Mbambu v Kabugho (Civil Appeal 14 of 2024) [2024] UGHC 1062 (4 November 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-LD-CA-0014-2024**

**(FORMERLY FORT PORTAL HCT-01-LD-CA-0028-2022)**

**(ARISING FROM KASESE CHIEF MAGISTRATE KAS-02-CV-CS-LD-0001-2021)**

**MBAMBU ALUFRIDA========================================APPELLANT**

**VERSUS**

**KABUGHO ZULIEN========================================RESPONDENT**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**REPRESENTATION:**

Appellant represented by M/S Bagyenda & Co. Advocates.

Respondent represented by M/S Sibendire, Tayebwa & Co. Advocates.

**BACKGROUND:**

This is an appeal by which the Appellant, being aggrieved and dissatisfied with the judgment, decree and orders of His Worship Hillary Nuwagira Senior Magistrate Grade 1, delivered at Bwera appealed against the same on the following grounds:

1. The Learned Trial Magistrate erred in law and fact when he misapplied the law to the facts of the case thereby arriving at a wrong conclusion that the Defendant/Respondent is the rightful owner of the land. 2. The Learned Trial Magistrate erred in law and fact when he held that the Defendant/Respondent and her family have been in possession of the suit land uninterrupted since 1960 and was therefore not liable for trespass. 3. The Learned Trial Magistrate erred in law and fact when he dismissed the Plaintiff/Appellant’s suit with costs.

The Appellant accordingly made the following prayers:

1. The Appeal be allowed and the judgment of the lower court be set aside. 2. The suit land be declared to belong to the Appellant. 3. Costs of the Appeal and in the lower court be awarded to the Appellant.

The brief facts in this matter are as follows.

The Plaintiff/Appellant brought a suit against the Defendant/Respondent on 11th February 2021 for recovery of approximately 2 acres of land situated at Kikumbi village, Bukangara Parish, Nakiyumbu Sub-County, Kasese District. The Plaintiff/Respondent’s cause of action was stated to be trespass for which she sought the following orders:

1. Declaration that Defendant’s occupation of the suit land amounted to trespass. 2. Declaration that the suit land belongs to the Plaintiff. 3. A permanent injunction restraining the Defendant, her agents and any other person claiming right from her from further trespassing on the suit land. 4. Eviction order against the Defendant. 5. General damages 6. Mesne profits 7. Costs of the suit.

By way of background to the suit the Plaintiff/Appellant claimed that the suit land is part of her estate with her late husband and that the suit land was acquired by her late husband Kisande from the Ridge Leader Bakondwa. She further claimed to be in possession by way of cultivation on the land.

The Plaintiff/Appellant went on to claim that the Defendant/Respondent’s now deceased grandfather Matiya Kasunamira had been granted permission by the Plaintiff/Appellant’s late husband to utilize the suit land as a licensee. However, the Kasunamira had later claimed the land as his own whereupon the late Kisande had brought the matter to the attention of the Ridge Leader. However nothing had been done at the time and both Kisande and Kasunamira passed on before the matter could be resolved.

In 2008, the Plaintiff/Appellant sued the Defendant/Respondent for trespass and lost. She later successfully appealed to the LCIII Court of Nyakiyumbu but agreed to give the Defendant/Respondent an acre of the suit land in consideration for the time spent caretaking. The Defendant/Respondent successfully appealed the decision to the Chief Magistrate Court in Kasese. The Plaintiff/Appellant then successfully appealed the decision of the Chief Magistrate to the High Court whereupon the High Court ordered for retrial of the matter leading to the suit on which this appeal is founded.

In response to the suit the Defendant/Respondent contended that the suit land belonged to her late father Matiya Kasunamira. She averred that her late father Kasunamira had entered into an “engagement” with the Plaintiff/Appellant’s late husband between 1960 and 1966 by which he was given the suit land. During that time another party by the name of Mukenyera had come up to claim the same land and the Plaintiff/Appellant’s late husband had failed to act on the same despite being informed of the claim by the Defendant/Respondent’s late father.

The Defendant/Respondent further averred that her late father had engaged local authorities and that on 11th July 1968 the suit land was given to her late grandfather for his exclusive possession and ownership. The Defendant/Respondent’s father then remained in possession of the suit land till his death in 1990 whereupon he was buried on the suit land and furthermore five of the Defendant/Respondent’s siblings are buried on the suit land along with her mother and maternal grandmother.

The Defendant/Respondent contended her family had been in quiet enjoyment of the suit land until 2008 when the Plaintiff/Respondent started to claim the same land.

In addition to the contentions above, the Defendant/Respondent also raised the following preliminary objections which were considered by the lower Court:

1. The Plaintiff had no locus standi to bring the suit. 2. The Suit was time-barred and barred by limitation.

Based upon the above, His Worship Senior Magistrate Grade 1 Hillary Nuwagira heard the case and visited the locus in quo. On the 19th day of October 2022, His Worship Nuwagira delivered his judgment in which he addressed five issues:

1. Whether the Plaintiff had the locus standi to bring the suit. 2. Whether the suit was time-barred. 3. Who is the rightful owner of the land. 4. Whether Defendant is a trespasser. 5. What remedies are available to the parties.

As concerns the locus standi, His Worship Nuwagira held that the Plaintiff had the requisite locus standi as the Plaintiff had claimed the suit land as a joint tenant and was therefore entitled to the same under the doctrine of survivorship. He also held that as she had claimed the suit land was part of the estate of her late husband she was entitled as a beneficiary to the same.

On whether the suit was time-barred, His Worship Nuwagira traversed the various testimonies of the witnesses in the case held inter alia that the claim for recovery of land by the Plaintiff whether as a joint owner or beneficiary to the estate of the late Kisande was time-barred and could not be sustained in light of Section 5 of the Limitation Act. He further held that he was not persuaded that the Plaintiff was in possession of the land in order to sustain a claim of a continuous tort of trespass in order to avoid limitation.

With regard to the issue of ownership of the suit land His Worship Nuwagira held that based on the evidence in the matter the Defendant’s family had been in possession of the suit land unchallenged since 1960. He further held that the Defendant was born on the suit land and had lived there for 40 years. The Learned Magistrate also alluded to the usage of the land attributed to the Defendant during the locus visit and to that extent held that the Defendant was the rightful owner of the suit land.

His Worship Nuwagira also concluded that the Defendant could not be a trespasser on the land as her family had been in possession of the land since 1960. He subsequently gave orders to the effect that the Defendant and other beneficiaries to the estate of the late Matiya Kasunamira were the rightful owners of the suit land.

His Worship Nuwagira further granted a permanent injunction restraining the Plaintiff or any person claiming from the estate of the late Kisande from interfering with the suit land and granted costs to the Defendant.

It is on the basis of the above that the Appellant being aggrieved and dissatisfied filed this present appeal.

**Duty of the First Appellate Court:**

The duty of this Court as a first appellate court as laid down by the Supreme Court in the case of **Father Nanensio Begumisa and three others v. Eric Tiberaga Civil Appeal No. 17 of 2000** is as follows,

*“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*.”

This Court therefore has a duty to re-evaluate the evidence before the lower Court in its entirety and the subsequent decision of the Court and reach its own decision on the correctness of the decision of the lower Court taking into account the arguments of the parties in the appeal.

**Analysis of the Appeal:**

During submissions for this appeal the Appellant opted to address the second ground of appeal first and then proceeded to address the first and third grounds afterwards. I will therefore address the grounds of appeal in the order argued by the Appellant.

**Ground 2: The Learned Trial Magistrate erred in law and fact when he held that the Defendant/Respondent and her family had been in possession of the suit land uninterrupted since 1960 and were therefore not liable for trespass.**

As concerns this ground Counsel for the Appellant argued that the Respondent had admitted in Paragraphs 7(a) and 7(b) that her father Matiya Kasunamira had engaged with the Appellant’s late husband Kisande and had been given land. Counsel further argued that this was confirmed in the Appellant’s witness statement at Paragraph 6 that she and her late husband had jointly owned and cultivated their customary land till 1960 when the Respondent’s late father had requested her late husband to allow him utilize some of the land for cultivation. The Appellant’s husband had then granted him two acres. Counsel argued that this was evidence that there was relationship between the Appellant’s deceased husband and the Respondent’s late father.

Counsel for the Appellant went on to argue at length that the evidence at the trial showed that the Respondent’s late father was simply a refugee from Congo who had been granted access to the suit land as a licensee. He further argued that that the Learned Trial Magistrate had wrongly considered the Respondent’s pleading in Paragraphs 7(c) and 7(d) that the Respondent’s father had been given the land on 11th July 1968 by area authorities following claims by a third party over the land. He also argued that testimony from DW1 Kabugho Zulien, DW2 Baluku Matsipa and DW3 Bwambale Alberito revealed that there was no documentary of proof of the 1968 decision and that only DW2 testified to having witnessed the meeting.

Counsel for the Appellant went on to contest the circumstances of the 1968 meeting on the basis that even if it had taken place, the conclusions reached at the meeting would have been null and void and non-binding on the Appellant’s late husband as the Respondent’s father as he was not present for the meeting. Counsel argued that based on the evidence heard and considered at the trial there was no way that the Respondent’s father could enter into a new legal relationship over the suit land without involving the Appellant’s husband through whom he was granted access to the suit land to begin with.

Counsel further argued that there was no continuous possession of the suit land as it had been interrupted at various stages by litigation starting in 2008. It was on this basis that Counsel argued that the Trial Magistrate was wrong to have decided that the Respondent and her family had been in uninterrupted possession since 1960.

Counsel for the Respondent argued in response that the Appellant had never disputed the Written Statement of Defence which brought out the 1968 meeting by which the Respondent’s father had been granted the land and that furthermore the Respondent was never cross-examined on that issue and as such the Trial Magistrate was correct to find that the land belonged to the Respondent and her family. Counsel further dwelt on other facts brought out by the Respondent which were not challenged in cross-examination.

Counsel for the Respondent maintained that there were actions taken by the Respondent’s family such as building a homestead and burial of relatives on the suit land starting with her late father in 1990 which all went unchallenged.

Counsel for the Respondent further cited the decision of the High Court in **Odyek Alex and Another v Gena Yokonani and 5 Others – Gulu HCCA No. 0009 of 2017** on which he relied to submit that the suit in the lower court was for recovery of land for which the Limitation Act applies.

Counsel for the Appellant argued in rejoinder that the Respondent’s father entered the land as a licensee and could not therefore enter any form settlement over the land with a third party. To that extent it was speculative of the Trial Magistrate to hold that the Respondent’s father derived title from a third party. Counsel further reiterated that the dispute over the land started in the Local Council Courts through to when it was finally determined.

In considering this ground of appeal, my mind inexorably goes back to the first two issues framed in the lower Court as these two issues arose from preliminary objections raised by the Respondent. These preliminary issues were:

1. Whether the Plaintiff (now Appellant) had the locus standi to present the suit. 2. Whether the suit was time-barred by law.

It is important that these two issues are revisited because they have a significant bearing on the whole outcome of the trial in the lower Court.

As concerns locus standi, from the background above His Worship Nuwagira held that the Appellant had the requisite locus standi because she held the land jointly as a tenant with her late husband and therefore derived a claim on the basis of the doctrine of survivorship. The Learned Trial Magistrate then also held that the Appellant also claimed as a beneficiary to the estate of her late husband. However, I found this holding to be contradictory. This is because the nature of the two claims under which the Learned Trial Magistrate determined the Appellant to derive her locus standi are mutually exclusive and cannot stand together. It is therefore important to determine in which capacity the Plaintiff/Appellant brought her suit before the lower Court.

According to Paragraph (a) of the Facts constituting the Cause of Action in the Plaint, the Plaintiff/Appellant stated,

*“That the suit land is part of the Plaintiff’s estate with her late husband one Kisande …”*

From the statement above it is clear that the nature of the Plaintiff’s claim to the suit land was vague but not absent as to conclude that she did not have *locus standi* and therefore a valid cause of action. In this regard the Trial Magistrate was prudent to allow the matter proceed to trial as proof of the Plaintiff’s claim could only come through evidence.

The Plaintiff/Appellant then went on to state in Paragraph 6 of her witness statement as follows,

*“That I and my late husband Kisande then jointly owned and cultivated our customary chunk of land for a long period until around the year 1960 when the Defendant’s father Matiya Kasunamira came and requested my husband to allow him do cultivation for seasonal crops on part of our customary chunk and which request was granted for only 2 acres at no consideration.”*

The evidence above was rightly discarded by the Trial Magistrate who stated in his judgment at Page 9 in Paragraph 4 that,

*“I find the plaintiff not being truthful in her testimony in this particular regard. Going by her current age of 71, the plaintiff was only about 9 years old in 1960 when the defendant’s father first occupied the land, she could therefore not have cultivated on the land or jointly owned it together with Kisande later on being married at the age of 9 before the land was given out. I take it that this was another attempt to claim joint tenancy so as to be entitled under the doctrine of survivorship that follows from joint tenancy or ownership for that matter. Whatever interest she could have had in the land only accrued after she had married the late Kisande. I also note how she conveniently avoided to indicate the year when she got married to the late Kisande. If indeed she was a joint owner, she would have indicated whether she consented to her husband giving the suit land to the defendant’s father or whether she had objected to the same, or even challenge the illegal stay on the land as a joint owner.”*

I find the analysis of the Trial Magistrate above to be correct in light of the witness testimony in this matter. However, in light of the analysis above, it follows that the Plaintiff could not by her pleadings claim to be a joint tenant. She would not therefore have had the *locus standi* to bring the suit because she had no evidence to support the claim that she was a joint tenant. Section 103 of the Evidence Act in this regard is very clear.

*“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*

Furthermore, it is equally clear that the Plaintiff/Appellant never at any one point in her pleadings pleaded that her claim was being brought in the capacity of beneficiary to her late husband’s estate. The Plaintiff/Appellant was bound by her original pleadings before the lower Court by virtue of Order 6 Rule 7 of the Civil Procedure Rules which prohibits departure from original pleadings. It was therefore not open to the Trial Magistrate to impute that the Plaintiff could claim as a beneficiary when she did not raise it in her pleadings. The reason for this is clear. Without raising it in her pleadings the Defendant was obviously denied the opportunity to challenge the same if they had chosen to do so.

Going by the above, I find that the Trial Magistrate misdirected himself in law and fact when he held that the Plaintiff had the necessary *locus standi* to bring this suit. Neither the pleadings nor the evidence in this matter establish the Plaintiff as a joint tenant or a beneficiary to the estate of her late husband.

The absence of *locus standi* of the Plaintiff in the matter before the lower Court effectively meant that the cause of action could not stand either because in the case of **Tororo Cement Co. Ltd v Frokina International Ltd – Civil Appeal No. 1 of 2001** the Supreme Court held that a Plaint must show that the Plaintiff enjoyed a right which was violated and that the Defendant is liable.

In this case the absence of *locus standi* took away any right upon which the Plaintiff/Appellant could claim a violation. The case could not therefore proceed beyond the point that it became clear that there was no cause of action. Order 7 Rule 1(e) of the Civil Procedure Rules provides in mandatory terms that a Plaint must disclose a cause of action. The fact of the vagueness of the capacity in which the Appellant was claiming before the lower Court cannot rescue the situation here. Once it became clear by evidence that the Appellant’s claim as a joint tenant was not supported by evidence the entire suit was doomed to collapse.

Ground No. 2 therefore fails on the basis that the Respondent could not have been found liable for trespass because the Appellant lacked the *locus standi* to bring the suit and therefore also lacked a cause of action before the lower Court.

**Ground 1: The Learned Trial Magistrate erred in law and fact when he misapplied the law to the facts of the case thereby arriving at a wrong conclusion that the Defendant/Respondent is the rightful owner of the land.**

Counsel for the Appellant basically submitted on this ground to the effect that the Trial Magistrate erred to have concluded that the defendant was the rightful owner of the land as by the pleadings and testimony of the Respondent before the lower Court, she had responded to the suit as a beneficiary to the estate of her late father and to that extent she could not have become an owner of the property contrary to her own pleadings. Counsel further argued that the Respondent could not have acquired better title than her late father who was simply a licensee.

In response to the above, Counsel for the Respondent reiterated their arguments with respect to Ground 2 on the question of the legal ownership of the land. As regards the question of pronouncement of ownership of the land as belonging to the Defendant, Counsel for the Respondent argued that it was simply an error that did not go to the root of the trial as the Magistrate did declare in the final orders that the suit land belongs to the estate of the late Matiya Kasunamira. Counsel further relied on Section 70 of the Evidence Act by which he argued that no decree of court may be reversed or modified for error, defect or irregularity in the proceedings not affecting the merits of the case. Counsel further argued that for such a judgment to be set aside on account of an error it must be demonstrated that the irregularity occasioned a miscarriage of justice.

Counsel for the Appellant reiterated his main arguments for this ground.

In light of the fact that the Appellant lacked a cause of action before the lower court, this ground should automatically fail and the status quo on the suit land remain as it was before the suit in the lower court was filed.

When I revisited the judgment of the Learned Trial Magistrate in this matter I noted that I noted that in resolving the issue of who is the rightful owner of the suit land, the Trial Magistrate stated *inter alia* at Page 8 in Paragraph 2 that,

*“I need to restate here that the defendant derived title to the suit land from her late father being one of the two surviving children … I therefore find that the defendant is the rightful owner of the suit land.”*

The Trial Magistrate then went on to order that:

1. *The Defendant or any other rightful beneficiary to the estate of the late Matiya Kasunamira are the rightful owners of the suit land measuring approximately 2 acres situated at Kikumbi village, Bukangara Parish, Nyakiyumbu Sub-County, Kasese district.* 2. *A permanent injunction restraining the Plaintiff or any person claiming to derive ownership from the late Kisande from interfering with the suit land.* 3. *…*

From the above, I do tend to agree that the Trial Magistrate pronounced himself beyond what was specifically pleaded on the side of the Respondent. In as much as the Defendant never counterclaimed with regard to ownership of the suit land I do find that it was unsafe for the Trial Magistrate to conclude that the suit land belonged to the Respondent or any other person for that matter. It was safer to conclude the matter on the basis of the prayers made in the pleadings especially given that the land in question is untitled and there would be need for evidence to be specifically led with regard to the Respondent’s legal ownership. As things stand the evidence led in this matter was focused on determining whether or not the Appellant’s claim in the lower Court had merit or not moreover in terms only of possession and not legal title.

In Paragraph 4 of the Respondent’s Written Statement of Defence before the lower court she specifically averred and contended that the suit land belongs to her late father Matiya Kasunamira. This therefore meant that she was responding to the suit as a beneficiary to the estate of the late Matiya Kasunamira. Section 3(1) of the Succession Act provides *inter alia* that succession to the immovable property of a person deceased is regulated by the law of Uganda. There was no evidence brought before the lower Court to prove that the law had been applied with regard to devolution and distribution of the estate of the late Matiya Kasunamira. The Trial Magistrate could not therefore make orders granting the Respondent or any other beneficiary ownership without the due process required under the Succession Act being fulfilled.

The process by which beneficiaries to an estate derive legal ownership of any property including land is clearly provided in the Succession Act and any other procedure outside of that law is automatically null and void. In that regard also I find that the imposition of a permanent injunction in the terms spelt out by the lower Court has the effect of potentially hindering any other person who claims through the estate of the late Kisande without granting them a hearing. The injunction would only be valid to the extent of the Plaintiff herself and any other person claiming through her but cannot extend to the other beneficiaries of the estate of the late Kisande as the Court would only be speculating as to the nature of the claim.

I note also that with regard to an injunction on the Plaintiff/Appellant herself it cannot be sustainable in this matter as the entirety of the suit upon which the Trial Magistrate relied to impose the injunction collapsed at the point that it became clear that a cause of action did not exist. In the very unlikely event that the Plaintiff/Appellant has a valid cause of action that is not time-barred, a permanent injunction against her would be such as to prematurely deny her the right to pursue the valid cause of action if any. I therefore find that the Trial Magistrate erred to impose the permanent injunction given the entire circumstances of the case.

For the reasons above, I do hereby uphold Ground 1.

**Ground 3: The Learned Trial Magistrate erred in law and fact when he dismissed the Plaintiff/Appellant’s suit with costs.**

Counsel for the Appellant argued extensively on the basis of the law and the evidence that the suit land remained for all intents and purposes the property of the late Kisande and that the Appellant is entitled to possession of the suit property as his widow. He further argued that the Respondent is a trespasser as her claim arises from a mere licensee and any other claims beyond that was fraudulent.

Counsel for the Respondent argued in response that the question of whether or not the Respondent was a licensee was already traversed and reiterated earlier arguments emphasizing that the suit was for recovery of land and not simply trespass. He insisted that the matter was therefore time-barred by virtue of Section 5 of the Limitation Act. Counsel further argued that there was evidence of adverse possession which created a limitation to actions brought in trespass.

Counsel for the Appellant submitted in rejoinder reiterating the earlier submissions and insisted that the Trial Magistrate was wrong to dismiss the suit.

For the reasons outlined above, I do find that the Trial Magistrate was right to dismiss the suit as by my finding the Appellant lacked *locus standi* in this matter and to that extent there was no valid cause of action in the suit.

Ground No. 3 therefore fails.

**ORDERS:**

1. This Appeal fails in part to the extent that I find that the suit before the lower Court was validly dismissed as the Appellant lacked *locus standi* and therefore a valid cause of action before the lower Court. The Order dismissing the suit in the lower Court is maintained. 2. This Appeal succeeds in part as the orders of the Trial Magistrate vesting ownership of the suit property in the Respondent and other beneficiaries of the estate of the Late Matiya Kasunamira was contrary to the requirements of the Succession Act. 3. The Order of the Trial Magistrate vesting ownership of the suit property in the Respondent and other beneficiaries of the estate of the Late Matiya Kasunamira is accordingly set aside. 4. The Order of the Trial Magistrate imposing a permanent injunction against the Appellant and any other person claiming the suit land through the estate of the late Kisande is hereby set aside. 5. The Appeal is dismissed in part with two-thirds of costs to the Respondent. 6. The Appeal is upheld in part with one-third of costs to the Appellant.

**David S. L. Makumbi**

**JUDGE**

**04/11/24**