Nyakojo and 5 Others v Musaija and 4 Others (Civil Appeal 355 of 2021) [2024] UGCA 130 (22 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 355 OF 2021

(Coram: Cheborion, Mugenyi and Gashirabake, JJA)

# 1. NYAKOJO CHARLES

#### 2. BALINDA YOFESI 10

### 3. ASABA CHRISTOPHER

- 4. KATO DERRICK - 5. ISINGOMA DAN - 6. BYARUHANGA CLOVIS::::::::::::::::::::::::::::::::::::

# **VERSUS**

- 1. YAVERI MUSAIJA - 2. MATAMA ADREDA - 3. REGINA KEMBABAZI - 4. KABAHWEZI ENID

#### 5. KEMBABAZI MARGARET:::::::::::::::::::::::::::::::::::: 20

(Appeal from the decision of the High Court of Uganda at Fort Portal (E. J. Alividza, J.) in Civil Appeal No. 025 of 2019 dated 18th September, 2020.)

### **JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA**

This appeal is against the judgment and decree of the High Court before the Hon. Justice Elizabeth Alividza, in Civil Appeal No. 025 of 2019 dated 18th September, 25 2020.

### **Background**

The $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ Respondents jointly with the $1^{st}$ Respondent's predecessor (originally the plaintiffs) instituted a suit in the Chief Magistrate's Court at Fort Portal against the appellants (originally the defendants) for a declaration that the

30 latter were trespassers on a certain parcel of land situated at Nyakagongo -Mukonomura in Fort Portal Municipality, Kabalore District, general damages, mesne profits, and a permanent injunction.

$\mathsf{S}$

$\overline{ }$

The Respondents' case was that they were sisters and biological daughters of the $\mathsf{S}$ late Dan Katuramu, the former owner of the suit land. The late Katuramu had been in possession of the suit land for over 50 years before his death having inherited the land from his late father. The respondents claimed that the late Katuramu left a will bequeathing the land to them.

$\dddot{\phantom{a}}$

- The Respondents also claimed that the late Katuramu had, during his life time, 10 given a license on a small portion of his land to the late Asiimwe George, the father of 1st, 2nd, 3rd, 4th and 5th Appellants and that land's boundaries was clearly demarcated. The appellants adduced a deed evidencing this license. The late Asiimwe lived on that land until his death whereupon he bequeathed the land to the defendants. - 15

It was further the case for the Respondents that the 1st to 5th appellants, subsequently, in about 2014, started to occupy part of the suit land beyond the portion given to the late Asiimwe as they felt that the land left by Asiimwe was not enough. The 1st to 5th Appellants went on the respondents' land and destroyed a

- tree plantation and crops thereon. The Appellants also put boundary marks 20 subdividing the land and created a share for themselves without the consent of the Respondents. Further, that they had resisted the $1^{st}$ to $5^{th}$ appellants' acts of trespass and still occupied the suit land although the defendants have sustained acts of violence against the Respondent' possession of the suit land. The Respondents also - averred that the appellants' late father Asiimwe did not claim the suit land in his 25 will, and neither did their late great grandfather Yofesi Wako who settled in a different area than that where the suit land is located. The late Wako left the suit land for the late Katuramu 50 years prior.

The 1st to 5th Appellants filed a Written Statement of Defence opposing the Respondents' suit and also filed a counter-claim for a declaration that the suit land 30 belonged to them and that the respondents were trespassers thereon, general damages and costs. The 1st to 5th Appellants' case was that the suit land was part of a big parcel of land once owned by their late great grandfather Isaya Kakende. Upon his death, the land went into possession of his widow and children who included the late Katuramu and the late Wako Yofesi, their grandfather, with each 35 taking a separate parcel of the land. The late Wako's share was inherited by the late Asiimwe, their father, and by them upon his demise.

After hearing the evidence, the trial Court before HW Namayanja, entered judgment in favour of the Respondents and granted a declaration that they were the lawful owners of the suit land, and a permanent injunction restraining the 40 Appellants and their agents from interfering with the suit land. The learned trial Magistrate also dismissed the appellants' counter-claim and awarded costs of the suit and the counter-claim to the respondents.

$\overline{2}$

The Appellants were dissatisfied and appealed to the High Court which dismissed $\mathsf{S}$ their appeal and upheld the judgment and orders of the Magistrate's Court.

The Appellants now bring this second appeal to this Court on the following grounds:

- That the learned appellate Judge erred in law when she failed to properly re- $(1)$ evaluate the evidence on record regarding appellants' ownership of the suit land hence coming to an erroneous decision hence occasioning a miscarriage of justice. - 2) That the learned appellate Judge erred in law when she ignored the inconsistencies and contradictions in the respondents' evidence hence causing a miscarriage of justice to the appellants. - That the learned appellate Judge erred in law when she held that the learned $3)$ trial Magistrate was right in finding that the late Yofesi Wako did not own the suit land in total disregard of the law of succession hence occasioning a *miscarriage of justice to the appellants.* - $4)$ That the learned appellate Judge erred in law when she held that the 20 distribution of the estate of the late Isaya was okay yet there was no one holding letters of administration hence occasioning a miscarriage of justice to the appellants. - That the learned appellate Judge erred in law when she held that the $6th$ $5)$ appellant was not entitled to costs as a matter of right hence occasioning a *miscarriage of justice to the appellant.*"

The appellants in this appeal pray for the following orders:

- $(1)$ The appeal be allowed. - $2)$ The respective decisions of the High Court and the Magistrate's Court be set aside. - The appellants be declared owners of the suit land and a permanent injunction $3)$ granted against the respondents. - $4)$ The respondents pay costs in this Court and in the Courts below."

The respondents opposed the appeal.

#### **Representation** 35

At the hearing of the appeal, Mr. Ndiwa Walukano Jerald appeared for the Appellants. Mr. Evaristo Tumwesigye appeared for the Respondents.

The respective counsel filed written submissions.

# **Analysis**

I have carefully studied the record, and considered the respective counsel's 40 submissions and the law and the authorities cited.

$\ddot{\phantom{a}}$

I note that this is a second appeal from a decision of the High Court, the original $\mathsf{S}$ trial having taken place before a Magistrate's Court. Therefore, Sections 72 and 74 of the Civil Procedure Act, Cap. 71 are applicable to the appeal. Section 72 provides as follows:

$\cdot$

$\ddot{\cdot}$

"72. Second appeal.

10 (1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that—

(a) the decision is contrary to law or to some usage having the force of law:

(b) the decision has failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits."

Section 74 provides as follows:

20 "74. Second appeal on no other grounds.

> Subject to section 73, no appeal to the Court of Appeal shall lie except the $on$ grounds mentioned in section 72."

With the above legal provisions in mind, I will now proceed to address the grounds of appeal.

#### **Ground One** 25

### **Appellants' submissions**

Counsel for the Appellants submitted that the High Court failed in its duty as first appellate Court to subject the evidence on record to fresh exhaustive scrutiny and draw its own conclusions. The High Court failed to establish that the respondents evidence was full of deliberate lies as to the ownership of the suit land. Counsel singled out the evidence of PW1 to PW7 who all lied that they did not know

Kakende Isaya, their own grandfather, who had originally owned the suit land and $\mathsf{S}$ who had bequeathed some of it to the Respondents' father. Counsel submitted that owing to the lies told by the plaintiffs' (now respondents) witness, the lower Courts ought to have disregarded their evidence and dismissed their case.

Counsel for the Appellants further submitted that the appellants' case was that they obtained an interest in the suit land as beneficiaries of the estate of their late 10 grandfather Kakende Isaya. Thus, the Respondents had a duty of adducing evidence to show that the suit land was not derived from the estate of the late Kakende. But they failed to do so. In those circumstances, counsel for the appellant submitted that the lower courts ought to have concluded that the Respondents failed to prove their case.

$\mathcal{L}$

Furthermore, counsel for the Appellants submitted that the Appellants proved the case in their counter-claim that they were the rightful owners of the suit land. They adduced evidence showing that the Appellants' father Wako was buried on the suit land, which was his father's land. Counsel referred to the evidence of DW2 and

- DW3 which supported the Appellants' case. DW2 testified that the suit land was $20$ part of land belonging to the children of Kakende, including the late Katuramu, but the latter had claimed the entire property as belonging to him. DW3 testified that the late Kakende had planted boundary marks of Bulamula trees on the suit land which showed that he owned the suit land. - Counsel concluded by praying that this Court allows ground 1. 25

# **Respondents' submissions**

Counsel for the respondents submitted that the High Court properly performed its duty as a first appellate Court and properly reappraised the evidence before reaching the correct conclusion that the Respondents were the rightful owners of the suit land. Counsel considered all the evidence which proved that the late 30 Katuramu owned the entirety of the suit land and that the late Wako's land in which the appellants claim an interest was separate from the suit land. Further, that even the late Asiimwe from whom the appellants claimed an interest settled on land which had been given to him on licence from the late Katuramu. The late Asiimwe had not, during his life time, claimed ownership of the suit land. Counsel

35 submitted that ground 1 ought to be disallowed.

# **Decision on ground One**

I have considered the respective counsel's submissions on ground 1. The underlying issue is who between appellants and Respondents were the rightful owners of the suit land. The learned trial Magistrate and the learned High Court 40 Judge on appeal made the same findings of fact, that the respondents were the lawful owners of the suit land. I am satisfied that there was evidence in support of

- these concurrent findings of fact that the Respondents were the rightful owners of 5 the suit land. This evidence indicates that shortly after their father, the late Dan Katuramu's death in 2005, the respondents went into possession of the suit land and were in possession undisturbed until about 2013, when the $1^{st}$ to $5^{th}$ appellants started claiming the suit land. - I note that the 1st to 5th Appellants claimed the suit land as beneficiaries of the 10 estate of their late grandfather the late Wako Yofesi, whom they claimed had also inherited the land from his father the late Isaya Kakende. However, I am satisfied with the High Court's conclusion that these claims were not supported by the evidence adduced. I also agree with the learned High Court Judge's observation - that DW1 Charles Nyakojo's evidence about the alleged ownership of the suit land 15 by Wako or Kakende was not credible since DW1 had not presented evidence to show when the said persons owned or distributed the land.

All in all, I find that the conclusions of the High Court were supported by the evidence on record. I am alive to the principle articulated by the Supreme Court in Kifamunte Henry vs. Uganda, Criminal Appeal No. 10 of 1997 quoting from R

20 vs. Mohammed Ali Hasham vs. R (1941) 8 EACA 93, that:

> "Once it has been established that there was some competent evidence to support a finding of fact, it is not open on second appeal to go into the sufficiency of that evidence or the reasonableness of the finding."

25 I would accordingly disallow ground 1.

# **Ground Two**

### **Appellants' submissions**

Counsel for the appellant faulted the High Court for overlooking certain major contradictions in the Respondents' evidence which went to the root of their case and ought to have led to rejection of their evidence. Counsel highlighted some 30 major inconsistencies in the evidence of PW1. First, PW1 contradicted herself by saying in parts of her evidence that she did not know her grandfather the late Kakende, yet in other parts she said that she knew him. Second, PW1's evidence contained contradiction, in some parts, saying that she had sold her share in the suit land while in other parts saying that she had never done so. Third, PW1 35 contradicted herself, saying in parts of her evidence that the respondents were bequeathed the suit land through their father (the late Katuramu's will) yet in other parts she said that the land had never been distributed to them. PW2 testified that

Counsel for the appellants submitted that the above highlighted contradictions 40 were major and went to the root of the Respondents' case and ought to have led to its rejection. Counsel prayed that ground 2 succeeds.

the land was bequeathed to the Respondents through their father's will.

#### $5$ **Respondents' submissions**

$\ddot{\cdot}$

Counsel for the respondent submitted that all the contradictions highlighted in the appellants' submissions were minor and did not go to the root of the Respondents' case. Further, that all the contradictions were considered and ignored by the High Court which rightly held that some of the contradictions arose due to the negligence of counsel in preparing the respective statements of the Respondents' witnesses. In regard to the contradiction as to whether the Respondents had sold some of the suit land, counsel submitted that there was no evidence to support that assertion, and further that in any case, the Appellants were not the buyers and therefore could not be prejudiced. Counsel prayed that ground 2 be disallowed.

#### **Decision on ground Two** 15

I have carefully considered the respective counsel's submissions on ground 2. It is true that inconsistencies or contradictions in a party's case, if major, must be considered against the party but minor inconsistencies and contradictions will be ignored if they do not affect the main substance of a party's case. As observed earlier, the substance of the Respondents' case was that they were the rightful owners of the suit land of which they were in possession from 2005 to 2013 having inherited it from their late father Dan Katuramu. Further, that the 1st to 5th Appellants had trespassed on the suit land beginning from about 2013.

The contradictions that counsel for the appellants points out in his submissions on ground 2 related to: 1) whether or not PW1 contradicted herself by saying in parts 25 of her evidence that she did not know her grandfather the late Kakende, yet in other parts she said that she knew him; 2) whether or not PW1's evidence contained contradiction, in some parts, saying that she had sold her share in the suit land while in other parts saying that she had never done so; and 3) whether or not

PW1 contradicted herself, by saying in parts of her evidence that the Respondents 30 were bequeathed the suit land through their father (the late Katuramu's will) yet in other parts she said that the land had never been distributed to the plaintiffs. In my view, all these contradictions related to subsidiary matters that did not go to the substance of the Respondent's case, and I therefore agree with counsel for the respondents' submission to that effect. 35

I would accordingly disallow ground 2 of the appeal as well.

## **Ground Three**

### **Appellants' submissions**

Counsel for the appellants submitted that there was evidence that the late Wako Yofesi owned part of the suit land having derived an interest from his late father, 40 the late Kakende who owned the suit land. The late Kakende was the father to the late Wako (the 1st to 6th appellants' father) and the late Katuramu (the appellants' - 5 father). Both the late Wako and the late Katuramu were buried on the suit land. Counsel for the appellant submitted that the appellants were entitled to claim an interest in the suit land as beneficiaries of their late father Wako. Moreover, according to the evidence of DWl, the late Wako had once utilized the suit land and had planted eucalyptus trees, bananas, cassava and sweet potatoes thereon - although he subsequentty got involved in a dispute with his brother the late Katuramu and shifted from the suit land. Counsel submitted that the High Court failed in appreciating the evidence which should have led it to making the findings of fact in favour of the appellants. Counsel prayed that this Court also allows ground 3. 10

#### Respondents' submissions 15

Counsel for the respondents submitted that the issue in ground 3 is one of fact, and this renders the same incompetent as a ground in a second appeal to this Court. Counsel prayed that ground 3 be expunged from the record.

In the altemative, counsel contended that the High Court was alive to the overwhelming evidence and reached the correct conclusion that the Respondents were the rightful owners of the suit [and. Counsel submitted that ground 3 also be answered in the affirmative. 20

## Decision on ground Three

I have also considered the respective counsel' submissions on ground 3. This ground has been answered by my analysis on grounds I and 2. The appellants' assertion that the suit land belonged to the late Wako Yofesi and the late Isaya Kakende was not supported by any credible evidence. Ground 3 must also fail. 25

# Ground Four

## Appellant's submissions

In support of ground 4, counsel for the appellants submitted that the distribution of the suit land to the late Katuramu and that to the respondents was illegal for having been done without letters of administration yet the land belonged to a deceased person's estate. Counsel for the appellants cited the case of Maureen Tumusiime vs. Macario and Another 120061 HCB 127, where the Court, citing Section 180 of the Succession Act held that ownership of property of a deceased person vests into another after he/she had been appointed administrator or executor through letters of administration or probate. Counsel submitted that as no grant of letters of administration or probate had been made, the distribution of the suit land to the respondents and their predecessor in title was iltegal and ought to be set aside. Counsel submitted that ground 4 also be allowed. 30 40

# Respondent's submissions

- In reply, counsel for the respondents submitted that the late Katuramu bequeathed $\mathsf{S}$ the suit land to the Respondents in his will that was read out at his funeral. Thereafter, no person claimed an adverse interest against the plaintiffs. Counsel further submitted that the appellant's submission about a requirement to obtain a grant of letters of administration or probate was misconceived and shows that the appellants were on a fishing expedition. Counsel prayed that the Court answers - 10 ground 4 in the negative.

# **Decision on ground Four**

$\ddot{\phantom{a}}$

I have considered the submissions on ground 4. Counsel for the appellants submitted that the distribution of the land to the respondents was illegal for contravening Section 180 of the Succession Act, Cap. 162. Section 180 provides 15 as follows:

"180. Character and property of executor or administrator.

The executor or administrator, as the case may be, of a deceased person is his or her legal representative for all purposes, and all the property of the deceased person vests in him or her as such."

The contention of counsel for the appellants is that whereas the respondents claimed to have inherited the suit land from the late Katuramu by will, no executor has ever been appointed for purposes of distributing the late Katuramu's estate. This point has been raised rather belatedly in this Court, as it was not raised in

either of the two lower Courts. I also note that the dispute between the parties 25 relates to trespass and not succession. In any case, the appellants are not beneficiaries of the late Katuramu's estate and therefore can suffer no prejudice due to any issues in the distribution of his estate.

I would also disallow ground 5.

#### **Ground Five** 30

## **Appellants' submissions**

Counsel for the Appellants, in support of ground 5, submitted that the High Court erred when it failed to award costs to the 6th appellant who was wrongfully sued by the respondents. Counsel submitted that the 6th appellant was a Local Government

official who had immunity against suits arising from acts while exercising his 35 functions. Yet the respondents had sued him in connection with a dispute over ownership of the suit property causing him to incur significant costs in the litigation. In those circumstances, the 6th appellant should have been awarded costs in the public interest to restrain persons from instituting cases against public officers. Counsel submitted that the Court ought to also allow ground 5. 40

# **Respondent's submissions**

In reply to the submissions on ground 5, counsel for the Respondents submitted $\mathsf{S}$ that the High Court was right not to award costs to the 6th appellants because although the 6th appellant had become involved in the dispute while exercising his official functions, he had been guilty of engaging in dishonesty against the Respondents. Counsel prayed that ground 5 also be disallowed.

#### **Decision on ground Five** 10

I have considered the respective counsel's submissions on ground 5, which relates to whether or not the High Court erred in failing to grant costs to the $6th$ appellant. The 6th appellant got involved in the dispute between the appellants and the respondents, in his capacity as area Local Council One Chairperson, after allegedly

- receiving a complaint from the former that the latter were trespassing on the suit 15 land. He alleged that he heard evidence from all parties and after concluding that the appellants were entitled to part of the suit land, went thereon and planted boundary marks. These marks effectively permitted the appellants to settle on part of the suit land. - The lower Courts found that the $6th$ Appellant acted as a member of a Local 20 Council Court as established under the Local Council Courts Act, 2006, when he got involved in the dispute over the suit land. However, it is worth-noting that a Village LC1 Chairman cannot constitute himself as a Village Local Council Court. Under Section 4 (1) of the Local Council Courts Act, 2006 "the local council - court of a village or parish shall consist of all members of the executive committee 25 of the village or parish." In the present case, the 6th appellant constituted himself as a local council court, purportedly heard the complaint between the Appellants and the respondents, passed and executed his judgment in the matter. In my view, the 6th appellant's conduct was irregular and justified the Respondents' complaints - against him. I would accordingly uphold the High Court's discretion in not 30 awarding costs in the matter.

Ground 5 of the appeal also fails.

For all the above reasons, I would disallow all grounds and dismiss the appeal and grant costs here and in the Courts below to the Respondents against the $1^{st}$ , $2^{nd}$ , $3^{rd}$ , $4th$ and $5th$ appellant, jointly and severally.

Dated at Kampala this $\rightarrow$ day of $\mathcal{M}$ 2024. istopher Gashirabake Justice of Appeal

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THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Cheborion, Mugenyi & Gashirabake, JJA)

# CIVIL APPEAL NO. 355 OF 2021

![](0__page_10_Figure_5.jpeg)

3. REGINA KEMBABAZI

**................................. RESPONDENTS**

4. KABAHWEZA ENID 5. KEMBABAZI MARGARET

$\mathbf{1}$

# JUDGMENT OF MONICA K. MUGENYI, JA

I have had the benefit of reading in draft the lead Judgment of my brother, Christopher Gashirabake, JA in this matter.

I agree with the decision therein that the Appeal be dismissed for the reasons advanced.

Dated at Kampala tt is .\*?Ilav ot May,2o24.

. Monica K. Mugenyi Justice of Appeal

; This judgment was signed before this judge ceased to hold that office.

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO: 355 OF 2021

### (Coram: Cheborion, Mugenyi and Gashirabake, JJA)

## 1. NYAKOJO CHARLES

2. BALINDA YOSEFI

## 3. ASABA CHRISTOPHER

- 4. KATO DERRICK - 5. ISINGOMA DAN - 6. BYARUHANGA CLOVIS::::::::::::::::::::::::::::::::::::

$\overline{5}$

### **VERSUS**

- 1. YAVERI MUSAIJA - 2. MATAMA ADREDA - 3. REGINA KEMBABAZI 20 - 4. KABHWEZI ENID - 5. KEMBABAZI MARGARET::::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court holden at Fort Portal before Hon. Lady Justice E. J. Alivida) dated 18th day of September, 2202 in Civil Appeal No.

025 of $2019$ ) 25

## **JUDGMENT OF CHEBORION BARISHAKI, JA**

I have had the benefit of reading in the draft of Judgment of my brother Christopher Gashirabake, JA in this Appeal.

I agree with him that the Appeal ought to be dismissed with costs to the 30 Respondents in this Court and the Courts below.

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Since Monica K. Mugenyi JA also agrees, this Appeal is dismissed and the Appellants shall pay the costs in this court and in the courts below to the Respondents. 5

It is so ordered

10 Delivered at Kampala this .h .r +\* day of .2024

c borion Barishaki JUSTICE OF APPEAL

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