Nyambubi v Bigirwenkya (Civil Appeal 22 of 2023) [2025] UGHC 85 (17 January 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL APPEAL NO. 22 OF 2023

(Arising From Buliisa Chief Magistrate's Court, LD-C. S No.06 of 2023)

#### MANGADALENA NYAMBUBI :::::::::::::::::::::::::::::::::::

#### **VERSUS**

### JUMA BIGIRWENKYA ::::::::::::::::::::::::::::::::::::

[Appeal from the Judgment and decree of H/W Atamba Aggrey, Ag. Senior Magistrate Grade One, Buliisa dated 26/4/20131

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

### **JUDGMENT**

## **Background**

- $[1]$ the Respondent/plaintiff's claim $\ln$ the lower court. against the Appellant/defendant was for inter alia, a declaration of ownership of land measuring approx.42 x 32ft situated at Katodio village in Buliisa District (the suit land), land grabbing and trespass. It was the Respondent's case that he is the lawful/rightful owner of the suit land he acquired by way of inheritance from his father, the late Nyarwana Bisula who also acquired the same by way of first occupation many years ago. - $[2]$ The Respondent contended that in 2008 to 2013, he litigated with the Appellant's late brother a one Kwanke Suge and the matter was settled by consent and a consent judgment was accordingly entered in respect of the same piece of land. According to the consent judgment, the land was to be divided to 3 families; the **plaintiff's family** being in between the family of Suge in the North west and Kato's family in South east and in the West of Ndandamire village. - $[3]$ The Respondent/plaintiff therefore further contended that the further

grabbing of land by the Appellant/defendant amounted to trespass.

- The Appellant/defendant on the other hand denied the Respondent/plaintiff's $[4]$ claims and contended that she is the rightful owner of the suit land inherited from his father the late Suge Mukula who also acquired it by way of first occupation where they as a family have houses and graves of their beloved ones. - $[5]$ The learned trial Magistrate found that the Respondent/plaintiff proved that he had possession over the suit land comprised of his semi-permanent house and hut as further confirmed by his findings on locus. He relied on the authority of Boiti Bony Vs Imalingat Lawrence CACA No.239 of 2016 where it was held that possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others against anyone who cannot show a prior and therefore a better right to possession. As a result, the trial Magistrate concluded that the Respondent was the rightful owner of the suit land and the Appellant as a trespasser. - The Appellant was dissatisfied with the trial Magistrate's decision and orders $[6]$ and lodged the instant appeal on the following grounds; - 1. The learned trial Magistrate erred in law and fact when he held that the plaintiff is the rightful owner of the suit land situate at Katodio village, Ndandamire parish, Wanseko Town Council, Buliisa District measuring approximately $1.5$ acres. - 2. The learned trial Magistrate erred in law and fact when he held that the defendant is a trespasser on the suit land. - 3. The learned trial Magistrate erred in law when he held that the suit land does not form part of the estate of the late Suge, occasioning a miscarriage of justice.

## **Duty of the Appellate Court**

$[7]$ It is trite that the duty of the 1st Appellate court as the present one is to subject the evidence to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it. In so doing, however, the court has to bear in mind that it did not see or hear the witnesses testify and should therefore make allowances in that respect, Selle Vs Associated Motor Boat Co. [1968] EA 123.

$[8]$ In this appeal, this court shall consider **grounds 1&3** of the appeal together for both revolve around how the trial Magistrate evaluated the evidence before him to find that the Respondent/plaintiff was the rightful owner of the suit land and **ground 2** separately.

# Grounds 1&3: Evaluation of Evidence

- Counsel for the Appellant, Mr. Joachim Mutyaba submitted that the trial $[9]$ Magistrate held that the Respondent/plaintiff was the lawful owner of the suit land measuring **approx.1.5** acres yet in the pleadings, the Respondent claimed land measuring 42 $\times$ 32 ft. That the Respondent/plaintiff therefore departed from his pleadings contravening **O.6 r.7 CPR** when he adduced evidence that the suit land is 1.5 acres. That there was no evidence presented at locus that the suit land belongs to the Respondent/plaintiff. That at locus, the Respondent/plaintiff testified that the Appellant/defendant entered the suit land in 2008 but he decided to institute a case against the family of the defendant a one **Kwanke Suge** with whom he later signed a consent judgment (P. Exh.1). That the Appellant was not bound by the said judgment and that since the Respondent/plaintiff learnt of the trespass in 2008 when the Appellant planted acacia trees, the Respondent's suit is barred by Ss.5 & 6 of the Limitation Act which prohibit recovery of the land after a period of 12 years. - [10] Counsel for the Respondents Mr. Daniel Omara on the other hand submitted that there was no departure by the Respondent either in his pleadings or evidence in court as regards the size of the suit land which the trial Magistrate by error stated to be $1.5$ acres and $42 \times 32$ ft as was in the pleadings and evidence in court respectively. - $[11]$ On whether the suit land formed part of the estate of the late **Suge**, father to the Appellant/defendant, counsel submitted that the trial Magistrate rightly found and held that the suit land belonged to the Respondent as found at locus where the features referred to by the Appellant/defendant as proof of possession of the suit land were outside the suit land. - [12] In his bid to prove his case, the Respondent/plaintiff testified briefly, that the Appellant/defendant is his neighbour who is trespassing on his land which he

- inherited from his late father a one Nyarwana upon his demise in 1993. The plaintiff testified further that his late father acquired the land by 1st occupation in 1967 and upon his demise, the land was left with his sister a one Ojiki but on his return in 2008, when he tried to utilize the land, the brother of the Appellant/defendant a one **Kwanke** denied him access to the land. When he took him to court, in 2008, they reached a reconciliatory settlement and by a consent judgment (P. Exh.1), the land was demarcated in favour of 3 families, that of the **Respondent/plaintiff**, **Suge** and **Kato**. That it was when **Kwanke** (brother of the Appellant/defendant) died that the Appellant/defendant started trespassing on his land denying him access and development of the land. - [13] According to **Balijunaki Julius** (PW2) and **Kiiza Ivan** (PW3), the present L. C1 chairperson of the area and a neighbour to the suit land, the Respondent/plaintiff's father had a home comprising of a kraal of cattle and gardens on the suit land. That the Respondent/plaintiff's father Nyarwana fell sick and left his daughter **Ojiki** on the suit land as he sought treatment from Masindi where he died from. That during the time the children of **Nyarwana** were in Masindi attending to his father, the Appellant/defendant children planted acacia trees and built on Nyarwana's land. Upon his return, the Respondent/plaintiff attempted to utilize the land but was stopped by Kwanke Suge, brother to the Appellant/defendant denying him access to the land. The matter was reported to PW2, the then L. C1 chairperson and then later to court where a consent judgment was entered on $16/4/2013$ . It was after the death of Kwanke Suge that the defendant and her children trespassed on the Respondent/plaintiff's land by cultivating it and stopping the Respondent/plaintiff from using the same. - $\begin{bmatrix} . & . \\ . & . \end{bmatrix}$ According to the Appellant/defendant and his witnesses; **Angeyi Angelina** (DW2) and **Tereza Akumu** (DW3) who are Auntie and sister to the Respondent respectively, testified that the suit land is for the **Suge** family and they are in possession of the land by virtue of their houses, acacia trees, and graves of their beloved ones. That the Respondent/plaintiff has no house on the suit land. - [15] However, upon locus visit by the trial Magistrate, it was clear that the consent judgment arising from C. S No.14 of 2008 between the Respondent/plaintiff and **Kwanke Suge**, brother to the Appellant/defendant and heir to the family

- of **Suge** dated $16/4/2013$ settled boundary disputes of the parties (P. Exhs.1&2). It is upon the settlement of the boundaries and death of Kwanke **Suge** that the Appellant/defendant came and started digging on the suit portion of land. It is that suit portion of land that was pleaded by the Respondent/plaintiff as measuring **approx.42x32ft.** - [19] It is also apparent that on locus, the respective parties showed court their respective owned lands as inherited from their respective parents and the Respondent/plaintiff was able to point or identify for court the portion trespassed on as having the Respondent's semi-permanent house and a hut and houses built by a one **Katurinde** whom the Respondent compensated on 23/3/2020 and vacated the land. In 2020, the Appellant/defendant despite the consent judgment which had settled the issue of boundaries the Appellant and her children planted acacia trees again on the land and cleared the bush thereon. - [20] On the other hand, the Appellant/defendant was not able, apart from the impugned acacia trees, to show court either the alleged burial grounds of the family or any house on the disputed $42 \times 32$ ft portion of land as she pleaded and as she and her witnesses alleged in evidence while testifying in court. - [21] As a result of the above, I do find that it is not true as counsel for the Appellant submitted that the Respondent's cause of action arose in 2008 when the Appellant's children first planted acacia trees on the north side of the land. The Respondent's grievance in 2008 was settled by the consent judgment (P. Exhs.1&2) which finally adjudicated upon the boundaries of the parties' respective lands i.e. the families of **Nyarwana** (Respondent), **Suge** and **Kato**. The consent judgment bound the Appellant/defendant because she is the daughter of **Suge** and therefore part of the family affected by the consent judgment. - [22] It cannot also be said that the Respondent/plaintiff's cause of action started running in 2008 when the Appellant's children first planted acacia trees on the north side of the suit land as counsel for the Appellant submitted. The grievances of the Respondent/plaintiff were settled by way of a consent in action of 2008. - [23] It is the Respondent/plaintiff's grievance of 2020 when the Appellant's

- children started again planting acacia trees and clearing the bush in defiance of the consent judgment that constitute the present Respondent/plaintiff's cause of action against the Appellant/defendant. The present suit was filed on 8/11/2020 and therefore, Ss. 5 & 6 of the Limitation Act do not apply to it. It is not time barred as it was filed within time. - [24] It is also not correct as submitted by counsel for the Appellant/defendant that the Respondent/plaintiff in his evidence departed from his pleadings in contravention of **O.6 r.7 CPR**. There is no evidence on record to the effect that the Respondent/plaintiff in evidence referred to any other size of the disputed portion of land other than that pleaded by both parties i.e, 42 x 32ft. - The reference to **1.5** acres by the trial Magistrate in his judgment must have $[25]$ been made in error as counsel for the Respondent submitted or he must have been referring to the entire land of the Respondent which include the 42 $x$ **32ft** in contest as was shown to him at locus. So, the error of referring to the suit land as measuring 1.5 acres or decreeing it to the Respondent/plaintiff did not occasion any miscarriage of justice since as found at locus, it comprised the Respondent's land and the disputed home that comprised the contested portion of 42 x 32ft. - In conclusion, I find that as rightly found by the trial Magistrate on locus, no $[26]$ graves and houses of the Appellant/defendant were found on the suit portion of land or the entire land of the Respondent/plaintiff at that as the Appellant/defendant and her witnesses alleged during their respective testimonies in court. In the premises, I find that the Respondent/plaintiff presented evidence of better possessory rights over the Appellant. I find that the trial Magistrate therefore, did not error in law and fact when he held that the Respondent was the rightful owner of the suit land because the land did not form part of the estate of the late Suge. Grounds 1&3 accordingly fail.

## Ground 2: The learned trial Magistrate erred in law and fact when he held that the defendant is a trespasser on the suit land.

having found the Magistrate [27] This court trial did that $as$ the Respondent/plaintiff was the rightful owner of the suit portion of land by virtue of his possessory rights, the defendant's acts on the suit land, to wit, the planting of acacia trees and clearing of the suit portion of land without the

- Respondent's consent which acts were not denied by the Appellant/defendant - amounted to trespass within the meaning in Justine Lutaaya Vs Sterling Civil - Engineering Co. Ltd, SCCA No.11 of 2002 which defined trespass as follows; "Trespass to land occurs when a person makes un authorized entry upon land, and thereby interferes or portends to interfere with another person's lawful possession of that land." - [28] In the premises, I find that the trial Magistrate was right and justified to find that the Respondent/plaintiff was in possession of the suit land thus established his possessory title over the same and the Appellant/defendant who recently entered the suit land in 2020 defying the boundary Consent settlement of the families concerned without the Respondent's consent and authority was a trespasser. The $2^{nd}$ ground of the appeal also accordingly fails. - [29] In conclusion, the appeal is found to have no merit. The judgment and decree of the learned trial Magistrate are upheld and therefore, the appeal is accordingly dismissed with costs to the Respondent.

Dated this 17th day of January, 2025.

Byaruhanga Jesse Rugyema JUDGE