Nanyonga and 3 Others v Nanyombi (Civil Appeal No. 141 of 2019) [2021] UGHCLD 98 (10 August 2021)

#### **THE REPUBLIC OF UGANDA**

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

### **(LAND DIVISION)**

#### **CIVIL APPEAL NO. 141 OF 2019**

*(Arising from Chief Magistrate Court of Nabweru Land Civil Suit No. 55 of 2018)*

### **1. NANYONGA TEOPISTA**

- **2. NAKAZIBWE JUANITA** - **3. NAMYALO MARGARETE** - **4. NAKAUMA JOYCE :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

#### **VERSUS**

#### **NANYOMBI MARGRET ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **(BEFORE: LADY JUSTICE IMMACULATE BUSINGYE)**

#### **JUDGMENT**

This Appeal arises out of the Judgment of the Magistrate Grade 1 His Worship Mfitundinda George in Civil Suit No. 55 of 2018. The background of this Appeal is as follows;

The respondent/Plaintiff instituted Civil Suit No. 55 of 2018 at the Chief Magistrate Court of Nabweru against the appellant/respondent.

The Learned Magistrate Grade one delivered Judgment in favour of the plaintiff/ respondent on the 19th day of September 2019 by making the following orders;

- 1. That the Defendants are trespassers on the plaintiff's land. - 2. An award of general damages of Ugx, 1,000,000 to the plaintiff for the inconvenience and loss suffered as a result of the defendants' trespass. - 3. An eviction order against the defendants. - 4. A permanent injunction restraining the defendants from trespassing on the plaintiff's land.

The Appellants/ defendants being dissatisfied with the Judgment of His Worship Mfitundinda George which was delivered on the 19th day of September 2019, filed this appeal. At the hearing of this appeal, the Appellants were represented by Counsel Ngwabe Deogratius of **Lavoix Advocates** while the respondent was represented by Counsel Athieno Rebecca of **Namutamba & Co Advocates**. The Memorandum of Appeal before this Honourable Court contains the following grounds;

- 1. That the Learned Trial Magistrate Grade one erred in Law and in fact when he held that the respondent is the rightful owner of the suit land/ Kibanja and the Appellants are trespassers thereon. - 2. That the Learned Trial Magistrate Grade One erred in Law and fact when he concluded that the agreement/ deed dated 2/6/1986 between Paulo Semanda and Robinah Nanyonga, Maguleti Nanyombi and Topista Nanyonga was unenforceable. - 3. That the Learned Trial Magistrate Grade one erred in Law and fact when he selectively evaluated the evidence on record regarding the Appellant's acquisition and ownership of the suit land/ Kibanja thereby wrongly finding that the Appellants were tenants/ trespassers thereon. - 4. That the Learned Trial Magistrate Grade One erred in Law and fact when he disregarded the 1980 donation of the suit land/ Kibanja to the Appellants without any viable evidence to the contrary. - 5. That the Learned Trial Magistrate Grade One erred both in Law and fact when he misdirected himself on the law relating to tenants by occupancy and bonafide occupants hence wrongly concluding that the Appellants were mere trespassers. - 6. That the Learned Trial Magistrate Grade One erred in Law and in fact when he totally disregarded the grave inconsistencies and contradictions in plaintiff evidence thereby occasioning a miscarriage of Justice. - 7. That the Trial Magistrate erred in law and in fact when entertained and tried a matter outside his territorial Jurisdiction.

It is important to note that before addressing the grounds of the Appeal, I have to address my mind to the role of the 1st Appellate Court. The role of the 1st appellate court has to be addressed since this is a 1st appeal from the decision of the Magistrate Grade one to the High Court. The role was properly articulated in the case of *Selle and Another versus Assosiated Motor- Boat Ltd and Ors (1968) EA 123 at Page 126 Justice Clement De Lestang* stated the role of the first appellate court as follows;

**"An appeal … is by way of retrial … the 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".**

# See also the cases of *Fredrick J. K. Zaabwe versus Orient Bank Ltd & 5 Ors; SCCA No. 4 of 2006 and Pande versus Republic (1957) EA 336.*

In re-evaluating the evidence and subjecting it to fresh scrutiny, I will keep in mind the evidence adduced by both parties at Trial in order to resolve the grounds presented in the memorandum of Appeal.

#### **Ground one**

# *That the Learned Trial Magistrate Grade one erred in Law and in fact when he held that the respondent is the rightful owner of the suit land/ Kibanja and the Appellants are trespassers thereon.*

Counsel for the appellants made submissions on grounds 1-6 jointly. Counsel for the appellant submitted that the respondent's trial Court pleadings showed that the cause of action was for distress for rent and not trespass yet the trial Magistrate held that the appellants were trespassers on the appellant's land.

In reply, to the appellants' submissions in grounds 1-6, Counsel for the Respondent submitted that at trial, the agreed issues for resolution were *"whether the suit land belongs to the plaintiff, whether the defendants are trespassers, what are the remedies available* and as such the trial magistrate holding that the respondent is the rightful owner and the appellants are trespassers was an outcome of the resolution of the agreed issues on Trial.

#### **Resolution**

Whereas Counsel submitted on grounds 1-6, jointly, I shall resolve the grounds separately. According to the trial court Judgment, at page 2, the issues to be resolved were,

- a. Whether the suit Kibanja belonged to the plaintiff. - b. Whether the defendants are trespassers. - c. What remedies are available to the parties.

In order for the grounds of appeal to be resolved the issues raised in the trial Court have to be taken into account. Since the issue of ownership of the suit kibanja was raised at trial I shall proceed to reevaluate the evidence on record to ascertain the true ownership of the suit Kibanja.

According to the record of proceedings, on the 22nd day of July 1985, a one Semanda Paul donated to his daughter Nanyombi Margaret (the respondent) part of his Kibanja to carry out her business so that she would take care of her parents. However, the appellants claim to have been given the suit land through an oral donation in 1980 which which turned into a written agreement in 1986.

In **Semanda Paul's (Pw3's) testimony** in the trial Court, he stated that he has a certificate of title of the suit land and he gave the said suit kibanja to his daughter Nanyombi Margaret (the respondent). He further testified that he does not know Teopista Nanyonga (1st appellant) and Robinah Nanyonga. He also testified that apart from Nanyombi Margaret and Kabonge Jane, he has never sold to any other person and he covenanted that no one should disturb the respondent.

It is clear that there are two competing Kibanja interests on the suit land. According to the cases of **John Katarikawe versus William Katwiremu (1977) HCB 187 and Kari and Others V Ganarani [1997] 2 NWRR 380**, it was held that the first land sale transaction takes precedence over the 2nd land transaction. This is based on the principle of "*qui prior est tempre*" which loosely translates as "he who is earlier in time is stronger in law and when equities are equal and neither claimant has a legal estate, the first in time prevails.

In the instant case, both the appellants and the respondent claim to have Kibanja interests however, the respondent received her Kibanja in 1985 before the appellants who claimed to have received theirs in 1986.

The appellants main issue of contention is that they claim to have received their Kibanja in 1980 through an oral donation from Semanda Paul. However, Pw3 (Semanda Paul) who is the lawful owner of the suit land testified at trial that he does not know the appellants and he further testified that he only gave the suit Kibanja to his daughter Nanyombi Margret (respondent). The appellants have failed to prove the existence of their oral donation of 1980 and as such this court shall only consider the two written agreements.

Therefore, I agree with the trial Magistrate that the respondent is the lawful owner of the suit Kibanja since her land sale agreement was made first and as such this ground fails.

#### **Ground 2**

*That the Learned Trial Magistrate Grade One erred in Law and fact when he concluded that the agreement/ deed dated 2/6/1986 between Paulo Semanda and Robinah Nanyonga, Maguleti Nanyombi and Topista Nanyonga was unenforceable.*

As previously stated in ground one, Semanda Paul testified that he only gave his Kibanja to the respondent (his daughter) which corroborated the respondent's/ plaintiff's land agreement of 1985. Semanda Paul further testified that he does not know Nanyonga Teopista (1st appellant).

It is the respondent who testified that she invited the appellants on her land after their marriages failed so that they could work together.

I agree with the trial magistrate that the appellants' agreement of 1986 is unenforceable because the appellants are not known Semanda Paul who is the proprietor of the suit land and he claims that he only gave the suit Kibajna to the respondent. Therefore, ground 2 also fails.

#### **Ground 3**

*That the Learned Trial Magistrate Grade one erred in Law and fact when he selectively evaluated the evidence on record regarding the Appellant's acquisition and ownership of the suit land/ Kibanja thereby wrongly finding that the Appellants were tenants/ trespassers thereon*

Counsel for the appellants submitted that the trial magistrate considered the respondent's deed of donation of 1985 and ignored the appellants' oral donation of 1980.

In response, Counsel for the Respondent submitted that on the issue of lack of intention to be contractually bound to the oral donation was drawn from the evidence of Semanda Paul who denied ever being part of the said oral donation.

In rejoinder, Counsel for appellants submitted that the trial magistrate held that the 1986 agreement was unenforceable yet he had admitted it in Court and the said agreement was merely a formalization of the 1980 agreement.

#### **Resolution**

There is no clear evivedence on record proving that Semanda Paul gave the appellants the suit kibanja orally in 1980. The holdings in grounds 1 and 2 apply to ground the and as such this ground equally fails.

#### **Ground 4**

# *That the Learned Trial Magistrate Grade One erred in Law and fact when he disregarded the 1980 donation of the suit land/ Kibanja to the Appellants without any viable evidence to the contrary.*

Ground for is related to ground three. The holding in ground three applies to ground four and ground for fails accordingly.

# **Ground 5**

*That the Learned Trial Magistrate Grade One erred both in Law and fact when he misdirected himself on the law relating to tenants by occupancy and bonafide occupants hence wrongly concluding that the Appellants were mere trespassers.*

Counsel for the Respondent submitted that the appellants are merely licenses who were allowed to use the suit land as a market by the land owner (Semanda Paul) and as such are not bonafide occupants.

According to the testimonies of the appellants (Dw1, Dw3, Dw4, and Dw5), they were allowed by the land owner (Semanda Paul) for the sole purpose of operating a food market. The appellants further testified that they were allowed by the landlord in 1980 and they later signed an agreement in 1986.

### **Resolution**

According to **Section 29 (1) (b) of the Land Act,** a lawful occupant is the one who has entered land with the consent of the registered owner and includes a purchaser. **Section 29 (2) (a)** defines a bonafide occupant as a person before the coming into force of the 1995 constitution, has occupied and utilized or developed any land unchallenged by the registered owner for 12 years or more.

On the other hand, according to the **Blacks' law dictionary, 8th edition, page 2691, a licensee** is defined as a person who is given authority to do particular act upon another's land without possessing any estate therein.

In the instant case, it is clear from the appellants' testimony that they came on the suit land with the permission of the land owner (Semanda Paul) to each operate a market with a space measuring 10ft by 10ft. I find that the trial magistrate rightly held that the appellants were merely licensees on the suit Kibanja and not lawful or bonafide occupants.

Therefore, ground five also fails.

#### **Ground six**

*That the Learned Trial Magistrate Grade One erred in Law and in fact when he totally disregarded the grave inconsistencies and contradictions in the plaintiff evidence thereby occasioning a miscarriage of Justice.*

Counsel for the Appellants submitted that the respondent's evidence had grave inconsistencies and contradictions which the trial magistrate ignored. In response, Counsel for the respondent relied on the case of **Tuhangare Alfred versus Uganda Criminal Appeal No. 319 of 2001** and submitted that the inconsistence on who sold or whether there was a sale of any land to a third party a one Jane Kabonge by Semanda Paul was not an issue in dispute and as such the trial magistrate disregarded the same.

### **Resolution**

Pw1 (Nanyombi Magret) testified that she allowed Pw3 (Semanda Paul) to sell part of the suit land to a one Jane Kabonge and the said evidence was corroborated by Pw3's testimony. Whereas, during cross examination, Pw1 testified that she sold the suit land to Jane Kabonge and then later during reexamination, she testified that she allowed Semanda Paul to sell part of her Kibanja to Jane Kabonge, I find that this is a very minor inconsistence as it was not an issue for trial in the trial court and it does not go to the root of this case.

This ground also fails.

# **Ground 7**

# *That the Trial Magistrate erred in law and in fact when entertained and tried a matter outside his territorial Jurisdiction.*

Counsel for the appellant submitted that the cause of action arose from Nansana West, Wakiso District and as such the trial case should have been heard within the Chief Magistrate Court of Wakiso where the matter had geographical/ territorial jurisdiction as opposed to the Chief Magistrate Court of Nabweru. Counsel for the Appellant cited the case of **Makula International Ltd versus His Eminence Cardinal Nansubuga (1982) HCB 11** where it was held that an illegality once brought to the attention of court overrides all questions of pleading including admission

In response, Counsel for the respondent submitted that the appellants seek to challenge the territorial jurisdiction of the trial court by way of raising a preliminary point of law on appeal that was not raised in the lower court. Counsel for the respondent further submitted that in the case of **Makula International Ltd versus His Eminence Cardinal** **Nansubuga (1982) HCB 11,** it was held that an appellate Court has the discretion to allow an appellant to take a new point on appeal if full justice can be done to the parties.

Counsel submitted that both the courts have unlimited jurisdiction in the trespass matters and the only contention in this case is location and the appellants do not show how the mistake of both Counsel led to a miscarriage of justice. In conclusion, Counsel submitted that the mistake of both Counsel should not be imputed on the respondent.

# **Resolution**

It is trite that Jurisdiction is a creature of statute both pecuniary and territorial. However according to **Section 216 of the Magistrate Court Act, "***No objection as to place of suing shall be allowed on appeal unless the objection was taken in the court of first instance and unless there has been a consequent failure of justice."*

In the instant, it is true that according to the Magistrate Courts (Magisterial Areas) Instrument, 2017, the place of suing for the trial court should have been the Chief Magistrate Court of Waksio and not the Chief Magistrate Court of Nabweru.

In accordance with Section 216 of the MCA, Counsel for the appellants did not raise the issue of territorial jurisdiction in the trial court and even proceeded to defend the suit until its final determination. Whereas I agree with the holding of **Makula's case** that an illegality once brought to notice of court supersedes admission among others, I would like to distinguish the instant case from the case of **George Wandera versus Gerald Wafula CA 32 of 2008, where the parties were not represented in the trial court.** In the instant case, both parties were well represented and the said matter was heard on its merits until its final determination and yet none of the Counsel raised the said issue as a point of law.

The issue in this Court's mind is whether if the said case was to be retried, the outcome would be different or rather we would be delaying justice which is injustice in itself. In the instant case, Counsel for the appellants has failed to prove that the appellants suffered any injustice by the trial court being the Chief Magistrate of Nabweru as opposed to the Chief Magistrate of Wakiso.

I find that no injustice was occasioned to either party and as such this ground also fails.

Given the above re-evaluation of the evidence and resolution of the grounds of the Appeal, the Appeal is dismissed and the following orders are hereby made;

The Orders of the Trial Magistrate Grade one are hereby upheld to the effect that;

- a) The appellants are trespassers on the respondent's land. - b) The respondent is awarded Ugx 1,000,000 in general damages. - c) An eviction order doth issue against the appellants. - d) A permanent injunction restraining the appellants from further trespass on the suit Kibanja. - e) The appellants shall bear costs in the lower court and of the appeal.

#### **I SO ORDER,**

Judgment delivered at High Court, Land Division this **10th day of August 2021 by email.**

**………………………………………………....………**

**IMMACULATE BUSINGYE BYARUHANGA**

**JUDGE**