Musoke v Kavuma Nakate (Civil Appeal 88 of 2017) [2024] UGHCLD 224 (20 September 2024)

## 5 **THE REPUBLC OF UGANDA IN THE HIGH COURT OF KAMPALA AT KAMPALA (LAND DIVISION) CIVIL APPEAL NO. 88 OF 2017 (ARISING FROM CHIEF MAGISTRATE'S COURT OF MAKINDYE AT** 10 **MAKINDYE) VIDE CIVIL SUIT NO. 170 OF 2011 MUSOKE ELINA AIDAH :::::::::::::::::::::::::::::::::::::::::::::: APPELLANT (Administratrix of the Estate of the Late Musoke Dick)**

#### 15 **VERSUS**

**KAVUMA NAKATE REBECCA :::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA**

#### **JUDGMENT**

#### 20 **Introduction**

This appeal was filed by Musoke Dick Kitente *(hereinafter referred to as "the appellant")* challenging the Judgment of His Worship Gakyaro Mpirwe Allan, Learned Magistrate Grade One of Chief Magistrate Court of Makindye (as he then was) which was delivered on 1 st August, 2017. The Trial Court decided the case in

25 favor of Kavuma Nakate Rebecca and Namata Eva *(hereinafter referred to as "the respondent").*

The Trial Magistrate ordered that; that the plaintiff (respondent) is the lawful owner of the suit kibanja together with a 2 roomed house annexed to the big house of the defendant and the suit land of the plaintiff measuring approximately 100ftx30ftx55ft

30 by 13.7ft from the house to the road, issued a permanent injunction against the defendant (appellant) and a demolition order.

#### 5 **Background**

The respondent instituted Civil Suit No. 170 of 2011 against the appellant at the Chief Magistrate Court of Makindye via an amended plaint (filed in Makindye Court on 2nd April 2014) seeking for a permanent injunction, general damages, a declaration that the suit land and the house forms part of the estate of the late 10 Banalekaki and costs of the suit. In the facts constituting the cause of action, the plaintiffs averred that they were beneficiaries to the estate of the late Banalekaki Erizimus being the biological daughters to the deceased.

The plaintiff (respondent) also contended that the late Banalekaki Erizimus constructed a house in Kibiri B Makindye Ssebugabo in the 1980s in which the 15 deceased lived till 2004 when he passed away. The plaintiff averred that upon the death of the Late Banalekaki, the defendant allegedly trespassed on the suit kibanja and claimed ownership of the same and the defendant has since threatened to evict the plaintiffs from the suit premises.

In reply to the plaintiff's averments, the defendant filed a written statement of 20 defence wherein it was contended that the defendant is a lawful owner of the suit kibanja and that the plaintiff has no interest therein. The defendant further averred that he bought the kibanja from Lameck Kiwanuka on the 5/2/1967and Neriko Sengooba on 15/11/68. The issues for determination by the Trial Court included the following;

- 25 *1. Whether the plaintiffs have interest in the suit kibanja.* - *2. Whether the suit kibanja belongs to the defendant.* - *3. Remedies available to the parties.*

Upon evaluation and determination of the evidence on record, in his Judgment dated 17th July 2017, the Trial Magistrate Grade One held in favor of the plaintiff. The

**2 |** P a g e

- 5 appellant being dissatisfied with the Trial Magistrate's Judgment, filed a memorandum of appeal and advanced the following grounds; - *a. The Learned Trial Magistrate erred in law and fact when he declared that the respondents were lawful owners of the suit kibanja measuring approximately 100ft by 30ft by 55ft by 13.7ft.* - 10 *b. The Learned Trial Magistrate erred in law when he disposed the appellant of the suit kibanja and issued a permanent injunction against him, his agents and successors in title.* - *c. The Learned Trial Magistrate erred in law when he failed to evaluate the evidence on court record thereby arriving at an erroneous decision.*

### 15 **Representation and preliminaries**

The appellant's legal representative was represented by Counsel Kamusiime Bright of **M/s Abbas Advocates** while the respondent was unrepresented.

It should be noted that on 19th June 2024, this Court ordered that the appeal be heard ex parte under Order 43 rule 14 (2) of the Civil Procedure Rules following the fact

20 that the respondent had been served personally by the court annexed process server Mr. Kojjo Noah on 7th June 2024 and informed about the proceedings of court, however the respondent never made an appearance and neither was any sufficient reason given for the absence.

Secondly, it should also be noted that vide the pendency of this appeal, the appellant

25 passed away and he was replaced by his wife Musoke Elina Aidah as his legal representative vide Miscellaneous Application No. 833 of 2021.


20th September 2024

#### **Duty of the 1** 5 **st Appellant Court**

Being a first appeal, it is wise to address the role of the 1st appellant Court seeing as this is a first appeal from a decision of a Magistrate Grade One to the High Court. The duty of this Court as a first Appellate Court is to re-evaluate the evidence adduced at Trial and subject it to fresh scrutiny, while weighing the conflicting

- 10 evidence and drawing its own conclusions and inferences from it. However, the first appellate Court has to bear in mind that it has neither seen nor heard the witnesses and should therefore make due allowance in that respect. **See** *Fredrick Zaabwe versus Orient Bank & 5 ors S. C. C. A No. 4 of 2006 and Banco Arabe Espanol versus Bank of Uganda S. C. C. A No. 8 of 1998.* - 15 Similarly, in the case of **Selle and Anor versus Associated Motor Boat Limited and ors (1968) EA 123 at page 123,** where Justice Clement De Lestang stated that the role of the first appellant Court is as follows;

*"An appeal …. is by way a retrial … the Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it* 20 *should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in respect."*

This Court has the duty to re-evaluate the evidence before it arrives at its own conclusion. I will bear these principles in mind as I resolve the grounds of appeal in this case.

25 As directed by this Court, Counsel for the appellant filed written submissions and I shall put these submissions into consideration before reaching my decision.

**Consideration of the Appeal** 20th September 2024


- 5 Having perused the record of the appeal, it is my observation that the grounds of the appeal are all related since they seek to determine which of the parties bears a lawful interest on the suit land. The resolution of ground one shall automatically resolve the other two grounds. Therefore, the same shall be resolved concurrently. - **Ground One**: *That the Learned Trial Magistrate erred in law and fact when* 10 *he declared that the respondents were lawful owners of the suit kibanja measuring approximately 100ft by 30ft by 55ft by 13.7ft.* - **Ground two:** *That the Learned Trial Magistrate erred in law when he dispossessed the appellant of the suit kibanja and issued a* 15 *permanent injunction against him, his agents and successors in title.* - **Ground three:** *That the Learned Trial Magistrate erred in law when he failed to evaluate the evidence on court record thereby arriving at an erroneous decision.* - 20 It is Counsel for the appellant's submission that the Trial Magistrate misunderstood and misapplied the provisions of **Section 29 of the Land Act**, **(Cap 236 Revised Laws of Uganda)** when he concluded that the respondent was a lawful occupant of the suit land and yet the suit land is not under the operation of the Registration of Titles Act. Counsel went ahead to submit that the Late Musoke Dick's evidence of - 25 paying Busulu to Buganda Land Board marked as DE6 was unchallenged by the respondent in the trial court. In addition, Mr. Kamusiime argued that it is trite that for a person to qualify as a lawful occupant, he or she must be in occupation of land registered under the Registration of Titles Act, which was not the case in the instant matter.


5 Furthermore, counsel for appellant submitted that the Trial Magistrate noted at page 6 of his judgment that the respondent never produced any sale agreement and as such the burden to prove that there was indeed a purchase of the suit land by the respondent's father from the appellant's late husband was undischarged.

#### *Resolution*

- 10 The grounds raised in the memorandum of appeal rotate around the true ownership of the suit land. Therefore, I shall adopt the issues raised in the trial court and use the same to resolve the grounds of the appeal in the instant appeal and these included; - *1. Whether the plaintiff (respondent in this appeal) has an interest in the suit kibanja.* - 15 *2. Whether the suit kibanja belongs to the defendant.*

It was the finding of the Trial Magistrate that the plaintiff (in this appeal the respondent) was the lawful occupant of the suit land as provided for under **Section 29 of the Land Act** which describes the different types of tenants by occupancy.

According to the record of court, Pw1 who was the plaintiff testified that her late 20 father Banalekaki Erimus bought the suit land from the defendant (appellant's late husband Musoke Dick) in the 1970s when she was twelve years. During cross examination Pw1 further reiterated the fact that her late father had acquired the suit kibanja by way of purchase from the defendant. When asked about proof of documentation, Pw1 testified that the documentation for the sale transaction was in 25 the custody of Musoke Dick who was the defendant in the lower court.

Pw2 (Yowana Batista Mayanja) testified that he was tasked by the late Banalekaki to make bricks for him because his friend had given him a portion of land where he was to construct. Pw2 went ahead to testify that he made the bricks and the same were taken to Musoke Dick's kibanja. Pw2 also testified that he did not inspect the


20th September 2024

5 room that was built and neither did he know how the late Banalekaki acquired the land.

Pw4 (Kajoba Hamza) testified that he witnessed the building of the house. He further testified that he participated in the ferrying of the bricks from Mr. Semastin Kabunga's place. The witness also stated that Banalekaki used to pay the workers

- 10 for the work done on the building site. He testified that Musoke Dick sold his kibanja to Banalekaki and there were even boundary trees on the plot. During cross examination Pw4 testified that he did not remember the amount that he was paid for the work done. He also confirmed that he was not present when the defendant (Musoke Dick) was selling the land to Banalekaki. - 15 The Trial Magistrate relied on oral evidence of Pw5 (Kabonesa Philip) to confirm the fact that the plaintiff's late father had purchased the suit land. According to the record of appeal, Pw5 testified and I quote;

"*The plaintiff had a bar in Kireka and the owner of the building told him to leave. He (Banalekaki) came and found me at Kibiri at the house* 20 *of the defendant and there was a bar and a school. When he came, it was Dick the defendant, Kabugo and me. On that day he told us that we get him a place, he wanted to build a bar. Dick told him he got a place and Banalekaki had 100,000 in the envelope, 70,000 in paper and the coins were 30,000. It was between the late 1970s and beginning of* 25 *1980, it was Friday and afterwards on Monday, Banalekaki came and told me that Dick had refused to sell to him because the plot was for Catholics." (*Emphasis on the highlighted part)

Having considered the evidence adduced by the plaintiff's witnesses, it is my observation that the plaintiff never adduced any primary evidence to prove

30 that her Late Father Banalekaki purchased the suit land.

In the Trial Court Judgment, the trial Magistrate greatly relied on the evidence of Pw5, however, having perused the record of appeal, particularly the


20th September 2024

**7 |** P a g e 20th September 2024 5 plaintiff's evidence, no cogent evidence was adduced to prove that the Late Banalekaki paid the Late Musoke Dick the Uganda Shillings 100,000. If anything, this testimony of Pw5 proves that Musoke never sold the suit land to the late Banalekaki since he testified that Banalekaki told him that Musoke had refused to sell the suit land to him because the same belonged to the 10 Catholics. The plaintiff/ respondent neither produced a sale agreement nor a receipt for proof of payment of the said sum of Uganda Shillings 100,000. None of plaintiff witnesses could confirm witnessing the said sale, which creates doubt in the plaintiff/ respondent's evidence.

Secondly, Pw5 first testified that Musoke Dick sold the suit kibanja to 15 Banalekaki and subsequently, during cross examination, the witness testified that the late Musoke Dick had given the Late Banalekaki the suit land. At this point, I wonder whether the said transaction was a donation or sale. Either way, the plaintiff did not adduce any evidence substantial to prove either transaction.

20 In addition, Pw4 referred to the existence of boundary trees on the suit land. I have had the opportunity to study the locus in quo sketch map drawn by the Trial Magistrate, and there is no mention of any boundary trees but rather a semidetached building facing the main road.

The plaintiff neither produced primary nor secondary evidence to prove her 25 claim to suit land. Whereas, it was an undisputed fact that the plaintiff/ respondent was a biological daughter to the late Banalekaki and that the late Banalekaki lived on the suit kibanja with Musoke Dick till the former's demise in 2004, the plaintiff never adduced any evidence to prove that the plaintiff's late father had actually purchased the suit land. 20th September 2024


- 20th September 2024 - 5 As earlier cited the burden of proof in civil cases rest on the party who alleges a fact and the same must be discharged on a balance of probabilities as per **Section 101 of the Evidence Act (Cap 8 Revised Laws of Uganda, 2023)**. In this case without any cogent proof of purchase or even donation, I am not convinced that the plaintiff/ respondent's late father had any legal or even 10 equitable interest in the suit land.

The Trial Magistrate held that the plaintiff was a lawful occupant on the suit land. **Section 29 of the Land Act** defines the parameters of what qualifies one to be a *lawful occupant* as follows;

- 1) "Lawful occupant" means— - 15 a. a person occupying land by virtue of the repealed - i. Busuulu and Envujjo Law of 1928; - ii. Toro Landlord and Tenant Law of 1937; - iii. Ankole Landlord and Tenant Law of 1937; - b. a person who entered the land with the consent of the registered owner, 20 and includes a purchaser; or - c. a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

It is my understanding of this provision that, for there to be a tenant by occupancy 25 whether a lawful or bonafide occupant, there must be registered proprietor. This means that the land in question must be subject to the operation of the Registration of Titles Act. This does not seem to be the case in this instant matter.

According to paragraph 3 of the Late Musoke Dick Kintene's witness statement, it was deposed that the appellant's late husband purchased part of the suit land as a

kibanja from Lameka Kiwanuka on 5th 30 February 1967 at a consideration of Uanda

5 Shillings 4000 (four thousand shillings). In addition, according to paragraph 5 of the same statement, the Late Musoke Dick went ahead to testify that he bought another smaller kibanja from the late Neliko Sengaba measuring 17ft by 100ft on 15th November 1968. According to the record of the appeal, these facts were never contested by the plaintiff. Therefore, I am convinced that the suit land was 10 unregistered land or a kibanja.

**Furthermore, Section 31(3) of the Land Act** provides that a tenant by occupancy shall pay to the registered owner an annual nominal ground rent as shall, with the approval of the Minister, be determined by the Board. Therefore, for one to qualify as a lawful occupant, they must prove that they have been paying rent to the 15 registered proprietor or that they were a customary tenants whose interests were not compensated by the registered owner. In this case the plaintiff (respondent)did not bring evidence to establish any of the above circumstances. This further seals the fact that the plaintiff's late father and the plaintiff do not qualify to be lawful occupants on the suit land since the same is unregistered land and the respondent 20 claimed that her late father bought another kibanja holder.

During cross examination, Dw1 (Musoke Dick) testified that the late Banalekaki was his very good friend, whom he allowed to use his premises to run his bar business after he lost his job with Uganda Railways. Furthermore, during cross examination, Dw1 also testified that Banalekaki stayed on the suit land as a friend to Musoke 25 however, he never gifted him his kibanja. Furthermore, the witness testified that there was no subsisting tenancy agreement between Banalekaki and himself for the room where the former was conducting his bar business.


20th September 2024

5 Upon close examination of the evidence on record, I am convinced that the plaintiff's late father Banalekaki was not a lawful occupant on the suit land but rather was a licensee on Musoke's kibanja.

In the case of **Inwards & ors versus Baker [1965] ALL ER 446,** a license was defined as a personal permission for someone to occupy land. The court further held

- 10 that, a license does not confer a legal interest (control) over the land on the licensee. Without the license, the occupier would be a trespasser. A license arises where there is currency of the following; a) *there is no intention to enter into a legal relationship, b) there is no right to exclusive occupation and c) the arrangement is a service occupancy that is, limited to use.* - 15 I am persuaded by Hon. Justice Vicent Wagona's findings in the case of **Sunday Christopher Kyakana & ors versus Florence Nyakana Kabahenda B & anor HCCS No. 24 of 2017,** where he held as follows;

*Licenses over land are in three broad categories, that is; (a) bare license, (b) contractual license and (c) licenses coupled with a grant of* 20 *interest. A bare license is simply the giving of personal permission by the landowner for the licensee (the person with the benefit of the license) to enter and remain on the land. (emphasis on the highlighted part). The licensee is not required to provide consideration for accessing the land. So long as the license runs, it acts as a defence for* 25 *the licensee against any charge of trespass on condition the licensee has complied with the terms and conditions of the license. (See Tomlinson v Congleton BC [2003] 3 WLR 275 per Lord Hutton and Lord Hobhouse of Woodborough).*

30 *A contractual license is similar to a bare license insofar as it grants the licensee permission to access the land. The difference is that the contractual license includes the giving of consideration by the licensee for the benefit of the license. (See Horrocks v Forray [1976] 1 WLR 230 per Megaw LJ). The underlying contract may be either express or* <sup>35</sup> *implied.* 20th September 2024

*A license coupled with a grant of interest connotes permission given by an owner of land to another with limited rights or specific user rights. This type of license confers upon the licensee the right to go on another person's land for the sole purpose of removing something from the land* 10 *(such as timber, minerals, and crops). This license therefore includes the rights granted under profits, à prendre to access an interest, coupled with the right to enter land in order to exploit the interest. The license cannot be revoked during the exercise of the license (Wood v Lead bitter (1845); and Hounslow LBC v Twickenham Garden* 15 *Developments Ltd [1971] Ch 233). The license is beneficial to the holder of the license in two ways: first, it is binding on both the licensor and their successors in title, that is, it is irrevocable. Second, it is capable of being assigned by the licensee to a third party. (See Supreme Court of India, Civil Appeal Nos. 6546-6552 Of 2003,* 20 *Pradeep Oil Corporation Vs Municipal Corporation of Delhi and Anor by Dr. Mukundakam Sharma, J.).*

The evidence on record clearly shows that Banalekaki was a bare licensee on Musoke Dick's kibanja, under the condition that he was merely allowed to use one 25 room to operate his bar. Furthermore, the plaintiff's witnesses also confirmed that the late Banalekaki's alleged room was attached to Musoke Dick's house and the same was confirmed from the locus in quo sketch map. Dw1 testified the late Banalekaki was using his premises to run a bar business and that the former and latter used to use the same latrine. This piece of evidence was not contested by the 30 plaintiff and her witnesses. According to the Trial Magistrate's locus in quo sketch, it is evident that there was only one toilet on the suit land and that the same has semidetached building facing the Busabala-Kampala road.

As earlier stated, the plaintiff/ respondent never produced any documentation to prove the existence of sale agreement between Banalekaki and Musoke Dick and 35 neither did she produce any receipts of proof of payment of ground rent. However, what is clear is that the Late Musoke Dick allowed his friend to occupy his premises 20th September 2024

5 so that he could run a bar business which confirms the fact that Banalekaki was a bare licensee and as such he never qualified to be a lawful occupant.

According to **Sunday Christopher Kyakana & ors versus Florence Nyakana Kabahenda B & anor (supra),** reference is made to Justice Wagona's holding that a license only operates during the life time of the licensee and as such the same 10 cannot be passed on to the successors in tile since this is pegged on the firm principle that a license does not confer any proprietary interests in the land.

Therefore, the suit premises did not form part of the Late Banalekaki's Estate and as such the plaintiff/ respondent did not have any interest in the suit land. Therefore, I find that the suit land belongs to the estate of the late Musoke Dick and a such these 15 grounds are answered in the affirmative.

In conclusion, this appeal succeeds and I order as follows;

- *1. The appeal is allowed* - *2. An eviction order is hereby issued against the respondent to vacate the suit premises comprised in Kibiri B Makindye Ssebugabo and hand over* 20 *possession to the appellant within 90 (ninety) days from the date of this* - *3. Costs of the appeal are hereby awarded to the appellant.*

## **I SO ORDER**

*judgment.*

25 This Judgment was delivered at High Court Land Division via ECCMIS this 20th day of September 2024.


20th September 2024

## 5

## **Immaculate Busingye Byaruhanga**

**Judge**

20th September 2024

10