and fact when she held that the agreements presented by the appellant were forgeries made with the intention of legitimizing his claim on the land.* - *vi)The Learned Trail Chief Magistrate erred in law and fact when she held that the Appellant is a trespasser on the suit land thereby occasioning a miscarriage of justice.* - *vii) The Learned Trail Chief Magistrate erred in law and fact when she awarded general damages of Ug shs 20,000,000 (Twenty Million shillings only) to the*

*Respondent when no scintilla of evidence was led on the same.*

# *Representation*;

9. The appellant was represented by Counsel Musimenta Sam of M/S Obed Mwebasa & Associated Advocates whereas the respondent was represented by M/S Maven Advocates.

# *Resolution and Determination of the grounds;*

10. This being a first appeal from the Chief Magistrate Court to the High Court in exercise of its original jurisdiction the duty of this Court is to re appraise the evidence presented to the trial Court, subject it to a fresh and exhaustive scrutiny and come to its own conclusion. (See

# *Nasensio Begumisa & Others versus Eric Tibebaga Supreme Court Civil Appeal No. 17/ 2002*)

- 11. I will now proceed and determine the grounds of appeal in the respective order in which they were argued. - **i) The Learned Trial Chief Magistrate erred in law and fact when she involved third parties in writing the judgement thus occasioning a miscarriage of justice.**

12. Counsel for the appellant in his submissions stated that it is a core principle of our justice system that justice must be delivered to the public without the slightest fear or favour. That the trial Chief Magistrate elected to trade and or sell justice contrary to the provisions of Article 126 (2) of the Constitution of Uganda. That the Chief Magistrate wrote in her judgement at page 197 of the record of appeal line 25 that

# *"In light of the above, we submit that in the absence of that crucial information, the purported purchase agreement fronted by the defendant leaves no other damming conclusion other than the fact that they are concoctions"*

13. Counsel for the appellant further submitted that it's alarming how a Magistrate submits in a judgement and that notwithstanding the above excerpt is one and the same with the submissions for counsel for the Respondent as per page 164 of the record of appeal which leads to a conclusion that the author of the Respondent's submissions in the lower Court was one and the same of the Court judgment thus the Chief Magistrate involved 3rd parties in writing the judgement.

# **Consideration of Ground 1**

- 14. A careful examination of the judgement in Civil Suit No. 90 of 2016, delivered by Her Worship Nakitende Juliet reveals that the paragraph in question, though identical to the defendant's now Respondent's submission, does not on its own amount to proof that the Trial Chief Magistrate abdicated her judicial duty or improperly involved third parties in the writing of the judgement. It is not uncommon for judicial officers to incorporate or adopt well-reasoned arguments from the parties, provided that they independently evaluate the evidence and apply the law. - 15. The repetition of a paragraph verbatim may, at worst, indicate an accidental slip or an oversight in editing rather than an external influence over the decision-making process. Furthermore, for an appellate Court to interfere with the lower Court's decision on such a ground, there must be clear evidence of judicial misconduct or bias. Mere similarity or wording does not suffice. - 16. **Article 128 (1) of the Constitution of the Republic of Uganda** enshrines the independence of the judiciary providing that in exercise of judicial power, the Courts shall be independent and shall not be subject to control or direction of any person or authority. This constitutional mandate ensures that judicial officers make decisions

based solely on their impartial assessment of the law and facts free from external influence.

17. The key consideration is whether the Magistrate's reasoning, taken as a whole, demonstrates independent analysis. Unless it can be shown that the judgement was wholly reliant on external input without proper judicial consideration. The mere inclusion of a paragraph identical to that in the defendant's now Respondent's submissions does not in itself substantiate the claims or allegations of third-party involvement or a breach of judicial independence.

Therefore, this ground of appeal cannot stand and the same is resolved in the negative.

# **ii) The Learned Trial Chief Magistrate erred in law and fact when she approached the matter in a biased way by applying and relying on the Respondent's evidence and submissions only.**

9 18. Counsel relied on the authority of **Kyambogo University v Prof. Omollo Ndeige CA No. 341 of 2013** that it is a well-known norm of the justice system that justice must be delivered impartially. That the Learned Trial Chief Magistrate only considered the submissions made by Counsel for the Respondent and hardly considered the Appellant's submissions. That page 196 and 163 from the judgment in the record of appeal was just a replica of the Respondent's submissions.

## **Analysis by Court**

- 19. The appellant contends that the trial Chief Magistrate failed to consider his submissions because certain paragraphs in the judgement mirror the defendant's submissions. However, it is well established in law that submissions by parties are not evidence but merely persuasive arguments meant to aid the court in reaching a decision. A judicial officer is not bound to adopt any party's submissions wholesale but must base their decision on an independent assessment of the facts and applicable law. - 20. The mere presence of identical wording between the defendant's submissions and the judgement does not, in itself, prove that the appellant's submissions were disregarded. The key question is whether the magistrate engaged with the issues raised by both parties and provided reasoned conclusions. A reading of the entire judgement must be undertaken holistically to determine whether the appellant's arguments were considered, rather than focusing on isolated similarities in wording.

- 21. Moreover, appellate Courts have consistently held that a judgement should not be overturned simply because a magistrate found one party's arguments more persuasive than the other's provided there is a sound legal and factual basis for the decision. In the absence of evidence that the magistrate ignored or excluded the appellant's submissions. - 22. The principle of law is that a Court has no other sources of generating its decision except from the solid facts established before it and from the law governing the subject matter of litigation before it*. See; Brian*

## *Kaggwa versus Peter Muramira, Civil Appeal No. 26 of 2009.*

- 23. Submissions are only convincing but not binding on the trial judge and do not constitute binding evidence. They do not possess binding authority over the judicial officer's determination. They can only be adopted if they align with the judicial officer's independent analysis of the evidence and the law applicable. - 24. The presence of similar or identical language doesn't inherently signify that the Magistrate disregarded the appellant's submissions and for the appellate Court to overturn a decision based on such grounds there must be compelling evidence demonstrating that the trial Magistrate

failed to consider material aspects of the appellant's case which is not the issue in the instant case.

Therefore, this ground of appeal is unsustainable as the same lacks merit.

# **iii) The Learned Trial Chief Magistrate failed to properly evaluate the evidence on record thereby arriving at the wrong conclusion that the Respondent did not fraudulently acquire the certificate of title and thus dismissing the appellant's counter claim.**

25. Counsel in his submissions stated that indefeasibility of title is one of the cornerstone principles in land transactions and the exception to the same is fraud. He relied on the authority of **Fredrick Zaabwe v Orient Bank & others SCCA No. 4 of 2006** to define what amounts to fraud. That the appellant pleaded in his counter claim the aspect of fraud and stated in its particulars thereof which included colluding with a surveyor to include the appellant's Kibanja and surveying the same without the knowledge and consent of the appellant.

- 26. That from the evidence on record, it is not disputed that the appellant herein bought the land in 1998 and he remained firm during cross examination which implied that the appellant was already in possession before the Respondent obtained a certificate of title. That there was collusion with a surveyor from Uganda Company (Holdings) Ltd who included the appellant's piece of land and a simple corroboration for this is the altered plot on the receipt, the original receipt had Plot 397 and it was changed to 398 using a green pen. That Plot 398 was fraudulently included on the respondent's title to intentionally defeat the appellant's equitable interest on the land. - 27. That the Respondent did not have a survey report that the land was actually surveyed. Further that the reliance on the evidence of PW2 (Ahimbisibwe Pope) was a great error of law since he stated under paragraph 2 of his witness statement that he started working with M/s Kateera Kagumire Advocates in 2001 and under paragraph 8 he states that the land was bare or vacant when it was surveyed and subdivided in 1996. It creates doubt of how he could have known what events that transpired in 1996. Therefore, the

respondent fraudulently included the appellant's Kibanja on his certificate of title when carrying out the survey.

# *Analysis by Court*

- 28. I have carefully perused the pleadings and the evidence adduced, the judgement of the trial Court and the submissions. It is the Appellant's contention that the Respondent fraudulently acquired the certificate of title and among the particulars of fraud as set out in the Appellant's counter claim are; - i) Colluding with the surveyor of M/s Uganda Company (Holdings) Limited to include the counterclaimants land in title. - ii) Surveying the land in question without consulting the plaintiff - iii)Falsely claiming that the land in question belongs to him whereas not. - 29. The certificates of title for the suit land exhibits **Exh P6** and **Exh p7** are duly registered in the names of the Respondent having been transferred from Uganda Company (Holdings) Limited. Without any evidence to the contrary, the appellant can't merely claim that the suit land does not belong to the Respondent. - 30. Further still, **Section 59 of the Registration of Titles Act Cap 240** provides that certificate of title is conclusive evidence of ownership. The

Appellant did not adduce any evidence to challenge the Respondent's title but rather sought to acquire an interest on his land when he wrote a letter through his Lawyers of M/s Mbogo & Co Advocates offering to pay ground rent which offer the Respondent declined.

- 31. The appellant also stated among the particulars of fraud that the Respondent colluded with the surveyors of M/s Uganda Company (Holdings) Limited to include the appellant's land in title as well as surveying the land without consulting him. The Respondent (the plaintiff and PW1) stated under paragraph 2 and 6 of his witness statement that he was given an offer to purchase land comprised in FRV 409 Plot 397 around 1996 and subsequently Plot 398 which was neighboring Plot 397. He further stated under paragraph 17 that he had no role to play in the process of survey and creation of titles for the said land as the same was handled by Uganda Company (Holding) ltd, the vendor and its lawyers of M/s Kateera Kagumire Advocates. - 32. This evidence was further corroborated by that of PW2 Ahimbisibwe Pope who stated under paragraph 8 of his witness statement that the survey and subdivision of the vacant/ unoccupied pieces of land was done by the vendor and concluded with the issuance of deed plans/blue prints on 27th May 1996. The Appellant in attempt to water

down the evidence of PW2 when he stated that the land was surveyed in 1996 but he only started working with M/s Kateera Kagumire Advocates in 2001. I find this argent rather insubstantial because the said information can be inferred from the documentary evidence presented.

- 33. A clear scrutiny of Exhibits Exh p6 and p7, the deed plans to be particular, bear a date of 27th May 1996 signed by the Commissioner of survey and mapping. The former registered proprietor Uganda Company (Holding) Limited was registered onto Plot 397 on 15th August 2002 vide instrument no. 326858 and registered onto Plot 398 on 29th July 2004 vide instrument no. 345308. The Respondent stated in paragraph 4 (i) of the plaint that he purchased the suit land from Uganda Company (Holding) Limited on 23rd July 2004 and 2002 respectively. This means that by the time the Respondent purchased the suit property the same was already surveyed and titled thus the allegations by the appellant that the Respondent colluded with the surveyors of M/s Uganda Company (Holdings) Limited to survey and include his land onto the Respondents title are unsubstantiated. - 34. Allegations of fraud are more serious in nature and are required to be specifically pleaded and strictly proved before a Court of law by the

person alleging it. The standard of proof in allegations of fraud is slightly higher than that in ordinary civil suits. In **Kampala Bottlers ltd v Damanico (U) Ltd SCCA No. 22 of 1992**, Court states that fraud must be strictly proved, the burden being heavier than one on balance of probabilities generally applied in civil matters.

- 35. As rightly held, the defendant now appellant did not lead any evidence to support his allegations of fraud and thus failed to discharge his duty to prove the same against the Counterdefendant now Respondent and I find no reason to depart from the said findings. - 36. Thus, this ground also fails and the same is resolved in the negative

# **iv)The Learned Trial Chief Magistrate erred in law and fact when she held that the appellant has never owned a Kibanja on the suit land.**

- 37. The appellant's counsel in his submissions relied on the authority of **Ojwang v Wilson Bagonza CACA No. 25 of 2002** where Court noted that for one to claim an interest in land, he or she must show that he or she acquired an interest from someone who previously had an interest or title thereto. - 38. That the appellant pleaded from his defence that he purchased an equitable interest from Hajji Naziru Nsubuga in 1998 and the

question to be answered was whether Naziru Nsubuga had an equitable interest on the land. Lukwago Phillip while leading evidence in chief testified that he purchased the land from Naziru who had a semi-permanent house on the land which he demolished to build a modern home that he lives on. It was further stated that Naziru purchased from faith who equally had an equitable interest on the land.

39. That DW3 corroborated the testimony of the appellant that he had actually purchased from Faith and there was a semi-permanent structure on the land and the appellant provided agreements from which he purchased that clearly indicated the size of the disputed land. This evidence was further corroborated by the testimony of DW2 (The LC1 Chairperson) where he confirmed that upon presentation of the said agreements, he was able to verify that the measurements of the land depicted in the agreement rhymed with those on ground. Therefore, the learned Trial Chief Magistrate erred in both law and fact to hold that the appellant did not own a Kibanja on the suit land.

## **Analysis of Court** - 40. The Appellant stated in his witness statement under paragraph 2 that before he purchased the land, he made due diligence and discovered that Naziru Nsubuga had purchased the land from Faith Kiiza. - 41. The appellant further states under paragraph 4 of the witness statement *"Later, I learnt that the counter defendant purchased land adjacent to mine from a one Kasujja through a certain person"* - 42. He further states that at the time he purchased the Kibanja, the same had a semi-finished house which he demolished and constructed another house where he now stays with his family. During cross examination, the appellant was handed the sale agreements Exh D1A and DIB and Exh D2A -D2B, on which he was cross examined and he informed Court that the two agreements do not state that the Kibanja Faith Kizza was selling to Naziru Nsubuga had a semi- finished structure. That his agreement with Naziru did not also show that there was a semi-finished structure on the land. - 43. In a bid to corroborate his evidence, the Appellant tried to rely on the evidence of DW2 (Mukiibi Charles) who however stated during cross examination that the evidence in his witness statement was

got from the defendant now appellant thus rendering the same flimsy.

- 44. DW2 further informed Court that the landlord was Mitchell Cotts since they were all under or tenants of Mitchell Cotts who did not sign the agreements. DW3, Hajji Naziru Nsubuga informed Court during cross examination that the agreement does not state the boundaries of the Kibanja, it does not mention the neighbours to the same, the registered proprietor or owner of the land, the block and plot on which the plot was situate and not even the developments on the same. - 45. The Respondent however led evidence to show that by the time he purchased the said plots, he physically visited and inspected the same and they were vacant. The sale agreements clearly stated under clause 4 and 3 respectively, that the land was free from encumbrances. This evidence was corroborated by that of PW2 who stated that he personally prepared and witnessed the sale agreements and their firm handled the process of conveyancing. - 46. PW2 further stated that most times for the vacant plots that were being sold by Uganda Company Holding limited, it was a practice that a lawyer or clerk from the firm would visit the pieces of land

together with the company's internal surveyor to confirm that the same were unoccupied and without any third-party claims. That by the time the Respondent acquired Plots 39 and 398, they were unincumbered and with no third-party claims, that he visited the land with Mr. Kagumire to establish whether it was within the polio centre and this evidence was uncontroverted.

- 47. Whilst resolving the issue at hand the trial Court relied on the provisions of Section 29(1) of the Land Act to define a bonafide occupant as a person who before the coming into force of the constitution had occupied, utilized or developed any land unchallenged by the Registered owner or agent of the registered owner for twelve years or more or had been settled on the land by government or an agent of Government which may include a local authority. In her analysis she came to a conclusion that the purported agreements do not show that any person had owned, occupied and utilized the suit land for 12years before coming into force of the constitution before he/ she could purportedly sell the same to Faith Kizza in 1997. - 21 48. She further had two questioned that remained unanswered; from whom did Faith Kizza acquire the alleged piece of land she

purportedly sold to Naziru Nsubuga? And when did he or she sell that piece of land to Faith Kizza? And yet there was no evidence on record that could answer the said questions. Thus, she concluded that Faith Kizza could not purport to pass on a Kibanja interest that she did not have to Naziru Nsubuga.

- 49. That the agreements were suspected since none of them mentioned the person from whom Faith Kizza allegedly acquired the plot, how much she purchased it nor do they mention the neighbours and boundaries of the said plot and the particulars of the land (Block and Plot) on which the Kibanja is located. That the said agreements lacked material content which led the Trial Chief Magistrate to suspect that the same were forgeries made with the intention of legitimizing the defendant's now Appellant's claim in the suit land. - 50. Be that as it may, the Appellant through his Lawyers of Mbogo & Co. Advocates wrote letters to the Respondent, wanting to comply with the law regarding tenants by occupancy and pay nominal ground rent as required by law starting from January 2013. The Respondent declined and informed him to desist from his acts of trespass. The Respondent further filed a complaint at police vide HQS-CO-0001-2016/CID HQS GEF 641-2013, Uganda v Lukwago

Phillips, for criminal trespass however, he was advised to pursue the matter in a civil Court.

- 51. The Respondent also pleaded in his plaint that the defendant now appellant in around 2012, without his consent and knowledge trespassed onto the suit land this fact was never rebutted not even during cross examination. - 52. The ultimate question before this Court is to determine whether the Appellant indeed has any interest in the suit land. The critical gaps in the Appellant's documentation raised doubt about the authenticity of his claim: - i. The agreements did not specify from whom Faith Kizza acquired the land. - ii. The agreements lacked details such as boundaries, neighbouring owners, and the registered proprietor. - iii. There was no supporting evidence to confirm that Faith Kizza had a legitimate interest to transfer to Naziru Nsubuga.

53. The burden of proof laid with the Appellant to establish a **clear chain of ownership** from Faith Kizza to Naziru Nsubuga and subsequently to himself. However, the **absence of documentary evidence** tracing the original ownership of the land fatally weakens his claim. The Appellant's

reliance on a Kibanja claim under the Land Act is misplaced, as there is no proof that Faith Kizza or Naziru Nsubuga satisfied the statutory requirements of a bona fide occupant. There was no proof that the Appellant or his predecessors had occupied the land for twelve years before the 1995 Constitution or had been settled there by the government as they all claim to assert ownership after the said period.

- 54. Be that as it may all the purported transactions were done on land whose Registered proprietor was known at the time, Mitchell Cotts as openly admitted by DW2 but none of the parties sought consent therefrom. The Appellant sought to legitimize his interest and stay on the land when he wrote to the Respondent seeking to start paying ground rent to accord him the status of a kibanja owner which the Respondent declined. - 55. Accordingly, this Court agrees with the findings of the Trial Chief Magistrate that the Appellant does not have a legitimate claim to the suit land. Therefore, the instant ground is resolved in the negative.

# **v) The Learned Trial Chief Magistrate erred in law and fact when she held that the agreements presented by**

### **the appellant were forgeries made with the intention**

### **of legitimizing his claim on the land.**

- 55. The Appellant's Counsel whilst relying on Section 319 of the Penal Code Act defined forgery as the making of a false document with intent to defraud or deceive. That for a Court to adjudicate on forgery it must be satisfied beyond reasonable doubt. That there was no police report or any scintilla of evidence to prove the alleged forgery thus it cannot be said to exist. - 56. Counsel further submitted that the Court of appeal previously held in **Ojwang v Wilson Bagonza CACA No. 25 of 2002** that where forgery is pleaded in civil matters and the plaintiff doesn't show evidence of the alleged forgery, then the prayer is deemed to fail. That unfortunately, Counsel for the Respondent successfully hoodwinked the Court and on page 197 of the record of appeal, the Learned Trial Chief Magistrate agrees with him and ironically ends up submitting in her judgement and she says;

*"In light of the above, we submit that in the absence of that crucial information, the purported purchase* *agreements fronted by the defendant leave no other damning conclusion other than the fact that they are concoctions made by the defendant with the facilitation of other individuals to legitimize his otherwise nonexistent interest in the suit land"*

57. It was counsel for the appellant's submission that in the absence of any concrete evidence to support the forgeries, the learned trial Chief Magistrate grossly erred in law and fact when she held that the appellant's agreements were forgeries.

## *Analysis by Court*

- 58. As earlier noted, allegations of fraud are more serious in nature and are required to be specifically pleaded and strictly proved before a Court of law by the person alleging it. The primary issue before this Court is whether the Learned Trial Chief Magistrate erred in law and fact by concluding that the agreements relied upon by the Appellant were forged in the absence of substantive proof. - 59. Forgery, as defined under Section 319 of the Penal Code Act, requires proof of (i) the making of a false document and (ii) an intent to defraud or deceive. In criminal matters, the standard

of proof is beyond a reasonable doubt, whereas in civil matters, a party alleging forgery must at least provide cogent evidence to substantiate the claim.

- 60. In the former ground, this Court found the sale agreements adduced by the Appellant to substantiate his claim in the land had critical gaps because; - i) The agreements did not specify from whom Faith Kizza acquired the land. - ii) The agreements lacked details such as boundaries, neighbouring owners, and the registered proprietor. - iii)There was no supporting evidence to confirm that Faith Kizza had a legitimate interest to transfer to Naziru Nsubuga. - 61. The Appellant failed to establish a **clear chain of ownership** of the suit land from Faith Kizza to Naziru Nsubuga and subsequently to himself. There was no evidence on Court record tracing the original ownership of the land which fatally weakened the Appellant's claim thus Court could not rely on the same to legitimize the Appellant's stay on the land.

### **vi)The Learned Trial Chief Magistrate erred in law and**

**fact when she held that the Appellant is a trespasser**

# **on the suit land thereby occasioning a miscarriage of justice.**

- 62. Counsel for the appellant submitted that the law on trespass to land was clearly stated and defined in the case of **Justine E. M. N Lutaaya v Sterling Civil Engineering Company CA No. 11 of 2002,** that trespass to land occurs when a person makes an unauthorized entry upon land and thereby interferes or portends to interfere with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed not against the land but against the person who is in actual or constructive possession of the land. - 63. That the pertinent question to be answered is; was there unlawful entry by the appellant to the suit land? That the appellant had a Kibanja interest and there was no way he could have been a trespasser on the suit land.

# *Analysis by Court*

64. The law on trespass to land is well established in Justine **E. M. N Lutaaya v Sterling Civil Engineering Company CA No. 11 of 2002**, where trespass occurs when a person makes an unauthorized entry onto land and thereby interferes, or threatens

to interfere, with another person's lawful possession of the land. The key element in determining trespass is lawful possession not necessarily ownership.

- 65. In the present case, the Appellant argues that he had Kibanja interest in the suit land, and therefore, his presence could not amount to trespass. However, as analyzed earlier, the Appellant failed to prove lawful possession because; There was no conclusive evidence that Faith Kizza, from whom the Appellant claims originates, had a legitimate claim to the land, the purported sale agreements lacked crucial details such as the original owner, and boundaries of the land and on the other hand the Respondent provided clear and uncontroverted evidence that at the time of purchase, the land was vacant and free from any claims. - 66. The Appellant's claim to be a bona fide occupant under **Section 29(1)** of the **Land Act** was unsubstantiated and since the Appellant did not prove lawful possession, his continued occupation of the suit land without the Respondent's consent amounts to trespass under the law. The Appellant's claim to a Kibanja interest has been discredited, and his occupation of the

land was lawfully justified.

67. Despite the fact that the Appellant is in possession, his possession is illegal as his entry on the land was unlawful and without authorization from the owner/ registered proprietor but only sought to legitimize the same by offering to pay ground rent to the Respondent who would in turn recognize him as a Kibanja holder on his land. Consequently, this Court upholds the findings of the lower court that the Appellant is a trespasser on the suit land, thus this ground is resolved in the negative

# **Vii) That the Learned Trial Chief Magistrate erred in law and fact when she awarded general damages of Ug shs 20,000,000 (Twenty Million shillings only) to the Respondent when no scintilla of evidence was led on the same.**

68. Counsel for the appellant submitted that the principle of general damages has always been that a party who suffers damage as a result of wrong of another should be compensated for this loss and the award of them is strictly at the discretion of Court as the principle was in **Uganda Commercial Bank v Kigozi (2002) EA 305**.

69. Counsel further submitted that the wrong suffered must be proved before Court and whereas general damages are awarded based on discretion, the discretion must be exercised judiciously. That the particulars of general damages were never laid down in the plaint and no evidence was led to show the wrong that the Respondent had suffered at the hands of the appellant thus the award of Ug shs 20,000,000 was not only excessive but also unnecessary.

## *Analysis by Court*

70. It is trite law that the award of general damages is within the discretion of the trial Court. Therefore, an appellate Court can only interfere with the award where it is proved that the trial Court acted on some wrong principle of law. *(See Francis Sembuya v. Allport*

# *Services Uganda Limited SCCA No. 06 of 1999).*

71. Further, the law is that general damages should be compensatory in nature in that they should restore some satisfaction, as far as money can do it, to the injured Plaintiff. However, where no evidence had been furnished to justify what damage or injury a party has suffered; there would be no basis for awarding the same. I am fortified by the decision in *Takiya Kashwahiri & Anor vs. Kajungu Denis, CACA*

*No. 85 of 2011.*

- 72. The Respondent stated under paragraph 4 (vii) of the plaint that the acts of the defendant now appellant have inconvenienced him to a great extent since he could not put his land to full use". Further still, having found the Appellant to have unlawfully entered onto the suit land and made developments thereon without the consent of the land owner, the same must have been a great inconvenience as the Respondent could not ably utilize his land despite having a legitimate interest in the same. - 73. The award of general damages by Court is discretionary in nature, and where the Appellate Court can only interfere where the discretion was not exercised judiciously. I therefore find that the award of general damages was sufficient for the inconvenience suffered by the Respondent at the hands of the appellant. - 74. In the result, I find no reasons to interfere with the findings of the lower court and the instant appeal is hereby dismissed by this court with no orders as to costs

### **I SO ORDER**.

### **NALUZZE AISHA BATALA**

### **Ag. JUDGE**


**Delivered electronically via ECCMIS on the 28 th day of February 2025.**