Osinya Zedex and Another v Ouma Francis Hasindi and Another (LD Civil Appeal No. 0009 of 2024) [2025] UGHC 427 (1 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO LD CIVIL APPEAL NO. 0009 OF 2024 [ARISING FROM BUSIA CIVIL SUIT NO. 53 OF 2014]**

| 1. | OSINYA ZEDEX | |----|-----------------------------------------------------------------------------------------------------------| | 2. | NIMROD BARASA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANTS | | | VERSUS | | 1. | OUMA FRANCIS HASINDI | | 2. | OGUTTU PATRICK::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS |

### **JUDGEMENT**

### **BEFORE: HON DR. JUSTICE HENRY I. KAWESA**

This is an appeal arising from the judgment and the orders of Susan Magistrate Grade I in Civil Suit 53 of 2014 delivered on 5th June 2023. The Appellant being dissatisfied with the judgment and orders of the lower Court appeals to this Court from the lower Court judgment on the following grounds;

- **1. The Trial Magistrate erred in law and in fact when she neglected to properly evaluate the evidence on record and held that the Suitland belongs to the first Respondent thereby reaching a wrong decision that has occasioned a total miscarriage of Justice** - **2. The Trial Magistrate erred in law and in fact when she ignored the contradictions in the Respondent evidence and thus reached a wrong decision.**

## 3. **The Trial Magistrate erred in law and in fact when she held that the Appellant's claim for trespass was time barred**.

The duty of this Court as a first Court of appeal is to re-evaluate all the evidence on record, bearing in mind that it did not have chance to observe the witnesses and then make its own decision thereon. The Court will evaluate the evidence and then resolve the grounds of appeal in the order that they were presented.

#### **Ground one**

The Trial Magistrate erred in law and in fact when she neglected to properly evaluate the evidence on record and held that the suitland belongs to the first Court thereby reaching a wrong decision that has occasioned a total miscarriage of Justice.

According to the evidence on record and the pleadings the Respondents case is that the Respondents are the sons of the late Michael Hangulu and the customary beneficial owners of land they inherited from their late father measuring approximately **35 Acres situated in Mumoli village, Buyengo Parish Dabani subcounty in Busia District**. It is the Respondent's case that the Defendants unlawfully trespassed into three acres of the suit land on 12th May 2012, when they unlawfully demarcated the land, planted boundary marks and took possession claiming that it was a portion of the land the 1 st Defendant acquired by purchase from the Respondents' father Mitchell Hangulu in the year 1980.

The Respondent contends that the 1st Defendant did not purchase the said portion of land from their father in the 1980 as alleged and that the 1st Defendant was only given a license to cultivate that portion of land by their father in 1980, but the license was terminated by him in 1994. Before he died, he had tried to repossess the land in vain. It was contended by the Respondents that after the death of their father they had written several letters to the first Defendant to vacate the Suitland but he ignored to do so and on the 12th of May 2012 while in the company of the 2nd Defendant the 1 st Defendant demarcated the land and planted boundary marks for the three acres constituting the suit land.

This position is contained in the pleadings in the plaint as supported by the evidence adduced through PW1; Osinya Zedex, PW2 Wabila Steven, PW3 Barasa Nimrod, PEXI, (agreement of 1980).

On the other hand, the defense case was that the Defendant acquired the suit land by way of purchase in the year 1980 from Michael Hangulu. The land was approximately 4 Acres and relied on the sale and purchase agreement between the Defendant and the Respondent's father dated 1st January 1980.

This is as per the defense pleadings vide WSD on file and evidence on record adduced by DWI Ouma Francis Hasindu and DEXI (sale agreement of 1980)., DW2 Oguttu Patrick. Counsel for the Appellant argued that the Magistrate contradicted herself in the judgment when she held that the Respondents evidence proves the case on a balance of probability since the property agreement of sale fell short of establishing a legally binding agreement, it having been found without signatures of the Defendant and family members or witnesses. She held that the agreement cannot be relied on as a valid agreement. No further arguments were raised about this particular ground save the above. In response though the Courts in their submissions raise the issue that the memorandum of appeal was served upon them way above the time frame required

by law under **Section 79 of the Civil Procedure Act**. This law requires an appeal to be entered within 30 days of the decree or order. It was pointed out that **Order 49 R 2 of the CPR** required service of the memorandum of appeal to be done within 15 days. It was pointed out that the Memorandum of Appeal was filed on 2015 April 2024 and served in October 2024 which was a period of about 7 months in violation of the mandatory legal requirement.

It should be noted however that this point was not responded to by the Appellant. However, the record does not indicate if what is alleged is true. There is no affidavit attached to in proof of service out of time. The Evidence Act under Sections 101 , 102, 103. requires whoever states a fact before Court to assume the burden to place evidence before Court to prove its existence. There being no such proof, this objection cannot be sustained.

#### I will now turn to the substance of ground 1

It was pointed out that the form and contents of this ground violates **Order 43 Rule 1 and 2 of the CPR**, which provides that:

*'the Memorandum of Appeal shall set forth concisely and under distinct heads the grounds of objection which shall be numbered'*

It was the contention of Counsel for the Respondent that ground 1 of this appeal is so general and broad and cannot be sustained and ought to be struck out.

I have looked at this ground and I am satisfied that it is generally a complaint about the Magistrate's alleged failure to properly evaluate and analyse the evidence thereby reaching a wrong decision which occasioned a miscarriage of Justice. The construction comes out precisely well and I find that the allegation that it is broad and vague is therefore misplaced. The Respondent's Counsel did not address the complaints raised under this ground save in terms of the objections referred to above.

I have however looked at the evidence on record and the Judgment of the Court and I do agree that there appears to be a semblance of a contradiction but when the Judgment is read as a whole from beginning to the end, it transpires that the same was an issue with the style of writing the Judgment which the Magistrate chose to adopt. This is illustrated from the fact that she chose to review the evidence and submissions at the same time thereby creating what appears to be a mix-up on the areas pointed out which gives the impression as if she was contradicting herself in terms of making the comment that the Respondents case is made out yet elsewhere she appears to be saying that it's not made out. This is not fatal because the Judgment shows that the Magistrate was attempting to incorporate the submissions in her judgment but got mixed up in the process of going through the evidence on record. This was however corrected in the process as she went ahead to restate the issues for determination in order to address her mind to the question whether the Respondents are the owners of the suit land and whether the Respondents are not barred by limitation.

It was her finding in the process of answering these two questions that a review of the evidence indicated that Respondents did not adduce any evidence to prove that their father gave the land to the 1st Defendant to use for cultivation temporarily, apart from the letters which she found lacking. She went on the to examine these letters on pages 15 and 16 of her judgment and found that the land sale agreement speaks for itself; that 1st Defendant indeed purchased the suit land from the

Respondents father. She also made reference to the observations at the *locus in qou* to beef up her findings in order to come to the conclusion that the Respondents failed to prove the case by evidence, wherefore she made the finding that the land belongs to the 1st Defendant.

I have gone through the evidence on record and I do not find any reason to interfere with this finding. I do agree with the Magistrate that the standard of proof is that the Respondent has to prove the case on the balance of probability which, they failed to do in as far as ownership of the suit land is concerned.

Secondly the Magistrate considered the question as to whether the Respondents are not barred by limitation under **Section 5 of the limitation Act**. The Act provides that:

"*No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person*"

In her judgment the Magistrate found that the Respondents alleged that they first wrote to the 1 st Defendant to stop cultivating the land in 1994 and the suit was instituted in 2014. She argued that from 1994 to 2014 is a period of 20 years. She pointed out that by the time the Respondents filed the suit they were already barred by limitation even if they had a genuine claim, she pointed out that they did not plead any disability and therefore she pointed out that this suit was time barred by limitation, I have examined the record and agree with the above findings. There is no merit in the arguments raised by the Appellant in this ground, it accordingly fails.

**Grounds 2 and 3**

- 2. **The Trial Magistrate erred in law and in fact when she ignored the contradictions in the Court evidence and thus reached a wrong decision.** - **3. The Trial Magistrate erred in law and in fact when she held that the Appellant's claim for trespass was time barred**.

I will consider these grounds together as they are related and they also depend on findings under ground 1

It was argued by Counsel for the Appellants underground 3 that the suit is premised on trespass which is a continuous *tort* and therefore cannot be a subject of limitation (Factions since each act of trespass is a fresh interference with the land). Trespass to land occurs when a person directly enters upon another's land without permission or other lawful cause and remains upon the land, places or projects any object upon the land and thereby interferes, or portends to interfere, with another person's lawful possession of that land. (*see Justine E. M. N. Lutaaya v. Sterling Civil Engineering Company, S. C.*

#### *Civil Appeal No. Il of2002*)

It is trite law that trespass to land is a possessory based tort, where if remedies are to be awarded the Respondent must prove possession of interest in the land. It is the right of the owner in possession to exclusive possession that is protected by an action for trespass. Such possession should be actual and this requires the Respondent to demonstrate his or her exclusive possession and control of the land. The entry by the Defendant unto the Plaintiff's land must be unauthorized. The Defendant should not have had any right to enter into the Respondents land. An action for trespass to land is for enforcement of possessory rights rather than proprietary rights. (**See**

## **Solomon and Houston on the Law of Torts 19th Edition (London: Sweet and Maxwell, (1987) 46)**

According to the plaint, the Respondent's claim against the Defendant is for damages for trespass and vacant position arising from a claim that the Defendants without authority and consent trespassed on the Respondents parcel of land. On the other hand, in the written statement or defense it was pleaded that the 1st Defendant has been in undisturbed and uninterrupted possession, ownership and use of the land in dispute for a period spanning to 35 years to date and the allegations of trespass is not within their sound knowledge. This pleading setup the case of the Respondent as against that of the Defendant. The Respondent thereby assumed the duty to prove possession in order to establish a cause of action in trespass.

Upon going through the evidence on record and having looked at the Judgment of the lower Court, it has been established that the lower Court found that the Respondent failed to prove ownership of the land and the pleadings and evidence on record shows that it is the 1st Defendant who was in possession of the land as at the time the suit was instituted in Court. The element of possession therefore was never proved in the Court and cannot be set up as a bar against the law of limitation.

I am therefore in agreement with the position taken by the lower Court that the evidence on record indicates that by the time this suit was brought to Court it was already caught up by the law of limitation of actions. There is no merit in ail the grounds of appeal as set up in this case.

It is therefore the finding of this Court on appeal that the Appellants have failed to prove the appeal on each and every ground. The appeal fails on each ground. It is dismissed with costs to the Courts.

I so order

…………………………… Dr. Henry I. Kawesa **JUDGE** 11/04/2025

Delivered this . day.. 2025 In the presence of I