Muwonge and 2 Others v Nalubega and 3 Others (HCT-05-CV-CA 27 of 2022) [2025] UGHC 68 (20 February 2025)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA**

# **HCT-05-CV-CA-0027-2022**

5 **(ARISING FROM ISI-36-CV-CS-0098-2013 AT THE CHIEF MAGISTRATES COURT OF ISINGIRO)**

- **1. HAKIM MUWONGE** - **2. RASHID KADEDE** - **3. SIYANA SANSA --------------------------------------------- APPELLANTS**

## **VERSUS**

- **1. SULAINA NALUBEGA------------------------------------ RESPONDENTS** - **2. NABUKEERA MARIAM** - **3. ZULAIKA KABANGI**

15 **4. NASSANSA FATUMA**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

# **JUDGMENT**

### 20 **REPRESENTATION**

The Appellants were represented by Adv. Matovu Suwaya from M/s Matovu Suwaya & Co Advocates, while the Respondents were represented by Adv. Kate Nakamya from M/s Manigaruhanga & Co Advocates.

### 25 **BACKGROUND**

The respondents herein filed a plaint in Isingiro Grade 1 Magistrates court against the appellants herein seeking a declaration that the suit land belongs to them and that the appellants herein are trespassers on the customary land that formerly belonged to their late father, Mr. Matovu Abubakari Kadede located at

30 Kabura, Murema, Kashumba, Bukanga in Isingiro District.

The respondents (plaintiffs) contended that the appellants are their siblings and are all children of the late Mr. Matovu Abubakari Kadede (*see paragraph 4 (a) of the plaint*). They stated that in 2003 their late father distributed his 35 customary land, and gave the land in dispute to the plaintiffs, but in 2005 the appellants (defendants) trespassed onto the land, and prevented the respondents (plaintiffs) access to the land. In the plaint, the respondents (plaintiffs) sought for a declaration that the suit land belongs to them, sought an eviction order against the Appellants, a permanent injunction restraining the Appellants from the suit land, general damages, mesne profits, costs of the suit and any other relief Court deems fit.

- 5 The appellants (defendants) filed a written statement of defence in the Isingiro Grade 1 Magistrates court wherein they denied the allegations in the plaint. They admitted that the respondents (plaintiffs) are their siblings and contended that their late father while he was alive did not give the suit land to the respondents (plaintiffs). The appellants (defendants) prayed that the plaintiff's - 10 case be dismissed with costs.

The issues for determination in the lower court were;

- 1. Whether the Defendants (Appellants) are trespassers on the suit land - 2. What remedies are available.

On 25th April 2022, HW Muhangi S. Gibson, magistrate Grade 1 delivered his judgment wherein he held:

- 1. That the defendants (appellants) have no interest in the suit land, and unlawfully entered the suit land. He then declared them trespassers. - 20 2. That the defendants (appellants) vacate the suit land and He issued a permanent injunction restraining the defendants (appellants) from further trespass - 3. That the plaintiffs (respondents) fruit trees were cut, and the 1 st & 2nd defendants (1st & 2nd appellants) utilised the plaintiff's (respondents) 25 land as such the plaintiffs (respondents) are entitled to general damages, - 4. The plaintiffs (respondents) were granted general damages of UGX 5,000,000/= and costs of the suit.

The appellants being dissatisfied with the judgment and orders of HW Muhangi 30 S. Gibson, lodged an appeal in the High Court.

# **GROUNDS OF APPEAL**

The grounds of appeal contained in the memorandum of appeal are;

- 1. The learned trial Magistrate erred in law and fact to hold that the late Matovu Abubakar Kadede executed a document dated 17th 35 December, 2003 and all defence witnesses who claimed that the same document was forged and never executed lied to Court which was contrary. - 2. The learned trial Magistrate erred in law and fact to hold that the Respondents owned, possessed and planted trees on the suit land when no - 40 evidence was adduced for them to have done so thereby coming to a wrong decision.

- 3. The learned trial Magistrate erred in law and fact to hold that the Appellants have no interest and are trespassers on the suit land which is not true. - 4. The learned trial Magistrate erred in law and fact when he held that the suit land does not form part of the estate of the late Kadede Matovu and that 5 the Appellants claim no interest thereby causing a miscarriage of justice. - 5. The learned trial Magistrate erred in law and fact to hold that the Respondents acquired the suit land by gift *inter vivos* and the Appellants were given other pieces of land contrary to the adduced evidence. - 6. The learned trial Magistrate erred in law and fact when he failed to properly - 10 and legally conduct proceedings at the locus in quo thereby causing a miscarriage of justice. - 7. The learned trial Magistrate erred in law and fact when he totally failed to properly evaluate the evidence as a whole, thereby arriving at a wrong decision and causing a miscarriage of justice. - 15 8. The learned trial Magistrate erred in law and fact when he considered and relied on the evidence of the witness of the Respondents in isolation of the evidence of the Appellants thereby causing a miscarriage of justice.

The Appellants then sought for orders that;

- a) The appeal be allowed. - 20 b) The decision and orders of the trial Magistrate Grade one be set aside. - c) The costs of this appeal and in the lower Court be awarded to the Appellants.

### **SUBMISSIONS**

25 The parties filed submissions, which court has considered.

### **THE DUTY OF THE FIRST APPELLATE COURT**

The duty of the first appellate court was laid out in the case of **FR. NARSENSIO BEGUMISA AND 3 ORS V. ERIC KIBEBAGA SCCA NO 17 of 2002, [2004] UGSC** 30 **18** that;

*"The legal obligation on the first appellate court to reappraise the evidence is founded in the common law, rather than rules of procedure. It is a well settled principle that on a first appeal, the parties are entitled* 35 *to obtain from the appeal court its own decision on issues of fact as well as of law. Although in 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*"*

The above principles will guide this court in the determination of the grounds of appeal.

### **DETERMINATION**

5 The Appellants raised eight grounds of appeal wherein the gist is a contention that the trial Court was wrong in finding that the suit property was distributed to the Respondents by the late Kadede Matovu. I shall thereby resolve grounds 1,2,4,5,6,7 & 8 jointly since they are related or rotate around the same issues.

### 10 **Grounds 1,2,4,5,6,7 & 8**

It is trite law that the party that alleges has duty to prove the same as stipulated in **SECTION 101 – 103 OF THE EVIDENCE ACT CAP 8**, it should also be noted that parties are bound by their pleadings.

15 This case revolves around the principles that govern a gift *inter vivos* .

In principle, it is now accepted that a gift *inter vivos* takes effect when three conditions are fulfilled, they are; (1) the intention to give the gift, (2) the donor must deliver the property, and (3) the donee must accept the gift as was stated

# 20 in **MATOVU AND OTHERS V IGGA AND OTHERS HCT-MC 17 OF 2024 [2024] UGHC 990.**

The Court of Appeal in determining **KAMADI LUGONVU VS SAUDA NANDAWULA & ORS CIVIL APPEAL 135 OF 2014 [2019] UGCA 400 held that;**

25 *"The issue of gift inter vivos required establishing the instrument used to transfer the property"*

The High court in determining **WALUSIMBI JENNIFER & ORS VS BULEZI ALI HCT CIVIL SUIT NO. 291OF 2021,** also held that;

30 *"gifting of titled land can never be treated like gifting a kibanja interest."*

Having considered the two holdings above, the holding of the Court of appeal in **KAMADI LUGONVU VS SAUDA NANDAWULA & ORS [2019] UGCA 400** as well as the holding of the High Court in **WALUSIMBI JENNIFER & ORS VS BULEZI ALI HCT CIVIL SUIT NO. 291OF 2021.** I note that it is imperative that a 35 court determining a matter revolving a gift inter vivos, must consider the nature of land tenure or land ownership rights of the donor over the intended gift under consideration, because the nature of ownership will guide on the instrument that the donor ought to execute for the donee when transferring the gift inter vivos.

A donor that is gifting titled land held under freehold, mailo, or leasehold tenure in Uganda is required to execute a dully signed transfer form as stipulated in the Registration of Titles Act, while a donor that is gifting untitled land held under customary ownership or an occupant as defined in the Land

5 Act is required to execute a dully signed agreement to pass the gift to the donee.

In my opinion, on top of the three set conditions for a gift inter vivos to take effect, it is important to add a fourth condition to bring to the forefront the requirement for the donor to execute the appropriate instrument to transfer 10 the gift subject to the land tenure.

In that regard, I opine that the detailed four conditions for a gift inter vivos to take effect are;

- **(1) The donor must have an intention to give the gift,** - **(2) The donor must transfer the gift by executing a dully signed instrument** 15 **in line with the gifts land tenure or nature of land ownership.** - **(3) The donor must deliver the property to the donee, and** - **(4) The donee must accept the gift given by the donor.**

I will now apply the conditions above to the facts in this case on appeal.

- 20 The evidence of PW1 Nassansa Fatuma on record , is that their father Kadede Matovu gave them land in 2003. She stated that the distribution by the father included creating boundaries and said the land up the hill belonged to the girls and himself (father). This evidence is corroborated by Pw2 Nabukera Mariam testimony that their father gave them the suit land. She insisted that she was - 25 present when their father gave them the land. She also added that they planted fruits on the suit land that was given to them. The court exhibited the distribution document dated 17/12/2003, it was marked as PE1 and put on court record with its English translation as an exhibit. - 30 Dw2 Hakim Muwonge challenged the testimony of the plaintiffs (respondents) witnesses. He stated that he knew his father's signature and as such his father did not sign the distribution document exhibited as PE1. He contended that their father called for a meeting where he denied the distribution document in PE1. This evidence was supported by the evidence of Dw1 Matovu Rashid who - 35 also contested PE1 and stated that their father gave the suit land to him and Hakim in 2012.

I have analyzed the above evidence of both the appellants (defendants) and respondents (plaintiffs). I have also analyzed the evidence on court record, I 40 note that;

- 1. The appellants have claimed that their father, the late Kadede Matovu gave them land in 2012, but during cross examination Dw1 Matovu Rashid testified that *"I have no document showing my father gave me the suit land*" this is an admission that the appellants do not have any 5 instrument of their father giving them the suit land in 2012 as they claimed. - 2. The appellants (defendants) put on court record a document that was exhibited as DE1 (*see page 72 & 73 of the appellant's trial bundle*). The document that was exhibited as DE1 is dated 26-01-2012, signed by the 10 late kadede Matovu and is titled "**RE REVOKING / NOT IN AGREEMENT" WITH ANY DOCUMENT THAT I DISTRIBUTED MY PROPERTIES AND MY** - It is my view that by adding in the title of DE1 the word "revoking" the late 15 Matovu Kadede was attempting to revoke an earlier grant of the suit the land. The only document that is said to have been a grant to the respondents was exhibited as PE1 (*see page 79 of the appellant's trial bundle*). DE1 signed in 2012 therefore proves that the late Matovu Kadede gifted the suit land under PE1 signed in 2005, which he now attempted to revoke. - 20

**LAND**"".

I therefore find that the evidence in PE1 shows that the late Kadede Matovu gifted the suit land that stretches from Kadede's home up zaidi's land and up to the hill (*see line 6 & 7 of the last paragraph of PE1 at page 79 of the appellant's trial bundle*).

HW Muhangi Gibson at the 2nd line of page 4 of his judgment found that the evidence proves that the distribution document (Exhibit PE1) was executed. Having evaluated the evidence, I agree with His Worship's finding in the trial court's judgement.

I note that the respondent's witnesses such as PW1 Nassansa Fatuma testified that she led the other girls in planting fruits that included avocados, oranges on the suit land that was given to them. The evidence of fruit trees on the land was confirmed by Court during locus, when the court observed that on the land

- 35 there was an avocado tree and lemon trees claimed to have been planted by the plaintiffs (respondents). This record made by the court during locus shows that locus was done to cover gaps from the situation on the ground. The evidence of the trees seen by court during locus also shows that the respondent's after being gifted the land that was given to them in a written - 40 document exhibited as PE1, they accepted the gift and planted fruit trees on the part of the land that was gifted to them. In essence, the gifting became

effective and as such the land gifted to the respondents ceased to be owned by the late Matovu Kadede. It follows therefore that the suit land is not part of the estate of the late Matovu Kadede.

#### 5 **Ground 3**

# **The learned trial Magistrate erred in law and fact to hold that the Appellants have no interest and are trespassers on the suit land which is not true.**

The question that we have to consider now is whether the donor can revoke a 10 gift as the appellants seem to impute when referring to DEX1. In my view once the four conditions relating to grant of gifts inter vivos are met the gift inter vivos changes hands to the donee and the donor loses the right to recall it. In this case the donor gave out a gift of untitled land, by executing a document that was exhibited as PE1, the donee's accepted the gift and started using it by 15 planting fruits on it. It means that the respondents are the owners of the suit land.

The Supreme Court defined trespass in the case of **JUSTINE E. M. N LUTAAYA VS STIRLING CIVIL ENGINEERING COMPANY LTD SCCA No. 11 of 2002,** holding 20 that

*"Trespass to land occurs when a person makes an unauthorised 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* 25 *person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass. Thus, the owner of an unencumbered land has such capacity to sue, but a landowner who grants a lease of his land, does not have the capacity to sue, because he* 30 *parts with possession of the land. During the subsistence of the lease, it is the lessee in possession, who has the capacity to sue in respect of trespass to that land. An exception is that where the trespass results in damage to the reversionary interest, the landowner would have the capacity to sue in respect of that damage.*

The appellant's witnesses in the lower court Dw1 Matovu Rashid and Dw2 Hakim Muwonge all agree that they entered the suit land in 2012 after their father allegedly gave them the land, but unlike the appellants who had a document to prove they were given land, the respondent's did not produce any 40 document to prove they were given the suit land. Dw1 Matovu Rashid testified that *"I have no document showing my father gave me the suit land*". This means that they failed to prove a cardinal condition of gift inter vivos that an instrument granting them the land in 2012 was executed.

PW1 Fatuma Nassansa and Pw2 Nabukera all testified that upon being given the land they planted fruit trees that included Avocadoes, Endimu & Mangoes. $\mathsf{S}$ There is no evidence that their father who gave them the land stopped them using the same. The fruit trees only got destroyed by the respondents in 2012. I therefore find that prior to 2012, the land on which the respondents had planted fruit trees belonged to them, and no one, not even their father had power to give it to the appellants as they also allege.

Having found that the land belonged to the respondents, it means that the appellants had no justified reason to enter onto the land that was gifted to the respondents and as such trespassed onto the respondent's land.

The evidence on court record shows that the appellants destroyed the respondent's fruits planted on the land. PW2 Nabukera testified in the lower court that they planted Avocadoes, Endimu & Mangoes, which she testified were about 10 months old and were cut by the appellants (see page 8 of the record of proceedings). This shows that the appellants destroyed the fruits that

- 20 were planted by the respondents on the land that was gifted to them. This amounts to taking the law into their own hands. - HW Muhangi Gibson at page 5 of his judgment stated that the suit land belongs to the plaintiffs (respondents) and also that the 1<sup>st</sup> and 2<sup>nd</sup> defendant utilized $25$ the land growing bananas to the disadvantage of the plaintiff, then granted a sum of UGX 5,000,000 as general damages to the plaintiffs (respondent's). Having evaluated the evidence, I agree with His Worship's findings and orders in the trial court's judgement.

In conclusion, the appellant's grounds of appeal fail, and I order that the appeal is dismissed with costs.

under

NSHIMYE ALLAN PAUL M. **JUDGE** 20-02-2025

35