Namatovu v Nakakande & Another (Civil Appeal 80 of 2023) [2024] UGHCLD 290 (5 December 2024)

# **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(LAND DIVISION)**

## **CIVIL APPEAL No.080 OF 2023**

**(Appeal from the Chief Magistrates Court of Makindye at Makindye, Civil Suit No.048 of 2020)**

**NAMATOVU ROSEMARY :::::::::::::::::::::::::::::::::: APPELLANT (Administrator of the estate Of the late Matovu David)**

# **VERSUS**

# **1. NAKAKANDE WINNIE 2. NASSANGA CAROL :::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

# *Introduction;*

1. *Namatovu Rose Mary* herein after referred to as the Appellant brought this appeal against *Nakakande Winnie and Nassanga*

*Carol* herein after referred to as the respondents appealing against the decision of Her Worship Esther Adikin, Ag Chief Magistrate at Chief Magistrate Court of Makindye at Makindye in Civil Suit No.048 of 2020 delivered on the 19th day of May 2023, by which judgment was entered in favour of the Respondents

(defendants) against the appellant (plaintiff in the lower court) for orders that; the defendants are the rightful owners of the disputed land/portion, the plaintiff is hereby ordered to demolish the toilets within 30 days from the date of this judgement, a permanent injunction is hereby issued against the plaintiff, his agents, assignees and or successor in title from further trespassing and or interfering with the defendants property, the defendants are awarded Ugx 3,000,000/= as general damages and costs of the suit and counter claim were awarded to the defendants/counterclaimants.

### *Background;*

2. In the lower court, the appellant sued the respondents for a declaration that the suit property belongs to the plaintiff, a declaration that the defendants are trespassers on the suit property, an order for the defendants to demolish the encroaching features from the suit kibanja immediately, a permanent injunction restraining the defendants, their assignees, successors in title and agents from further trespass on the suit property, general damages for inconvenience caused to the plaintiff, an interest of 28% on the above from the date of judgement till

payment in full, costs of the suit and any other remedies Court deems fit.

- 3. Briefly, the appellant's/plaintiff's case at trial was that in around 1976, the late Mr. Matovu David bought a Kibanja located at Makindye -Luwafu, Makindye Division Kampala District. The said plot was purchased from a one Namutebi Maria for a consideration of Ug shs 60,000/= (Uganda Shillings Sixty Thousand) and an agreement was made to that effect and the said plot measured 80ft by 154ft by 123ft by 182ft. - 4. The plaintiff's father registered this Kibanja with Buganda Land Board. Mr. Matovu took possession of the Kibanja and immediately started living thereon and developed it with a house and rental houses, he built latrines and bathrooms for the rentals at the end of the property bordering the defendant's property. - 5. That by the time of purchase, the defendants had neither purchased the adjacent land nor moved into the neighborhood. That the two families have been living peacefully until 2017 when the defendants begun encroaching on the plaintiff's land by cutting down the plaintiff's demarcating shrub which was behind the toilet amidst threats and without their consent.

- 6. The defendants went on to remove all the soil behind the plaintiff's latrine thus leaving it hanging and went ahead and constructed a perimeter wall blocking off the plaintiff's latrines which they have been using since the kibanja was purchased and currently the tenants are finding it hard to use the same latrines. - 7. That the defendants' actions have caused the storm water to clog between the house and fence weakening the foundation of the house and most of the water enters the latrines and bathrooms thus preventing the tenants from using them and some of them vacated. - 8. That currently the rentals are the main source of income and medical care for the plaintiff and his family in general and therefore, the defendants have interfered with their livelihood and their actions are a hinderance to the plaintiff's quite possession of land because of which they have suffered great loss, mental anguish, damage and financial loss for which he will seek general damages. - 9. At trial the respondents'/ defendants case was that the suit property does not belong to the plaintiff's family, the defendants

are not trespasser and have not caused any inconvenience to the plaintiff's family.

- 10. The defendants now respondents filed a counter claim for a declaration that the plaintiff now appellant is a trespasser and that they are the rightful owners of the suit land. - 11. That the counter claimants aver that their late father, the late Titus Ssesanga bought the said land sometime in 1983 and duly occupied the same, until the plaintiff/counter defendant and his family started trespassing on the same by constructing thereon. - 12. The Trial Magistrate entered judgement for the defendants/respondents and awarded the reliefs mentioned earlier. - 13. Being dissatisfied with that decision, the appellants appealed on the following grounds, namely; - i) That the learned Trial Magistrate erred in law and fact when she completely ignored the plaintiff (Appellant) evidence on court record regarding ownership of the suit property, how long they have been in possession of the suit property and when the appellants toilets were constructed on the suit land thereby reaching a wrong decision.

- ii) The Learned Trial Magistrate erred in law and fact when she ordered the appellant to demolish their structure which was constructed before the defendants were in occupation of the adjacent land. - iii) The Learned Trial Magistrate erred in law and principle when she awarded the respondents damages of Five million which were excessive.

### *Representation;*

14. At the hearing of the appeal, the appellant was represented by Counsel Nakato Juliet of M/s NAN Advocates while the respondents were represented by Counsel Jean Kyalisima holding brief for George Musisi of M/S Pace Advocates. Both parties proceeded by way of written submissions.

### *Duty of the appellate court;*

15. This being a first appeal, this court is under an obligation to rehear the case by subjecting the evidence presented to the court below to a fresh scrutiny and re-appraisal before coming to its own conclusion. (See; Nanensio Begumisa and three Others vs Eric Tiberaga SCCA 17 of 2000)

- 16. It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate 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, the nature of this duty was put more appropriately in **Selle vs Associated Motor Boat Co. [1968] EA 123.** - 17. An appeal is by way of retrial and the principles upon which this Court acts in such an appeal are well settled, briefly put they are; that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. - 18. In particular this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent

with the evidence in the case generally. (See; Abdul Hameed Saif Vs Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)

### *Power of the appellate court;*

- 19. Section 80(i) of the Civil Procedure Act Cap.71 grants the high court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate court shall have the power to determine a case finally. The appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the act on courts of original jurisdiction in respect of suits instituted in it. - 20. Before proceeding with the merits of the appeal, counsel for the respondents raised a preliminary objection in regards to the validity of the instant appeal and that there lies no appeal before this court because the judgement in the main suit was delivered on the 19th of May 2023 and the memorandum of appeal was filed in this court on the 1st August 2023 way after the 30 days provided for under section 79 of the Civil Procedure Act. - 21. The Civil Procedure Act under section 79(i) provides that an appeal shall be entered within 30 days of the date of the decree or order of court. - 22. The memorandum of appeal in the instant case was filed on the 1st of August 2023, the notice of appeal on the 24th of May 2023 whereas the judgement of court was delivered on the 19th of May 2023, that means that the memorandum of appeal was filed way after the 30 days provided for. - 23. However, for purposes of ensuring that both parties to this appeal find justice and to have all the matters in dispute determined, this court is moved to have the instant appeal validated as provided under section 79 of the Civil Procedure Act that the appellate court may for good cause validate the appeal. - 24. Further this court is clothed with inherent powers to ensure that the ends of justice are met in all cased before it, therefore the preliminary objection raised by the counsel for the respondent is hereby overruled and the appeal will proceed on its own merit.

## *Grounds 1 and 2;*

## *Submissions by counsel for the appellants;*

- 25. While resolving the 1st ground, Counsel for the appellant relied on the provisions of Section 101(1)(2), 102 and 103 of the Evidence Act cap 6 asserting that in matter of trespass, all that the plaintiff has to do is to show proof that they owned the land and that the defendants encroached on it without a claim of right. That all evidence produced has to show that the land encroached on belongs to the appellants. He further relied on the authority of Manchester Airport plc v Dutton [2000] QB 133, to state that trespass to land is normally actionable only by the person who is in possession of the land which they ably proved through the evidence adduced however the magistrate failed to evaluate the same thus reaching a wrong conclusion. - 26. Counsel further stated that PW1, Namutebi Maria under paragraph 6 of her witness statement confirmed having sold the Kibanja measuring 80ft by 154ft by 123ft by 182ft to the plaintiffs who have been using the same since. She further stated that the original agreement got lost but she had since made a second one for the plaintiffs and it included the original measurements. That the family of the late Matovu David immediately took possession developing the land with a residential house and rental houses.

The appellant's father built toilets and bathrooms for the rental house.

- 27. PW2, the wife to Matovu John, was present at the time the land was purchased and when her husband begun to construct their residential home and the Respondent's father later purchased the adjacent plot which was by then occupied by a lady called Feeza who sold local brew. That Buganda Land Board officials came to survey the land when the neighbours had threatened to trespass and had put mark stones in her absence as well as cutting down the shrub (kakomera) that was behind the toilet demarcating the two plots. - 28. That both parties did not have agreements and the evidence of PW1 pointed out the measurements of the land which she sold to the appellant's family and the demarcations show that the toilet is found well within the land. - 29. Counsel further submitted that the Magistrate ought to have disregarded the evidence of DW3 a neighbour who was not in the area when the defendants/respondents bought the land and only returned after both families had settled in place. That the appellant witnesses testified that the encroachment begun around

2012 when the Respondents' agents cut down the shrub which was behind the toilet without their consent and later installed a chain link and further moved all the soil behind the toilet thus leaving it hanging and constructed a perimeter wall blocking off the appellant's toilets which the appellant and the tenants had used since the kibanja was purchased.

30. That despite the fact that the Learned trail Magistrate recognized the existence of the ancient shrubs during locus which were established to demarcate the boundary, she over looked the fact that the other boundary settings such as the chain link, angle line and perimeter wall had deviated from the direction where the old shrub used to pass.

## **Submissions by Counsel for the Respondents**

31. Counsel in his submissions relied on Section 101 of the Evidence Act which provides that whoever desire any Court to give judgement as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist and that the appellants did not provide any evidence to prove that the suit land belonged to them but rather they only neighbored it.

- 32. That PW1 did not have a copy of the land sale agreement and neither could she recall the year in which it was made. She further informed Court that she did not know the exact size of the appellant's land. PW2 also stated that during registration with Buganda Land Board, the surveyors put mark stones demarcating the property but during cross examination she still stated that she did not know the exact measurements of the land. PW3 also states during cross examination that's she did not know the size of the land and on making the new copy of the agreement she relied on the memory of the seller/vendor but did not take fresh measurements. - 33. That PW4 and PW5 also admitted to not knowing the exact measurements of the land. That the contradictions and failure by the appellant to know the actual measurements of their land go to the roots of the action. Counsel further relied on the authority of **Shokatali Abdulla Dhalla v Sadridin Merali SCCA No. 32 of 1994** stating that a contradiction which is major leads to possibility that a witness is not telling the truth and such are consistent with fraud. Therefore, the appellant failed the requirements under section 101(1) and 102 of the Evidence Act.

- 34. That the appellant alleged that they owned the suit land but did not show any evidence. That the respondents showed through legal process that their late father acquire the land and there was peace before the appellant encroached on their land and continued to do so until they erected a fence to protect their interest. - 35. That the respondent's evidence that there was an angle line demarcating the plots which was followed by the respondents when constructing the perimeter wall was consistent evidence given by all the Respondents' witnesses and fortified when Court visited locus. That the trial court was right in its conclusion that the suit property belonged to the Respondents and not the appellant and that the appellant should demolish their toilets as they protruded and trespassed onto the Respondents' land.

## *Analysis of ground 1 and 2*

36. Court in the authority of **Shiek Muhammad Lubowa v Kitara Enterprises Ltd C. A No. 4 of 1987** noted that in order to prove trespass, it was incumbent on the appellant to prove that the disputed land belonged to him that the Respondent had entered upon that land and the entry was unlawful in that it was made

without his permission or that the Respondent had no claim or right or interest in the land.

- 37. For one to succeed in an action for trespass, he/she has to prove the following; that the disputed land belonged to him, that the respondent had entered upon that land and that the entry was unlawful in that it was made without his permission or that the respondent had no claim or right or interest in the suit land*.(See* **Muhammed Lubowa vs Kitara Enterprises Ltd C. A No.4 of 1987**, **as cited with approval in the case of Dennis Desire Mitti vs. Patrick Sewagude Musoke & Ors. HCCS 449 of 2016** - 38. Whereas it is not in dispute that both parties own land (plots) adjacent to each other, the dispute only arises over a small portion of it and or the boundary in which the toilet was constructed. The appellants and his witness led evidence to show that both plots were separated by a shrub and the tenants' toilet existed before the Respondents acquired the plot behind the shrubs. - 39. In a bid to prove ownership of the suit kibanja, the plaintiff led a witness who summarily stated as below;

- 40. PW1, Namutebi Maria stated that in 1976, she sold the suit Kibanja to Matovu David. That there was a path behind the toilets demarcating the two plots where most villagers used to pass. That sometime in 2017, Ms Namugenyi approached her and told her that since her husband got ill they had tried to trace the agreement in vain but she had also lost hers in the process of shifting. - 41. That Namugenyi requested Namutebi to draft another agreement that would reflect the earlier purchase. That in 2017, the defendants now respondents encroached on part of the plaintiff's now appellant's property. - 42. PW2, Namugenyi Teddy stated that by the time her and her husband settled on the suit land, the defendants had not yet purchased and the adjacent land was owned by Paulo who rented it to Feeza. That her husband-built toilets and bathrooms for the rental houses at the end of their property in front of the cedar/ shrub bordering the now defendant's property. That in 2014, the defendants now respondents began encroaching on the property by cutting down the cedar/shrub behind the toilet amid threats and armed with pangas.

- 43. That during the registration of the Kibanja, surveyors from Buganda Land Board put mark stones in their absence which were protested because of the land wrangles. In 2017 the defendants now respondents continued encroaching thereby erecting a permanent hardcore fence through the toilets. - 44. PW4, Matovu John stated that the shrubs were behind the toilets and they had been cut down by the defendants/respondents who put up a chain link fence behind the toilets and beyond the boundary mark of the shrubs after which they constructed a fence which is blocking the tenants' toilets and the passage is clogged with water. This evidence was collaborated by that of PW5, Nakanwangi Teopista. - 45. However, DW1, Nassanga Carol in her evidence informed Court that the dispute started when the plaintiff now appellant's father constructed a toilet onto their land and they decided to put a chain link fence after the shrub boundary marks had become weak. That the plaintiff/appellant's father was present and he was told that he had trespassed onto our land which he accepted and begged that we don't raze down the toilets.

- 46. DW3, Nabukenya Dorothy states that she is a neighbour to both parties to the suit since 1973 and at the time the plaintiff/appellant's father stated the construction, there were protests that he was encroaching on the defendants/respondents' land. - 47. All the above evidence was collaborated by that of DW4, Ssessanga Nelson who stated that he was one of the people that cleared the land when the defendants/appellants' father purchased, planted the shrubs and demarcated the boundaries and thus it's the plaintiff/appellant's father that encroached and he was sure that it was the plaintiff/appellant's father that trespassed on the defendants/Respondents' land. - 48. Whereas it is quite clear from the above evidence, the plaintiff/appellant entered onto the land first before the respondents. However, during cross examination, all witness were not sure of how big the plaintiff's land is neither could they tell the specific boundaries of the land in question. It is also clear that the perimeter wall was constructed after the toilets were constructed. - 49. None of the parties conducted a boundary opening exercise to confirm the encroachment and its extent. In the absence of

documentary evidence Court is compelled to rely on the oral testimonies of the witnesses.

- 50. Counsel for the Respondents submitted that it was the evidence of DW4, that there was an angle line used to demarcate the Respondents' boundary at the time when their father was alive and one could clearly see that the appellant's toilets had encroached on the Respondent's land way before the respondent erected the fence. This was fortified when Court visited locus and indeed confirmed that there was indeed an angle line clearly very old and the perimeter wall was constructed right from the angle line straight following the boundary, all this evidence was uncontroverted. - 51. In the face of conflicting oral testimonies, one of the tools used to extract the truth from falsehoods is ascertaining whether the evidence of a particular witness in respect of any particular fact or set of facts is in conformity with real life experiences and collateral circumstances. If the testimony tallies with what happens in real life in the given situation, then the probability is that it is truthful. *(See; Ambayo Jospeh Waigo v Aserua Jackline CA No. 0100 of 2015)*

- 52. This Court will heavily rely on the evidence led by DW4, Ssesanga Nelson both in Court and while at locus as it has consistence in it. He informed Court that the plaintiff's now appellant's toilets were constructed after erecting the angle line. This explains why the perimeter wall was built and the toilets were left hanging. - 53. On account of the above evidence, it's quite clear that despite the fact that the appellants occupied the land first, being unsure of their boundaries, they trespassed onto the respondents' land by constructing a toilet thereon. - 54. That notwithstanding, the time a person has spent on land is immaterial when it comes to allegations of trespass as trespass solely deals with interference of possessory rights and not who came first or last onto the disputed property. - 55. In the circumstances, I find no reason to deviate from the reasoning and judgement of the Trial Magistrate. Therefore, grounds 1 and 2 are resolved in the negative.

# *Ground 3;*

56. It is the submission of counsel for the appellant that the general damages were defined by Hon JusticeStephen Mubiru in **Waiglobe**

**ltd vs Sai Beverages CS 016 OF 2017** that general damages are what the law presumes to be direct, natural or probable consequence that will have resulted from the defendant's breach of contract.

- 57. Counsel for the appellant further submits that in the instant case the appellant did not do anything from which the respondents suffered damages that ought to be compensated, instead it is the respondents who blocked the appellants toilets and bathrooms something which was discussed and has chased away our tenants as seen in the witness statements of Nakanwagi Teopista. - 58. In reply counsel for the respondents submitted that damages are pecuniary compensation obtainable by success in an action and relying on the case of Crown Beverages ltd vs Sendu Edward supreme court civil appeal no. 01 of 2005 where court states that it is the law that the appellate court will not interfere with the award of damages by a trial court unless the trial court has acted upon a wrong principle of law or that the amount was so high or so low to make it entirely erroneous estimate of the damages to which the plaintiff is entitled to.

- 59. Counsel for the respondents submitted that the award of general damages was done at the discretion of court and it was neither too high and neither too low to make it erroneous in the estimation of the damages awarded. - 60. In the instant case the trial chief magistrate in her judgement stated that the defendants constructed the perimeter wall but could not complete the construction since the plaintiff had erected his toilet on portion of their land. I find that an inconvenience to the defendants that warrants the grant of general damages of Ugx 3,000,000/=. - 61. Being guided by the decision in **Uganda Commercial Bank vs Kigozi (2002)1 EA 305** where court stated that the position of the law is that general damages are at the discretion of the court and their award is not meant to punish the wrong party but to restore the innocent party to the position, he or she would have been in had the damage not occurred. - 62. Referring to the circumstances of this case I find an award of UGX 3,000,000 by chief magistrate not too erroneous and the same is not too high or too low, this court therefore doesn't find any reasons to interfere with the award of UGX 3,000,000 as

general damages by the chief magistrate. Therefore ground 4 is resolved in the negative as well.

- 63. In the circumstances, this Court finds no reason to interfere with the orders given by the trial Court and the said judgement is hereby upheld where in the appellant is expected to comply within a period of 30 days from the date of delivering this judgement. - 64. Therefore, this appeal is consequently dismissed with no order as to costs.

# **I SO ORDER**.

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE.**

#### **05 th /12/2024**

#### **Delivered on the 05 th day of December ,2024 electronically via**

# **ECCMIS.**