Nsubuga v Kamugisha (Civil Appeal 82 of 2022) [2023] UGHCLD 251 (24 August 2023)

Full Case Text

| 5 | THE REPUBLIC Otr'UGANDA | |----|-------------------------------------------------| | | IN THE HIGH COURT Or. UGANDA AT KAMPALA | | | (LAND DTVISIONI | | | CIVIL APPEAL NO. OOA2 OF 2022 | | | (ARISTNG FROM CrVIL SUIT NO. 20 OF 2O2O NAXAWAI | | 10 | APPELLANT NSUBUGA BLASIO | | | VERSUS | | | RESPONDENT KAMUGISHA VINCENT | | | JUDGMENT |

# BEFORE. HON. LADY JUSTICE E,LIZABETIJ JANE ALIVIDZA

#### 15 Representation

The Appellant is represented by M/s T\rmusiime, Irumba & Co. Advocates and the Respondent is represented by M/S Tummwesigre Louis & Co Advocates.

# Introduction

This Appeal arises from the judgment and orders of Her Worship Akullo Elizabeth Ogwal of Chief Magistrate's Court of Nakawa deiivered on line 27ts'March 2022- 20

The Appellant being dissatislied with the decision of Her Worship Aku11o Elizabeth Ogwal raised the following grounds;

- 1. The learned trial magistrate erred in law and fact when she held that the adjudged access road measuring 14 ft. does not form part of the defendant's land comprised in Block 216 plot 3105 situated in Kulambiro-Kisaasi in Kampala. - 2. Tlne learned trial magistrate erred in 1aw and fact when she held that that defendant had illegally included in his certificate of title the access road. - 3. The learned trial magistrate erred in 1aw and fact when she ordered that the adjudged access road measuring 14 ft be separated from the defendant's title in respect of land comprised in Block 216 Plot 3105.

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### Saskground.

The Respondent/ Plaintiff sued the Appellant/ Defendant in the lower Court vide Civil Suit No. 20 of 2O2O for declarations that the suit access road measuring approximately 14 feet doesn't form part of the Appellant's land, a permanent injunction, general damages and costs.

The Respondent asserts that he bought the suit access road from a one Hajjati Farida Kibira Semakula on the 5lO4l 1999 who was then the owner of Block 216 plot 900 before the Appellant. He immediately graded it and began using it before tarmacking it. In March 2001, when the Appellant bought part of Block 216 plot 900 from the Hajjat Kibira, it impliedly included the suit access road. That during transfer, the Appellant transferred the whole portion including the access road onto his title.

The lower Court case arose when the Respondent tried to re-tarmac the road and was stopped by the Appellant who demanded payment under claim that the suit access road belonged to him since it was on the Appellant's certificate of title. Failure to reach an understanding made the Respondent file a suit in the lower Court. 45

50 The lower Court visited locus visit on 2 I 02I 2022. On Court record, it was noted as follows;

- That there existed the disputed access road measuring 14ft and both the Appellant and the Respondent bought their pieces of land from the same seller a one Hajjat Kibira. - That the access road runs from the main road towards the Respondent's house and touches the wall fence of the Appellant. a - That no rubbish was witnessed on the road. a

Court also noted that the sale agreement of the Appellant does not indicate the 36 decimals/ 14 feet from the se11er but instead the 1999 sales agreement shows a sale of the access road before the Appellant took possession in 2001.

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60 65 The evidence of the Hajat Kibira was taken, she testified as PW1 and stated that she sold the access road to the Respondent. The sketch map and attendance were taken. Court lastly observed that there is a pavement that had been constructed for a trench on the Appellant's side on part of land about 1 feet and 10 inch where the access road ends from the Respondent's land. The Appellant's wall was pouring dirty water on the access road where the Court sat.

In her judgment, the learned Chief Magistrate mentioned that while at locus, Court noted that the access road is purely a private road leading or giving access from the main Kulambiro ring to the home of the Respondent, whose gate is almost to opposite that of the Appellant and it cioses up to another last plot facing the Jinja Road Northern by-pass highway. The access road does not in any way join to the main public road as the Defendant indicates in part of his written submissions.

The learned Trial Magistrate after hearing both parties found in favor of the Respondent and declared that the adjudged access road measuring 14 feet does

not form part of the Appellant's land comprised in Block 216 plot 3 105 situated in Kulambiro- Kisaasi in Kampala. 75

She ordered for a permanent injunction to issue restraining the Appellant, his agents, servants, assignees, successors in title and tenants from littering and/or blocking the adjudged access road, awarded general damages and costs to the respondent as well.

The Appellant then filed this Appeal in this Court

# The Role of the Appellant Court

This being a first Appeal, this Court is under an obligation to re-hear the case by subjecting the evidence presented to the trial Court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. This duty is well explained in Father Nanensio Begumisa and three Others v. Eric Tiberasa SCCA l7of 2OOO [2004] KALR 236 as thus;

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"It is a well-settled pinciple that on a first appeal, the parties are entitled to obtain from tlrc appeal court its own decision on issues of fact as well as of lau. Although

in a case of conflicting euidence the appeal court has to make due allowance for tLte fact that it has neither seen nor heard the uitnesses, it must ueigh the conflicting euidence ond dra u.t its oun inference and conclusions."

The parties are entitled to obtain from the Appeal Court its own decision on issues of fact as well as of law [See PandAa u. R [1957] EA. 336. It is incumbent on this Court therefore to weigh the conflicting evidence and draw its own

- inferences and conclusions in order to come to its own decision on issues of fact as well as of law and remembering to make due allowance for the fact that it has neither seen nor heard the witnesses. - 100 The Appellate Court is confined to the evidence on record. Accordingly, the view of the trial court as to where credibility lies is entitled to great weight. However, the Appellate Court may interfere with a finding of fact if the trial Court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.

# 105 Burden and Standard ofproof

The burden of proof is upon the Plaintiffs to prove their case on a balance of probabilities. Section 1O1, 1O2 and 1O3 of the Euidence Acl provide that he who asserts a fact must prove it. Whoever desires any court to give the judgment as to any legal rights or liability dependent on the existence of the fact which he or she asserts must prove that fact exists.

The Court has to be satisfied that the Plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that, the more probable conclusion is that for which the Plaintiff contends, since the standards of proof is on the balance of probabilities /preponderance of evidence (see Loncaster Vs

11s Blocktuell Collieru Co. Ltd 1982 WC Rep 345 and SebulibaVs Cooperatiue Bank Ltd 11982) HCB130)

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The cardinal principle in civil cases is embedded under Seclion 101(1) of the Euidence Act that whosoever desires any court to give judgment as to any iegal right or liability dependent on the existence of facts which he or she asserts must

720 prove that those facts are in existence. It is further a cardinal principle of 1aw that in civil suits all evidence is proved on a balance of probabilitie s. See the cases of Miller V Minister of Pensions [19471 2 All. E. R 372 and Katumba V Kenua Ainaaus, Ciuil Appeal 9 of 2OO8 6CU)

1,25 Court is not bound necessarily to follow the trial Magistrate's findings of fact if it appears either that the lower Court clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanor of a witness is inconsistent with the evidence in the case generally.

Counsel filed written submissions that I have carefullv considered

130 I will go on to resolve the grounds as raised by the Appellant concurrently since they revolve around the same issue.

Analytically, all the three grounds rotate around ownership/entitlement of the suit access road and resolving ownerships culminates all else.

135 The Appellant's Counsel submitted that the Appellant purchased his land inclusive ofthe said access road from the then registered proprietor Hajjat Kibira measuring approximately O.la7 hectares and was part of Block 216 though later subdivided into two plots [3104 and 3105] with the Appellant registering 3105 under his names inclusive of the said access road.

Counsel quoted PW1-Hajjat Kibira who stated in her statement that initially, the land she occupied was family iand until 2O0 1 when she gained sole proprietorship implying that she couldn't have given the respondent a better title in 1999 than what she had I t}:e Nemo dat quod non habet principle]. That meant that the sale of 1999 was uoid ab nitio. r40

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In response, the Respondent's Counsel submitted that the Respondent bought

- L45 the access road from PWl in 1999 from her land i.e Block 216 plot 9O0 before being subdivided into plot 3104 and 3105 as for 3105 to be purchased by the Appellant. That the Respondent then used the access road until 2002 when PW1 sold her land to the Appellant and when given the title to subdivide off his part. That the Appellant included the access road on his tit1e. That efforts to revamp - the access road by the Respondent became futile when the Appellant claimed that the road was his uniess the Respondent paid for it. This disagreement caused the Respondent to file the suit in the lower Court. 150

Looking at the evidence, PW1 testified that she sold land to both the parties. That she sold it to him at 25O,OOO|= measuring 14 feet and the Respondent tarmacked it. [sa1e agreement was exhibited]. That she then later met the Appellant in 200land when selling him the land, they moved along with the area chairman and Appellant's lawyer to ascertain the boundaries and that the suit access road was on the eastern side of the Appellant's 1and. That the Appellant developed his portion leaving the Respondent's access road untouched and

160 intact as a boundary.

I found this to be a reliable witness since she finally confirmed that the suit access road was not part of the portion ofher land that she sold to the Appellant even though it wasn't subdivided from the mother tit1e.

16s I am also persuaded by the saie agreement of 5e April 1999. lt did clearly state that the se11er was selling part of her land embedded on plot 9OO measuring 14 feet from Kulambiro main road up to the Respondent's house.

In her testimony, PWl who sold to both parties admits that in selling off her plot 9O0 after subdivision, she forgot to cut the access road she had sold to the Respondent.

1,70 As earlier noted, when court visited locus, it put on record that the suit access road led to specifically the Respondent's home and not any further and it had

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been in existence for some time because even the tarmac was wearing out. This makes the evidence of the Respondent credible.

Counsel for the Appellant in his submission pointed this court to look at the fact that he owns a title which the seller got only in 2O01 after she had sold kibanja interest in the access road to the Respondent meaning he owned the proprietorship of the access road and the respondent can't claim the same. t75

I find this farfetched just like the Respondent can at this point reiterate with adverse possession that since 1999 to 2O2O when the lower Court suit came up he had enjoyed quiet possession on the Appellant's land so the latter cannot claim otherwise? I will not dwell much on that.

- This Court cannot ignore the existence of a valid land sale agreement between PW1 and PW2 concerning the access road which the Appellant did not either dispute or challenge successfully. PW1 admitted in Court that not cutting off the Respondent's access road from her portion before selling to the Appellant - was an oversight.

190 Counsel for the Appellant in referring to the principal of Nemo dat quod non habet submitted that it can be inferred from the evidence of PW1 that by 1999 PWl did not have capacity to sale the land on plot 9OO to the Respondent because the land constituted family 1and. That PWl attained sole proprietorship of the said; iand in 2OO1 and it was the time that she had legal capacity to pass on interest to another person which she subsequently did when she passed the land to the Appeliant therefore the sale ofthe access road to the Respondent was void ab initio because PW1 did not pass on any legal interest to the Respondent

195 as regards the access road.

The Respondent in his submissions submitted that PW 1 Farida Semakula Kibira's name appears on the suit land's mother title PEXS as the third last registered proprietor having been entered on the register on the 9/1111995 therefore it cannot be said that she did not own the suit land at the time she sold 200 to the Respondent.

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The Respondent further submitted that Faridah Semakula Kibira was the owner of the suit land having inherited it from her father together with her siblings. The Respondent in his testimony stated that PW1's other siblings who appear on the mother title as tenants in common were aware of the sale of the access road to him and have never raised any objection to the same. That PW1 had authority to sell the suit access road.

I note that the Appellant did not raise the issue as to whether the Respondent got a good title to the access road or not in the lower Court. The principle of Nemo dat quod non habet [No one gives who possess not] appears to be an

210 afterthought. In other words, a transferor cannot give a better title to property than he or she possesses. Appellant contends that the Respondent did not attain good title to the access road from Faridah Semakula Kibira.

I am not persuaded by this argument especially since the evidence is clear that PW1 rightfully sold the access road to the Respondent.

It is my conclusion that the lower Court rightfully found the case in favor of the 215 Respondent.

Therefore this Appeal is disallowed. All grounds of Appeal have no merit. The judgment of the lower Court is upheld.

Since the parties are neighbors and this dispute have been pending for so long, 220 I am reluctant to award costs so as to repair the relationship between the parties. Hopefully this matter will end here.

I so order

Elizabeth Jane Alividza

225 Judge

24th August 2023

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