Nanyonga Kelementina and Another v Lubega (Civil Appeal No. 25 of 2009) [2011] UGHC 208 (28 March 2011)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT NAKAWA CENTRAL CIRCUIT CIVIL APPEAL NO. 25 OF 2009 [ARISING FROM KIBOGA LAND CASE NO. 19/2008] 1. NANYONGA KELEMENTINA 2. KAMEGER GEORGE WILLIAM **....................................** V E R S U S **RESPONDENT** LUBEGA FRANCIS: :::::::::::; HON. LADY JUSTICE FAITH MWONDHA BEFORE: inc. THE REPUBLIC OF UGANDA $01.000$ FEES PAID. JUDGMENT $01120 + 98745$ **RECEIPT NO.** ASST:DEPUTY REGIS

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This was an appeal brought before me by the appellant's Counsel Ms. Nambirige & Co. Advocates, the appellants having been dissatisfied and aggrieved by the Judgment and orders of Magistrate Grade I of Kiboga, His Worship Duncan N. Sande delivered on the 23rd April 2009. The grounds of appeal were in the Memorandum of Appeal as hereunder:-

CERTIFIED C 1. That the learned trial magistrate erred in law and facts when he misdirected himself and failed to properly evaluate the evidence as a whole and thereby coming to a wrong conclusion. $HIGH CCHPT$ HIGH COURT NAKAWA

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- 2. That the learned trial magistrate erred in law and fact when he failed to give the LC 111 ruling dated 30th 10. 2009 proper legal effect. - 3. That the learned trial magistrate erred in law and fact when he misdirected himself by solely relying on evidence at the locus. - 4. That the learned trial magistrate erred in law and in fact when he contradicted himself that the 1st plaintiff/appellant was only entitled to 100' x 100' plot. - 5. That the learned trial magistrate erred in law and in fact when he relied on the decision of the District Land Tribunal of Kiboga; Claim NO. KBG/DLT/02 of 2004 of which the appellants were not. parties.

The duty of the first appellant court is to evaluate the court record afresh to facilitate and come up with an independent decision. The issues to be determined at the trial were as follows:-

- 1) Whether the plaintiff were the rightful owners *of* suit land. - 2) Whether the plaintiff are being denied quiet possession of the suit land by the defendant. - 3) Whether the defendant is entitled to any part of the land. - 4) Remedies available to the parties.

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Pc. EK. TiF7ED7:0R7<Ec'n On the first issue, PW) .testified that she was 80 years old. She stated that she was in ccrat^because of a kibaqja which the defendant had encroached on during thBiday< j£hgEstat0d that she acquired that suit land 24 years ago; A'n477eR-p^^u.<^dJa sale agreement which </vas tendered and marked as Ex. P2/19/08 in court in 2008. She said she had developed it and grew cassava on it.

There was no objection to it. She said she bought it in 1981 when the 'Mayumba Kumi" were the people in charge and in cross examination, she said that the defendant didn't stay on the same village with her. That these Mayumba Kumi stamped and signed n the agreement. PW2 was aged 60 years. He stated that he was in court because of his kibanja the defendant had graded. He said he acquired it in 1981 when he bought it from Kisiggwa Sebastiano and that ever since, he had never conflicted with anyone over his kibanja even during the time of the father of the defendant. He tendered the original sale agreement and it was marked Ex. P1/19/08. PW3 was declared as hostile and his evidence was disregarded. However, the evidence of PW3 established that the plaintiffs had bibanja, having PW2 bought it from the witnesses' father in -law while PW1 bought hers from Mbaziira.

He said that the defendant was on government land and neither party should claim ownership. PW4 told court that he had a kibanja since 1977 and that in 1980 to 1981 sold it to PW1 and he left. That later in 2006, he learnt that the defendant was claiming ownership and he wondered how that can be. He testified that even PW2 used to have a kibanja, adjacent to that one he sold to PW1. He said that there was nobody who claimed their bibanja. He said he signed an agreement and the Mayumba Kumi witnessed it. This witness was called Kamada Nsabimaana. PW5 told court that the kibanja PW1 claims used to be his father's kibanja. That his father sold it to PW4 who eventually sold it to PW1.

That PW2 bought his kibanja from one Kasingiri. That the witness's kibanja was adjacent to PW2's kibanja. That PW4 made an agreement for PWI but that his father made one. That by the time PW4 bought that land, one Misusera Was still alive and that Misusera had never had any land conflicts.

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PW6 testified that the plaintiffs were the owners of bibanja, but the defendant, using a tractor, he encroached on PW1 & PW2 kibanja. That he uprooted boundary marks and damaged their properties. He told court that in 1986 when he bought his kibanja adjacent to PW1 and PW2's, he used to see them dig in them dig in the cassava and he was using that land.

On the other hand, the defendant said that the suit land was his, having inherited it from his parents. That before the plaintiffs dug his land, he bought a tractor to dig and the plaintiffs went to police to complain. That when the police came, he showed them the documents and they were given a go ahead.

That the 7th Day Adventists had encroached on the land and he sued them in the Kiboga District Tribunal and he won the case. That it was after that, that the plaintiffs started digging that land. He said that he didn't damage anything as there was no food or crops or fruit trees. That, that's when they decided to institute this suit.

He told court that before his father passed away, the plaintiffs used to have land adjacent to that part in dispute and that disputes arose after the death of his father as they had not encroached on that part in dispute.

DW2's testimony contradicted the defendant's testimony. She stated that it was not true that t^e-pDaWiiffi)t(p©^gi^~bibanja adjacent to the suit land. (See para 15 dfrthe record of proceedings. The defendant stated that when his fatnefeOas still alive the^plaintiffs were living on the adjacent bibanja. (Spe pp^i^.-gfjth^jecord of proceedings) she also stated in cross examinatiorTTlTar^tTe~""didn't know where the plaintiffs' bibanja were. (See page 15 of the record of proceedings). She went on to mention that the plaintiffs had no structures on th?

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bibanja and yet they were living there. Court observed that she was stating so because the defendant was her brother. She was untrustworthy and unreliable witness.

The court went to *locus in quo*. From the record, from page 16 to mid page 18, it was mainly the defendant/respondent who was testifying and cross examined by counsel for the plaintiffs. The second plaintiff/appellant testified that one Kampize testified that he burnt their three houses on orders of the defendant. This was after the $2nd$ plaintiff had stated that the defendant graded two acres. He had testified that he had planted matooke suckers on his kibanja. That the defendant burnt his houses, that he had fifteen (15) Misambya trees which were uprooted by the grader brought by the defendant and could not be seen by the time they visited the *locus in quo*.

It was clear from the evidence that when the father of the defendant was alive, there was harmony. The disharmony started after his death. The plaintiffs, it was very clear from the evidence that they were living on that land since 1981.

The counsels for the parties filed written submissions. I have had the opportunity to carefully evaluate the lower court record to find out if the findings of the lower court could be sustained. I also carefully considered the submission of both counsel for and against the appeal.

After careful consideration of the above stated, if found on issue 1, that the suit land was not ascertained by evidence on record, but what came out clearly was that that the plaintiffs had bibanja which they had bought as far as 1981 and they were enjoying quiet possession until he defendant brought a grader and trespassed on their bibanja.

It is also very clear that the boundaries of the bibanja were not brought out from the evidence. It was a miscarriage of justice for the tral

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magistrate not to ascertain the extent of trespass since he visited the *locus in quo.*

So to answer the 1st issue, the plaintiffs had a right on the suit land as far as their bibanja were concerned and they were rightful owners of the bibanja and they had interest in it.

On the 2nd issue, having resolved the 1st issue in affirmative, it's true that the plaintiffs/appellants were being denied enjoyment of quiet possession of the suit land because of the interest they have in their bibanja.

The evidence on record showed that the plaintiffs bought bibanja from different persons when the father of the defendant/respondent was still alive in 1981. The plaintiffs did not state how big edch kibanja was and the defendant also never stated the size of his land which belonged to his father and was adjacent to the plaintiffs' bibanjas. It was not known if this land was registered or not as the defendant never adduced evidence to that effect. From that, it's clear that the land in disputed could not have been part of the land the defendant was claiming and that it was his and graded it indiscrimately.

levies The : a to The 2nd plaintiff stated that the District Land Tribunal stated that it was 150 acres and definitely, the plaintiffs could not have bought bibanja of 150 acres in total. But from the 2nd plaintiffs' evidence, he said that there were Misambya trees, which were uprooted by the defendant with a grader. Misambya tree?%t^pfjl5Ht6d^f<5iCaemarcating boundcries customarily. That his hoytse-f; were burnt by the defendant, defendant had also conceded'thatj^e saw the 2,d plaintiff building house in his land, but he Ieft lain why he left hin build his house and then one day he woke up just to burn his hous^.

So it's important to ascertain the size of the bibanja of the plaintiffs, facilitate answering the 3rd issue whether the defendant is entitled to any part of the land conclusively. Though it should be noted that the evidence show that they are entitled to some part of the land.

I finally come to this conclusion because it's not in dispute that the defendant's father was the owner of the land the defendant was claiming, that led to the destruction of the houses and crops much as he denied having destroyed the crops of the bibanja holders. Further that the father was staying in harmony with the plaintiffs. That being the case, it means that after ascertaining the sizes of the bibanja of the plaintiffs, then the remaining land including the area which the father of the defendant possessed would be an entitlement for the defendant. I even wonder how the trial magistrate could have said that the plaintiff owned only 100 ft x 100 ft' when the evidence is silent about it. It was the defendant's wrong doing when he uprooted the boundary marks, the Misambya trees. The principle of natural justice dictates that one can't benefit from his own wrong.

I am unable to agree with counsel for the defendant/respondent that they failed to prove their case. The defendant/respondent that they failed to prove their case. The defendant was merely taking advantage of them given their age.

On the last issue, it was clear that the plaintiff owned bibanja on the suit land. The evidence 'p^E^TereEtDC<pK®.'g€ltRat on a balance of probabilities from the witnesses jof the plaintiffs. Accordingly judgment is entered in favour of the fjlSfitf^appellants. j

So the appeal is allowed in

Removal of the trespassing plantations on the plaintiffs land. **(1)**

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- (2) A permanent injunction against any further trespass do issue. - **(3)** General damages to the tune of shs. 3,000,000/- awarded to the plaintiffs/appellants. - **(4)** The Chief Magistrate goes to the *locus in quo* for purposes of ascertaining the boundaries of the bibanja and demarcation. - (5) Interest at 6% from the time of this judgment. - (6) Costs of this court and below awarded and the judgment and decision of the lower court is set aside.

Right of appeal explained.

**FAITH MWONDHA JUDGE 28/03/11**

## Court:

Judgment delivered in open court. Appellants present. Respondents absent.

Nambirige for appellants Onyango for respondent. KW/1 ■■

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**FAITH MWONDHA JUDGE 28/03/11**

### THE REPUBLIC OF UGANDA

### **IN THE HIGH COURT OF UGANDA AT NAKAWA CENTRAL CIRCUIT**

### CIVIL APPEAL **NO. 25 OF 2009**

## **[ARISING FROM KIBOGA LAND CASE NO. 19/2008]**

#### **APPELLANTS VERSUS 1. NANYONGA KELEMENTINA 2. KAMEGERE GEORGE WILLIAM** [:

**LUBEGA FRANCIS: RESPONDENT**

# **DECREE**

*bo* This matter coming up this 28th day of March 2011 for final disposal before **HON. LADY JUSTICE FAITH MWONDHA,** in the presence of the appellants and their advocate **Ms. Nambirige Nuruh** and in the presence of **Mr. Onyango Francis** for the respondent,

#### **IT IS HEREBY ORDERED THAT;-**

- Removal of the trespassing plantation on the plaintiff's land. **(1)** - (2) A permanent injunction against any further trespass do issue. - (3) General damages to the tune of shs. 3,000,000/- awarded to the plaintiffs. - **(4)** The Chief Magistrate goes to the *locus in quo* for purposes of ascertaining the boundaries of the bibanja and demarcation. - Interest at the rate of 6% from the time of this judgment. (5) - (6) Costs of this court and below awarded to the appellants and the judgment and decision of the lower court is set aside.

**Q**

2011 GIVEN under my hand and the sea! of this honourable court this o day of ../.^z.v4.

..... 3.t. h. .3 **FAITH MWONDHA JUDGE**

# *Extracted by:*

Ms. Nambirige & Co. Advocates Along Lower Street Near Kiboga Shell & Taxi Park P. 0. Box 3999 KAMAPALA

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