Namatovu v Kyakuwa (Civil Appeal No. 132 of 2019) [2021] UGHCLD 176 (9 November 2021)

# THE REPUBLIC OF UGANDA IN HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION CIVIL APPEAL NO: 132 OF 2019

NAMATOVU DOROTHY:::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS KYAKUWA MARGARET:::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

# BEFORE: HON. MR JUSTICE HENRY I. KAWESA

# JUDGEMENT

This appeal was brought by the Appellant against the judgment and orders of Her Worship Awidi Susan, a Grade One Magistrate sitting at the Chief Magistrates Court of Luwero at Luwero.

The brief background of the appeal is: the Appellant sued the Defendant alleging;

- i) trespass to land and; - ii) claimed special, - iii) general and nominal damages, among others

She alleged to have bought a Kibanja at Kasana Luwero Town Council from a one Nalubega Justine on the 15th May, of 2007. That the said Kibanja had a distinct boundary mark which separated its end from the Respondents, and that of a one Sebina. Further, that she enjoyed quite possession of her Kibanja for about 8 years until the 4th of April,

2015, when the Respondent trespassed on it by removing it's boundary marks and destroying her crops.

The Respondent denied trespassing on the Appellant's land in her defence; and set up a counterclaim against the Appellant, claiming that it is instead the latter who trespassed on her land. It is upon that that she sought a declaration that the disputed land belongs to her and that the Appellant is a trespasser thereon, punitive and general damages, and costs.

At scheduling, the parties agreed on three (3) issues for determination of Court, that is:

- 1. Who owns the suit land? - 2. Which of the parties is a trespasser on the suit land? - 3. What remedies are available to the parties?

At trial, the Appellant called three (3) witnesses that is: Namatovu Dorothy (PW1), Serugo Joseph (PW2), and Nabaale Aisha (PE3); and the Respondent called four (4) witnesses, that is: Kyakuwa Margaret (DW1), Nalubega Justine (DW2), Senyonga Moses (DW3), and Bagamba David (4). The trial Magistrate tried the matter and thereafter visited *locus in quo*. In it's finding, she found all the above issues in favour of the Respondent hence this appeal.

The grounds of the appeal are:

1. That the trial Magistrate erred in law and fact when she entered judgment for the Respondent whereas the Respondent had no cause of action.

- 2. That the learned trial Magistrate erred in law and fact in deciding that the Appellant was a trespasser on her property thus occasioning a grave miscarriage of justice. - 3. That the trial Magistrate erred in law and fact when she only evaluated the evidence of ownership of property of the Respondent and failed to totally consider the evidence of the Appellant as the owner of the property. - 4. That the trial Magistrate erred in law and fact when she omitted to properly analyse the testimonies of the Appellant's witnesses, thus occasioning a miscarriage of justice.

Court gave the parties schedules to file written submissions by the Appellant herself. These, however, filed outside the time lines given by Court and were not properly received by Court as they lack a stamp. For these reasons, Court shall disregard the said submissions, and consider only those by her Counsel which are properly on record.

Counsel for the Appellant validly submitted that this Court has a duty to review the record on the lower Court and come up with it's own decision bearing in mind that it did not have the opportunity to observe the witnesses' demeanor. He ably cited *Kifamunte Henry versus Uganda S. C. C. A No: 10 of 1997* in support of the aforesaid established proposition.

I have read and appreciated the record and submissions of Counsel. Upon this, I am of the considered view that the grounds raised in this appeal are interrelated. None of the parties denies interfering with the other's possession of the disputed land? As such, I shall determine all the grounds concurrently but bearing this question in mind. This indeed necessitates a review and evaluation of the entire record.

I note that both parties bought their respective pieces of Bibanja's from both parties. PEXH1 shows that the Appellant's Kibanja is 50feet in width and down wards by 89 feet on the road side by 70 feet in length. The other side of her Kibanja is not captured in the agreement. For the Respondent, DEX3 shows that her Kibanja measures 140 feet in length by 100 feet in width. The other two sides of her land are not captured in the agreement, and she (DW1) testified nothing about them.

The unstated dimensions of both parties' Bibanjas pose the first challenge this Court must trek. For unregistered land, parties to sale agreements should be encouraged to capture the physical dimensions of their land with an illustrative picture. This would pragmatically minimize boundary disputes, and ease and expedite determining any. The vendor to the parties in this case is the same. Despite her intervention to mediate, her attempts proved futile. At trial, she even gave her word against the one of them. This however, would been priceless had it been supported by illustrative pictures in each parties' sale agreement. I leave that at that.

About the dimension of the Appellant's Kibanja, PW1 testified, during cross –examination, that there is a road facing Sekonde Wilson on the side with 89 feet. That the side with 5o feet is where DW2 stayed, and the side without issues has Yiga Fred as a neigbour; and the other has Sebina as a neighbor.

On the other hand, DW1 also testified that DW2 was her neigbour at the side where the 50 feet PW1 testified about is. Both parties agree that this is the side with a dispute between them. DW2 gave evidence unsupportive of the Appellant's claim, and supportive of the Respondent's claim. She testified that the Respondent was neighbored by a plot she sold to the Appellant. That there was there a small piece of land she left in between them so that their plots do not touch each other so that they can access the backside of their plots. She testified that the Appellant has since built a toilet wall in his small piece of land.

Further, that there was also a portion of land of hers she never sold, and he never sold, which she called "a no man's land". Her evidence suggested that the "no man's land" was immediately connected to small piece of land separating both parties. This is bolstered by the fact a dispute. Her testimony was that the Appellant crossed the limits of her boundary into the Respondent's Kibanja.

The first impression from DW2's evidence (that the Appellant built a toilet wall in portion of land which separated both parties) is that the Appellant is claiming beyond her toilet wall, and therefore, the said small portion.

I have looked at a sketch map taken by Court at *locus in quo*, LEX1, of the disputed area and the dimensions of each party Kibanja. That said it was challenging, at first, to reconcile it with the testimonies of PW1, DW1 and DW2, include clarifications by the witnesses of their respective neighborhoods at the time the dispute arose.

LEXH1 appears to capture only the status quo as at when the Court visited. On this note, DID2, a sketch map by the Respondent, appears to be more accurate as far as the testimonies of PW1, DW1 and DW2 are concerned, as it captures the parties' neighborhood, the piece separating them, and the no man's land. It being an identification document, it lacks evidential value and is hereby discarded.

Notwithstanding the shortfall in LEXH1, it tries to show the physical dimensions of both parties Bibanja's and the dispute area, which is triangular in shape. This, I believe, provides some clarity to the testimonies of PW1, DW1, and DW2, and is thus sufficient to determine the dispute at hand. As such, I find that the defects in LEXH1 were not abortive of the purpose of visiting locus, and Court shall consider LEXH1 in determining the dispute.

According to the evidence, the Appellant Kibanja is neither rectangular nor squared in shape, something she admitted to this in her testimony. LEXH1, shows that opposite the unmeasured side of the this Kibanja is the side of 70 feet; and the side of 89 feet is opposite the side 5o feet. The latter sides are the most important ones, especially since the side with 5o feet is the one with the disputed land. Those two sides ought to be mathematically

disproportionate. However, LEXH1 shows contrary as both sides appear to be proportionate! In effect, this makes the Appellant Kibanja almost, if not, rectangular, something which is mathematically erroneous. What explains this? DW2 undisputed testified that there was a small piece of land which separated both parties at the with dispute land; and both parties admitted that Dw2 was their neigbour residing at what she called "no man's land".

It means that if two Bibanjas are separated by a small piece of land and DW2 is a neighbor to both Bibanjas, then DW2's residence is immediately after that small road either at the Appellant or Respondent's side, and one of the Bibanja's is slightly longer than the other (for otherwise DW2's neighborhood cannot subsist). This, however, is not as the observations at locus in quo revealed. LEXH1 shows that both parties are immediate neighbours of each other and DW'S neighborhood is extinct.

Accordingly, if the Appellant's claim over the disputed land is upheld, it would not only give her Kibanja a rectangular shape, but also be inconsistent with the undisputed fact of the DW2 being immediate neighbor to both parties, whose Bibanjas were separated by a small piece of land. These observations render highly improbable the Appellant's claim of ownership of the disputed land. DW2'S evidence that the disputed land forms part of the Respondent's Kibanja further supports this.

The Appellant's Counsel cited Section 91, 92, and 94 of the Evidence Act; and submitted that the Trial Magistrate's finding was based on oral evidence hence erroneously contradicting the contents of the written agreements of both parties regarding the size of their respective Bibanjas. He also argued that the Trial Magistrate drew a wrong sketch, LEXH1, which was relied on to give out 28 feet by 27 feet to the Respondent to the detriment of the Appellant.

The judgment shows that the Trial Magistrate largely based on DW'S evidence in finding that the disputed land belonged to the Respondent. This is, however, nothing in the judgment to indicate that the Appellant's Kibanja was lessened than was stated in her sale agreement. In fact, DW2, whose evidence was relied upon, never testified on anything suggesting that either party's Kibanja was less or largely than anything suggesting that either party's Kibanja was less or larger than what is in their respective agreements. Her evidence was largely that the Appellant encroached upon the Respondent's land.

On a further note, Guideline 3(e) of Practice Direction No.1 of 2007, required the trial Magistrate to record any observation, including drawing a sketch map.

LEXH1 is the sketch map she drew upon her observation of the status quo at the disputed area. I noted that there are defects in LEXH1. These however, are in my considered view, not enough to fault the trial magistrate for what she observed and drew. In fact, Counsel for the Appellant himself appeared to suggested that DID2 is better than LEXH1. The different however, is a simply a similarity as there is no fundamental distinction between LEXH1 and DID2. Besides that, the purpose of LEXH1 is only to clarify on the testimonies of on record and cannot be relied on in isolation of testimonies. In the judgment, there is nothing to suggest that the Trial Magistrate was wholesomely influenced by LEXH1 but, testimonies of witnesses. As I established above, this evidence is enough to support her conclusion.

Consequently, I am unable to agree with Counsel for the Appellant in faulting the learned Magistrate for deciding as she did.

On the question of ownership of the disputed land thereof, I find that the same belongs to the Respondent. This disposes of ground one, three, and four in the negative. I shall now determine ground two, relating to trespass to land by Appellant.

According to the Court of Appeal in *Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CA No. 4 of 1987*, the ingredients of trespass to land are;

- 1. That the disputed land belonged to the Plaintiff. - 2. That the Defendant had entered upon it, and - 3. That entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land.

It has been established that the disputed land belongs to the Respondent. It was undisputed that the Appellant entered upon the said land, claiming it as her. The Respondent's counterclaim against

the Appellant's entry upon the disputed land was unlawful. Consequently, this Court agrees with the trial Court, and finds that the Appellant was a trespasser on the disputed. The disposes of ground two in the negative as well.

In the result, Court finds that this appeal lacks merit.

Accordingly, the judgment and orders of the trial Court are hereby upheld. The Respondent is awarded costs of this appeal.

I so order.

……………………

Henry I. Kawesa JUDGE 9/11/2021

# 9/11/2021

Nasamula Ruth for the Respondent.

Respondent present.

Appellant present.

Court:

Matter is for judgment.

Judgment delivered to the parties above.

………………………….. Henry I. Kawesa JUDGE 9/11/2021