Peter Wakhatenge and Another v National Water and Sewerage Corporation (Civil Appeal No. 0033 of 2014) [2022] UGHC 156 (12 September 2022)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT MBALE**

**CIVIL APPEAL NO. 0033 OF 2014**

**ARISING FROM CIVIL SUIT NO. 42 OF 2008**

1. **PETER WAKHATENGE** 2. **JUMA KURANGA ::::::::::::::::::::::::::::::::::::::::: APPELLANTS** 3. **SIRAJI ADAM MASABA**

**VERSUS**

**NATIONAL WATER AND SEWERAGE CORPORATION :::::::::::: RESPONDENT**

**BEFORE THE HON. JUSTICE SUSAN OKALANY**

**JUDGMENT**

1. This is an appeal arising from the judgment of His Worship Singiza Douglas, Magistrate Grade (as he then was), delivered on 12th February 2014, seeking for orders that: 2. The decision/orders of the trial magistrate in the lower court be set aside; 3. Judgment is entered in favour of the appellants; and 4. Costs of the appeal and in the lower court be provided for. 5. The grounds of the appeal are that: 6. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record and thereby reached an erroneous decision against the appellants; 7. The learned trial magistrate erred in law and fact when he failed to find that the respondent had trespassed on the appellants’ land; 8. The learned trial magistrate erred in law and fact when he failed to find that the appellants are the bonafide occupants of the land in dispute; and 9. The decision of the trial magistrate has occasioned a miscarriage of justice.

**BACKGROUND**

1. The appellants/plaintiffs instituted a suit in the lower court against the respondent/defendant, seeking for a permanent injunction to restrain the respondent, its agents and/or servants from encroachment, intimidation, harassment, interruption of their peaceful use and quiet enjoyment of the suit land, general damages, costs of the suit and interest on the general damages from the date of judgment, until payment in full and any other relief the court would deem fit. 2. The 1st, 2nd and 3rd appellants claimed that they were the customary owners of the suit land situated in Isebelle Cell, Mooni Ward, Wanale Division in Mbale Municipality, having inherited it from their fathers, Geresom Nasasa, Matanda and Adam Masaba respectively. The said land bordered the fenced-off land of the respondent. The appellants were growing seasonal crops on it. They also claimed that the grave of the 1st appellant’s grandfather is on the suit land. 3. It was their further claim that in the 1950s, the respondent acquired a piece of land located in the said Mooni Ward, next to the appellants' ancestral land and subsequently installed water tanks on its land. However, the respondent encroached on their ancestral land and forcibly fenced off their land while installing new water tanks on its land in the 1970s, despite their protests. 4. They accused the respondent and its agents of harassing and intimidating them and their families and of preventing them from using the suit land in 2000, thus disrupting their quiet possession of the suit land. They stated that the respondent's actions made their lives hard, since they no longer use their land for self-sustenance, despite owning it. 5. They asserted that their constitutional rights to shelter and life have been infringed on, causing them to suffer loss and damages. According to them, the respondent has no right to evict them from their land as they are bonafide customary owners, duly protected by ***Article 237 (3) (a) and 8 of the Constitution of the Republic of Uganda.*** 6. On its part, the respondent denied the allegations made against it by the appellants and averred that it is the registered proprietor of the suit land and the appellants’ continuous acts of encroachment on it amount to acts of trespass. In the alternative and without prejudice, the respondent averred that the appellants’ actions are barred by limitation and undertook to move the court to strike it out. The respondent claimed that the appellants were not bonafide customary owners and are therefore not protected under the provisions of ***Article 237 (3) (a) and 8 of the Constitution of Uganda***. 7. During the hearing, Peter Wakhatenga (1st appellant) testified as PW1, Siraji Masaba (3rd appellant) was PW2, Juma Kuranga (2nd appellant) was PW3, Wafidi Safiyi was PW4, while the respondent’s witnesses were Eric Nyanga (DW1), Bernard Ochaya (DW2) and Edith Kateete (DW3). 8. The following issues were framed for determination by the court: 9. Whether the plaintiffs enjoy any right to the suit land; 10. Whether the plaintiffs’ rights have been infringed; and 11. Whether the defendant is liable. 12. During his resolution of the 1st issue, the trial magistrate followed the decision in ***Kampala District Land Board and Another versus Venansio Babweyaka and Others (Civil Appeal No. 2 of 2007),*** where it was held that in respect of urban areas, customary land holding does not automatically exist, unless there was prior permission from the former controlling authority as provided for by the repealed ***Section 24 of the Public Land Act 1969 and Section 5(1) of the Land Reform Decree 1975.*** The trial magistrate found that the appellants could not be the customary owners of the suit land without the permission of the Mbale Municipal Council as the urban controlling authority. He found that there was little evidence to support the appellants’ assertion that they were customary owners of the suit land. Consequently, the appellants’ claim of customary ownership of the suit land failed. 13. As to whether the appellants were bonafide occupants of the suit land, the trial magistrate held that since the respondent’s ownership of the land dated back to 1935, the appellants’ claim could not be supported, because they had not shown that their occupancy of the land had remained unchallenged for a period of 12 years prior to 1998, when the Land Act was enacted. The trial magistrate relied on the respondent’s evidence that there was a perimeter fence on the suit land, which had been damaged by the appellants and which fact he confirmed during his visit to locus in quo, to find that the respondent was the owner of the suit land. 14. The trial magistrate also opined that the respondent had obtained a lease offer for the suit land from Mbale Town Council in 1994 and later obtained a land title in 2004. He believed that the evidence adduced in court pointed to the fact that the respondent was the registered proprietor of the suit land that was originally owned by the Directorate of Water Development. It was his further finding at locus in quo that the respondent’s water tanks and other infrastructural developments did exist on the suit land. 15. The court also believed that the appellants had encroached on the suit land in 1999, a year after the enactment of the Land Act as amended and therefore, their occupation of it was not in good faith and concluded that the appellants did not enjoy any legal rights to the suit property. 16. On the question of limitation, the trial magistrate held that it would be moot to consider it, since the appellants’ claim was not sustained by the evidence on record. 17. Concerning the 2nd and 3rd issues, the trial magistrate found that these failed, due to his findings on the first issue. He dismissed the suit and declined to make any orders as to costs as in his opinion, the appellants were of humble means and could not meet the costs of the suit, while the respondent had financial might.

**THE EVIDENCE**

1. Peter Wakhatenge (PW1), who is the 1st appellant testified that the respondent trespassed on the suit land between 1999 and 2000 and forcefully took it over. As a result, in 2001, he was stopped from using his portion of the suit land, which is approximately four (4) acres of land. The land originally belonged to his father Geresom Nasasa who died in the 1970s. His neighbours on the land were Bubilabi in the west, the 3rd appellant and respondent in the north, the 2nd appellant in the east and his own land in the south. He had constructed a semi–permanent house on the suit land, which house was still in existence at the time of his testimony in court. The suit land had many “*Mvule*” trees. The respondent stopped him from cultivating the suit land and stopped area locals from drawing water from the witness’ well. His late father Geresom Nasasa and his grandfather (Walumansi Magombe) were buried in another piece of land in Mooni, while his great grandfathers Makosiya and Wasese were buried on the suit land alongside a one Nashibumba. 2. It was his further testimony that besides the suit land, the respondent first grabbed the piece of land on which it had constructed a water tank from his ancestors and fenced it off from the rest of their land, which is now the land in dispute. He did not know whether the respondent had a certificate of title to the suit land, but stressed the fact that the respondent had never utilised the suit land. He informed the court that he belonged to the Bakingara clan. PW1 further testified that the grave of Makosiya existed on the suit land, while the graves of Wasese and Nashibumba were on the plot of land that was originally fenced off by the respondent. He prayed that the court orders the respondent to either buy the suit land from him or give it back to him. He prayed for the costs of the suit. 3. During his cross-examination, he reiterated his evidence in chief and further testified that the dimensions of suit land had never been established, but that the plaintiffs used the existing boundary marks to differentiate their respective portions. The suit land is situated in Isebelle Cell and is neither next to Zesui Cell nor Tororo Cement mining ground. There was no church in the neighbourhood of the land in dispute. His late father and grandfather had lived on the suit land since their birth, despite the fact that they were not buried on the suit land. The witness had lived on the suit land since his birth. Bungokho Water Works existed from the 1950s and the respondent took over its assets in 1970. The respondent started its operations in that area in 1980. The respondent’s officials accompanied by police officers and surveyors trespassed on the suit land in the year 2001. Members of Busimba Clan lived in Busimba Cell. A one Rajab Nambasi was a resident of his village but the witness did not know that the said person had an interest in the suit land. He emphasized the fact that there was no one using the suit land. 4. During his re-examination, PW1 testified that his father inherited the suit land from his grandfather, who had also inherited it from his father Makosiya (the witness’ great grandfather). In 2008, he tried to use his portion of the suit land again, but the respondent stopped him. He was not claiming the fenced land which the respondent first grabbed from his ancestors. He had never been approached as a neighbour by the respondent’s surveyors, to witness any survey. 5. Sijaba Adam Masaba (PW2) who is the 3rd appellant corroborated PW1’s evidence and further testified that he inherited his portion of the suit land, which is approximately three (3) acres from his father (Adam Masaba), who also inherited it from Nayera Kitembwa. His neighbours are the 2nd appellant in the east, Kisiro in the west, Mrs. Hirome in the north and 1st appellant in the south. His father died in 1998 but was not buried on the suit land. His grandfather on the other hand was buried on the suit land but his grave was excavated by the respondent. The suit land has big trees and the houses his father constructed were still on the said land. He had since birth lived on the suit land and used part of it to graze cows. The land currently used by the respondent is not the suit land. It is not in dispute and is well fenced. Although the respondent had never used the suit land, it had prevented the plaintiffs from using it by threatening them. The respondent’s water tanks are on the suit land. He did not know how the respondent acquired the suit land and whether it had a title deed for the said land. 6. During his cross-examination, he testified that the suit land measured fourteen (14) acres. There was no document of ownership of the suit land that was left behind by his late father. His father was not buried on the suit land because of threats from the respondent transmitted through their official a one Ochaya who was assisted by the police. The witness informed the court that when the respondent stopped the appellants from building and cultivating on the suit land, he registered a complaint with the area local council (LCI) chairperson. 7. Juma Kuranga (PW3) is the 2nd appellant. He corroborated the evidence of PW1 and PW2 regarding the fact of trespass and the period that the respondent had trespassed on the suit land. He testified further that he inherited his portion of the suit land after the demise of his father (Asuman Madanda). His late father was buried on the suit land but his grave was excavated by the respondent. His neighbours are the 3rd appellant in the west, 1st appellant in the east, the respondent in the north and Justice Wangututsi in the south. He had lived on the suit land since his birth, but had since stopped cultivating the said land after the respondent trespassed on it in 2001. He was only using it to graze his cattle. He belongs to the Bashiwuma Clan, while the other appellants belong to different clans. He had a house on the suit land which collapsed, then he went to live with his niece named Khainza who lives near the suit land, from the year 2000 to 2007. His son built him another house on the suit land in 2007. 8. In the course of his cross-examination, he testified that he did not know how the respondent acquired the land it occupies but affirmed that the respondent had built structures on its land in 1950. It was his evidence that his father’s land was excavated by the respondent in 1950 and the witness reported a complaint to the RC. PW3 insisted that the appellants did not immigrate to the suit land. He knew Watulo but did not know anyone by the name Nambasi. 9. During his re-examination, he explained that the land currently housing the respondent was grabbed from him in 1950 and he reported the matter to the area land chiefs. He maintained that his father’s grave was excavated in 2000. 10. PW4 – Wafidi Safiyi testified that he was the LC1 chairperson of Isebelle Cell since 1986. The suit land is located in Isebelle Cell. He did not know the size of the suit land but stated that it was next to the land of Masogoyi in the east, Eden Church in the west, the land of Watulo in the north and Sowedi’s land in the south. According to him, the suit land belonged to the appellants who had occupied it since 1986. The respondent had never used the land in dispute. 11. During his cross-examination, he asserted that although the suit land had never been measured, it was demarcated by boundary marks and each of the appellants knew their respective pieces of land. He did not know for a fact that the respondent was in possession of a certificate of title of the suit land. According to him, the respondent existed in the area since 1986. When the respondent excavated the suit land in 2001, the 2nd appellant reported the matter to him. He had never seen the equipment used by the respondent in excavating the 2nd appellant’s father’s grave. The area LC Committee sat to mediate between the parties and the matter was forwarded to court when mediation failed. The 2nd appellant was living in Busimba, a village that is near Isebelle Cell. 12. In his re-examination, he explained that while the 2nd appellant resides in Busimba Cell, he owns land in Isebelle Cell. The 2nd appellant’s grandson had constructed a house for him in Isebelle Cell. 13. For the respondent, Eric Nyanga (DW1) testified that he was a senior technical officer employed by the respondent for a period of eighteen (18) years. Fifteen (15) of those years were spent in Mbale. His duties included overseeing engineering operations and corporate assets like the land and the water supply area. The land in issue is located on Plot M4, measuring 1.813 hectares, which is used in the treatment of water. According to him, the registered proprietor of the said land is the respondent. The area locals encroached on the suit land in 2001, destroyed crops and planted their own crops, claiming ownership over the land which they claimed was their ancestral land. The dispute was reported to the Resident District Commissioner (RDC) then, a one Hassan Galiwango, but it was not resolved. The witness knew the 1st appellant as someone who was working with Mbale Municipal Council and was also an LC member of Bungokho Mutoto Sub County. He testified further that the respondent was created by a decree in 1972 and took over from the Directorate of Water Development. The respondent was in possession of a certificate of title of the suit land, survey reports and a lease from the District Land Board. The suit land is next to Tororo cement in the north and four other plots, Zesui road in the east and Busolwe close in the west. He did not know who owns the land in the south. He prayed for costs on the respondent’s behalf and asked the court to issue an eviction order against the appellants. 14. During his cross-examination, he testified that the Directorate of Water Development handed over the suit land to the respondent legally in 1997. He believed that the suit land was government land, since the respondent was a government institution. When he got employment with the respondent in Mbale, he found the respondent’s predecessor’s staff members occupying the suit land before it was handed over to the respondent. The respondent is in possession of written reports concerning its ownership of the land in dispute. A one Peter Mudebo was instructed by the respondent to re-open the boundaries of the respondent’s land and the appellants were invited to the reopening of boundaries because they were elders of Isebelle Cell. The only neighbour of the respondent invited to the boundaries reopening was the LC1 chairperson of Zesui Cell, a one Dan Okose. The rest of the neighbours were disregarded. The suit land is located in both Isebelle and Zesui Cells. The respondent applied to the area land committee before conducting the said reopening of boundaries but did not know if the notice of the application was given to the neighbours of the suit land. There were cases of encroachment of the suit land in 1999, which were reported to the office of the RDC. The RDC held a meeting between the parties and the appellants were advised to vacate the suit land. The respondent was in possession of the minutes of the said meeting. The witness maintained that the suit land had never ceased to be government land since the first lease was for forty-nine (49) years and was acquired in 1950. 15. In his re-examination, he contradicted himself when he testified that the respondent took over the suit land from the Directorate of Water Development in 1987. He explained that before the respondent took over the suit land from the Directorate of Water Development, there was a water treatment plant, an access road, and a perimeter wall with staff houses on its land. Peter Mudebo was one of the staff surveyors, whom the respondent hired to open up the boundaries of the suit land and it was required of him to work with the area elders who were present. Some of the respondent’s staff members utilized the suit land for cultivation of food and for accommodation, but were stopped from using the said land by the respondent. 16. DW2 – Ochaya Bernard corroborated DW1’s testimony and further testified that he worked with the respondent as a security officer. He knew the appellants since they had met several times. The 3rd appellant’s father worked with the respondent but retired in 1999. As for the 1st appellant, he had met him several times at the court premises. Regarding the 2nd appellant, he was residing near the respondent’s water system in Mooni. The suit land was next to Eden church in the west. It was handed over to the respondent by the Directorate of Water Development in 1987. The respondent acquired a lease over the suit land in 1994 and later obtained a certificate of title in 2004, thus becoming the registered proprietor of the said land. The land was surveyed a while back but the boundaries were re-opened around 2003. He was not sure whether he was present during the re-opening of the boundaries of the land. The respondent invited area LCs who witnessed the event. The appellants were not customary owners of the land and neither were they neighbours of the suit land. This last statement of his evidence contradicted his earlier testimony that the 2nd appellant was a neighbour of the respondent’s water system in Mooni. He stated that no one was using the suit land at the time of his testimony, but the respondent intended to use it for the extension of the water treatment plant. 17. During his cross-examination, he testified that he had been working with the respondent since 1992 and had specifically worked in the respondent’s Mbale branch since 1996. His job was to protect the respondent’s property. He knew about the respondent’s ownership of the suit land, because he had read the respondent’s file regarding the suit land. He maintained that the 2nd appellant had no land next to the suit land. He was not present when the suit land was handed over to the respondent by the Directorate of Water Development and he was also not present when the lease was acquired by the respondent in 1994. He did not know when the lease offer by the Mbale Municipal Council expired. He was unsure whether any surveyors surveyed the disputed land in 1935. 18. During his re-examination, he admitted the fact that his job was not to handle corporation documents. 19. Edith Kateete (DW3) testified that she was the manager legal services of the respondent and was responsible for all the legal matters of the company, including issues relating to the acquisition of land and giving legal advice to the respondent. At the time the respondent acquired the suit land in 1987, the Directorate of Water Development was its owner as well as other water institutions in Mbale. The respondent asked for legal documents concerning the suit land from the officials of the Directorate of Water Development. The respondent’s officers were informed that a survey was carried out in 1935 and that the survey map was in Entebbe. The officials of the Directorate of Water Development further informed the officials of the respondent that the land title had not been issued at the time of the inquiry. When she joined the corporation in 1992, the respondent applied for a lease, which lease was granted in 1994. The respondent later applied for a certificate of title. The respondent had never encroached on the appellants’ land as claimed. After acquiring the certificate of title of the suit land, the respondent fenced off the suit land using a chain-link fence, whose components were subsequently stolen. The suit land is next to Tororo cement and Zesui Cell in the west, Eden church in the south and Wanale road in the east. 20. During her cross-examination, it was her evidence that the appellants had been in illegal occupation of the suit land since 2002. She insisted that the appellants were not occupying the suit land by 1950. The stated certificate of title was obtained in 2004 and the suit land was fenced then. The suit land was measuring 1.813 hectares at the time it was handed over to the respondent by the Directorate of Water Development in the Ministry of Water, Lands and Environment. At the said time, there was no lease offer granted to the respondent, although there was a deed plan issued to it on 16th June 2002. A certificate of title was obtained by the respondent on 12th July 2004. The re-opening of the boundaries was done in 2000. However, she did not have any report concerning the said re-opening of the boundaries. The witness did not know when the Directorate of Water Development acquired the suit land. She emphasized the fact that the Directorate of Water Development was and is still a government department under the Ministry of Water, Lands and Environment. She became knowledgeable about the transactions that happened before she joined the respondent through the official records of the respondents and through information provided to her by her colleagues. 21. In her re-examination, she testified that by 1994 there were no encroachers on the suit land because the land was still fenced. This is contrary to her earlier evidence in cross-examination that the suit land was fenced off in 2004, as soon as the respondent acquired the certificate of title.

**THE LOCUS IN QUO EVIDENCE**

1. The witnesses at locus were the 1st appellant, a one Rajab Nambasi, PW4, DW1 and the 3rd appellant. The 1st appellant stated as follows in his evidence in chief at locus: *“My land begins at the fence of water works via the washout covering a distance of 1500 metres via a stone up hill. This is my grandfather’s grandfather Sisoni Magosiya. He died in 1929. My grandfather died in 1972. He was called Geresom Nasasa. I did not bury my grandfather here because we had a land dispute as way back as 1972. I was born in 1950. A white man came in the company of Kiiza. The white man was Monopati. At the time, I was six years.”* 2. In his cross-examination, he testified thus: *“What I showed you is my true land. Rajab is not our neighbour at all. In court I told court there is a grave of my great grandfather. I told court that my father shifted in the 1960s. There was a war. Even if I was a young boy I remained here. I constructed this house in 1968. My father occupied the land in the fence. He was promised money which was never paid. He remained with all that land. This well was dug by my grandfather. It is a community well. These yams are mine. I do eat these yams.”* 3. Rajab Nambasi, a locus in quo witness stated: *“I am aged 52 years. The 1st appellant’s land begins at the corner. The lower part is mine. I got it from my grandfather Wakamala in a year I can’t recall. My father Wabuyi Budai got it from my father. I have nothing bequeathing this land. There is a case in court. There is a grave of my grandfather Matsanga.”* He was not cross-examined. 4. PW4 the area LC1 chairperson stated: *“I only see the grave here not anywhere else. The yams were planted by the residents. I do not know who planted them”*. 5. What was said at locus by DW1 is not clearly delineated. His testimony was recorded as follows: *“There is a mark stone near this grave. These crops were given by NWSC so we chose anybody from eating the yams. This is an 11km pipe to Nabuyonga Size D. 150 case iron. It can easily be damaged. Next paint near the east iron pipe that brings rain water. House of the former councillor Wamusi Abdalla. Shrine. Over 50 or so parties. Construction materials. After Tororo cement. 2 square metre polls. Quality Tororo cement. Discharge channel. Grank’s land is 20 metres by 150 metres to Wakhatenge’s Palm trees. Stamp ending Grank’s land.”* 6. The evidence of PW3 (the 3rd appellant) is recorded in a similar manner as follows: *“The road is in my land. The palm trees planted along time ago. It must have been in 1986. I am 38 years old. I was born in 1972. My father died in 1998. He was not buried in the suit land. There was a land conflict. This is where the grave was. It is 48 paces to the entry. Busolwe road. Old drainage channel it had been damaged in part of Grank’s land. Gate valve to town we open and close. The rusted one is to wash the valve. The graves were here near the two valves. 68 paces measured by court orderly from the two valves to the fence. Tain over road by NWSC [main gate] the gate and entry box is not mine. I do not know who erected the gate and entry box. This is not Wanale road but Muyanda road. It is stretched from Eden Church. This is formerly waste channel. It was blocked by people here. Fence Concrete stamp. They are more evident because they have not been tampered.”*

**THE SKETCH MAP**

1. The sketch map on record is a rough one. It shows that a church exists on the south east of the disputed land. It also shows that here is a road called Muyanda, coffee and banana trees, a new house, bricks and an 11km access road in the south. It is noted that the 1st appellant showed the presiding officer the end of his boundary near a certain tree, although it is not mentioned with whom the 1st appellant shares the said boundary. It is noted further that water tanks exist in the northeast, but it is not clear whether the said tanks are situated on the suit land or not. Finally the sketch map shows that there is a *“wash out 17 kilometres class D steel pipe”* which runs southwards from the suit land.

**REPRESENTATION**

1. At the hearing of this appeal, Mr. Nyote David Innocent represented the appellants, while Mr. Samuel Madaba represented the respondent.

**SUBMISSIONS OF THE PARTIES**

***The appellants’ submissions***

1. Mr. Nyote agreed with the trial magistrate’s finding that the appellants were not customary owners of the suit land, but insisted that the appellants were bonafide occupants of the suit land, since they and their ancestors had lived on it for more than twelve (12) years before the 1995 Constitution of the Republic of Uganda was promulgated. He cited the case of ***Kampala District Land Board and another versus Venansio Babweyaka & Others (supra)*** in support of his argument. 2. Counsel submitted inter alia that the appellants had adduced evidence, which he believed had not been properly considered by the learned trial magistrate when he reached his decision. He referred to the 1st appellant’s evidence to the effect that he was born on the suit land, which was owned by his ancestors Makosiya, Wasese, Nashibumba, including his father Geresom Nasasa, which land he had inherited in the 1970s, following the demise of his father. He mentioned the evidence of the witness that he had constructed a house on the suit land and that his ancestors were buried on it, save his late father. 3. Mr. Nyote summed up the evidence of the 2nd appellant, which is to the effect that he inherited the suit land from his late grandfather, Nayera Kitembwa whose grave is on the suit land, but had been covered by the respondent using marram. 4. It was also counsel’s submission that the 3rd appellant’s evidence was that he had lived on the suit land since he was born, having inherited it from his father, a one Asuman Madanda, who was buried on it, although his grave had been destroyed by the respondent. 5. Concerning the testimony of PW4, counsel highlighted the fact that this witness had been one of the area LC officials since 1986 and had seen the appellants using the suit land since then. 6. The appellants’ counsel observed that the aforementioned evidence of the appellants was unchallenged by the respondent in cross-examination. He cited the case ***Habre International Co. Ltd & Ebrahim Alakarakia Kassa & Ors No.4 of 1999***, to support his argument that when essential and material evidence is not challenged by the respondent through cross-examination, the inference to be drawn is that it is admitted. 7. Mr. Nyote criticized the respondent for failing to adduce evidence to corroborate DW1’s testimony that the area locals had encroached on the suit land in 2001. He averred that despite DW1’s claim that the respondent had obtained a certificate of title as well as a lease offer in the Mooni neighbourhood, the said documents were never exhibited, having been tendered for identification only. 8. Counsel Nyote submitted, and rightly so, that documents tendered for identification cannot be relied upon by the court in reaching its decision and that if the trial magistrate had addressed his mind to that fact, he would have found that the respondent did not have any interest in the suit land. 9. He insisted that there is no evidence adduced to show that the Directorate of Water Development owned the suit land and no witness was called from the Ministry of Water, Lands and Environment to corroborate the testimonies of the respondent’s witnesses. He questioned the respondent’s interest in the suit land, considering the fact that the tenure of the Directorate of Water Development was not disclosed, thus the respondent had not by proper proof, disclosed its interest in the suit land, which it allegedly settled on in 1987. 10. In conclusion, it was submitted for the appellants that they had presented a credible case in the lower court and established that they had been on the suit land for more than 12 years before the Constitution of the Republic of Uganda 1995 came into effect.

***Arguments for the respondent***

1. In his response, Mr. Madaba raised a point of law regarding grounds 1 and 4 of the appellants’ memorandum of appeal. According to him, the said grounds offend the provisions of Order 43, Rule 2 of the Civil Procedure Rules SI 71 – 1, which provide that a memorandum of appeal shall concisely set forth the grounds of objection to the decree appealed from. To support his contentions, he cited the case of ***Olonya James versus Ociti Tom & 3 Others Civil Appeal No.64 of 2017***, in which the trial judge struck out the grounds of appeal basing on the fact that they were too general and offended the provisions of ***Order 43, Rule 1 and 2 of the Civil Procedure Rules***. He prayed that the court upholds the preliminary objection. 2. Without prejudice to his submissions on the point of law, the respondent’s counsel submitted on the merits of the appeal, stating inter alia that the appellants’ claim against the respondent was premised on the fact that they were customary owners of the suit land as shown in paragraphs 4 and 9 of the plaint and that therefore, they could not claim to be bonafide occupants of the suit land in their submissions, as the said submissions departed from their pleadings filed in the lower court. He observed that parties are bound by their pleadings that it was wrong for the appellants to depart from their pleadings and prove a case they had not pleaded, without amending their pleadings. He cited the case of ***Interfrieght Forwarders (U) Ltd Versus East African Development Bank Supreme Court Civil Appeal No. 33 of 1993 (unreported)*** to support of his submissions. 3. Mr. Madaba asserted that the appellants had not adduced any evidence to prove their claim of being bonafide occupants of the suit land, which finding the trial magistrate had rightly made in his judgment. He further asserted that the appellants’ evidence of their occupation of the suit land was challenged. He pointed out the fact that the 2nd appellant had testified that his father was not buried on the suit land. 4. Counsel submitted that the trial magistrate had confirmed the existence of a damaged perimeter wall and fence belonging to the respondent when he visited the locus in quo. Unfortunately the said wall and fence are not shown on the sketch map, although the trial magistrate mentioned them in his judgement at page 7. Counsel concluded that the trial magistrate had properly found that the appellants were mere trespassers on the suit land, given that their occupation of the land was not bonafide. Mr. Madaba prayed that the appeal is dismissed with costs to the respondents.

**DETERMINATION**

1. I have considered the appeal, the submissions of both counsel, and the law applicable. It is trite law that the duty of the first appellate court is to re-evaluate the entire evidence on record and come to its own conclusion, bearing in mind that it did not see the witnesses testify ***(***See ***Father Nasensio Bagemisa and others versus Eric Tibebaga SCCA No. 17 of 2002 reported in [2004] KALR 239).*** 2. I will first address my mind to the objection raised by Mr. Madaba, concerning the framing of grounds 1 and 4 of the memorandum of appeal. He attacked those grounds for being too general, thus offending ***Order 43, Rule 1(2) of Civil Procedure Rules***. The said grounds are that: * + 1. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record and thereby reached an erroneous decision against the appellants;

4. The decision of the trial Magistrate has occasioned a miscarriage of justice.

1. ***Order 43, Rule 1 (2) of the Civil Procedure Rules*** provides:

“*The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively”.*

1. I do agree that those grounds of appeal are vague and do not specially point out which evidence was not well evaluated by the trial court or what errors the appellants observed in the trial court’s decision which caused the alleged miscarriage of justice. Thus, their framing was poorly done, in light of the requirements of ***Order 43, Rule 1 (2)*** for grounds of appeal to be concisely set forth. 2. This fact notwithstanding, courts have adopted a liberal approach in interpreting pleadings in light of ***Article 126(2) (e) of the Constitution of the Republic of Uganda, 1995***, which encourages courts to administer substantive justice without undue regard to technicalities. In ***Nyero Jema versus Olweny Jacob & 4 Others (Civil Appeal No. 0050 of 2018)*** the appellants filed an appeal on two grounds namely that: The trial magistrate erred in law and fact when he failed to properly evaluate the documentary evidence before him, hence reaching a wrong judgment; and The trial court erred in law and fact when it failed to properly evaluate the evidence before it, thereby reaching a wrong judgment. The Hon. Justice Steven Mubiru found the said grounds to be too general and offending the provisions of ***Order 43, Rules (1) and (2) of the Civil Procedure Rules***. He observed as follows:

*“Appellate courts frown upon the practice of advocates setting out general grounds of appeal that allow them to go on a general fishing expedition at the hearing of the appeal hoping to get something they themselves do not know. Such grounds have been struck out numerous times … Both grounds of appeal are accordingly struck out**….*

*That should have been the end of the appeal but I consider the general duty of this court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal to override shortcomings of this nature in pleadings. The law relating to pleadings has been undergoing changes in a bid to do substantial justice rather than uphold mere technicalities. By virtue of article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995) courts are to administer substantive justice without undue regard to technicalities. It is thus not desirable to place undue emphasis on form, rather than the substance of the pleadings. Courts are not expected to construe pleadings with such meticulous care or in such a hyper-technical manner so as to result in genuine claims being defeated on trivial grounds. Courts have always been liberal and generous in interpreting pleadings.”*

1. I find this reasoning very compelling and to this end, I will dismiss the preliminary objections and proceed to determine the grounds of this appeal. 2. This court will determine grounds 1 and 3 together since determination of ground 1 has the effect of disposing ground 3.

***Ground 1 - The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record and thereby reached an erroneous decision against the appellants.***

***Ground 3 - The learned trial Magistrate erred in law and fact when he failed to find the appellants are the bonafide occupants of the land in dispute;***

1. Counsel Nyote agreed in his submissions with the learned trial magistrate’s finding that as the appellants had not provided evidence of obtaining consent from the area controlling authority to own land in an urban area as customary owners, a requirement of ***Section 24 of the Public Lands Act and Section 5(1) of the Land Reform Decree 1975***, they were not customary owners. He however faulted the court for not finding that the appellants were bonafide occupants, since they had been in possession of the suit land for more than twelve (12) years when the 1995 constitution came into force. According to him, the appellants were protected ***by Section 29 of the Land Act 1998***. Counsel Madaba on the other hand disputed Mr. Nyote’s argument, submitting that the appellants merely cited the claim of being bonafide occupants of the suit land in their submissions without pleading the same in their plaint. According to him, the appellants were bound by their own pleadings, wherein they claimed to be customary owners as per paragraphs 4 and 9 of their plaint. 2. The plaint filed in the lower court shows that the appellants did declare that they were the customary owners of the land in paragraph 4 of the plaint. Similarly, in paragraph 9 of the plaint, the appellants state as follows:

*"the plaintiffs shall jointly and severally aver that the defendant has no right to evict them from the land as they are bonafide customary owners duly protected by Article 237(3)(a) and 8 of the Constitution of the Republic of Uganda, 1995".*

1. ***Article 237(3) (a) of the Constitution of the Republic of Uganda*** provides for land in Uganda to be owned in accordance with the customary land tenure. ***Article 237(8)*** of the same constitution provides:

“*Upon the coming into force of this Constitution and until Parliament enacts an appropriate law under clause (9) of this article, the lawful or bonafide occupants of mailo land, freehold or leasehold land shall enjoy the security of occupancy on the land."*

1. While the appellants used the phrase *“bonafide customary owners”* and based their claim on ***Articles 237(3) (a) and 8 of the Constitution of the Republic of Uganda, 1995***, the gist of their claim was clear. They stated the facts constituting the cause of action in paragraph 6 of the plaint as follows:

*"In fifties, the defendant acquired a piece of land in Mooni neighbouring the plaintiffs’ ancestry lands on which they installed water tanks. In seventies despite their protests from the plaintiffs, the defendants in the course of reinstalling new water tanks encroached upon their lands and forcibly fenced off the area. In 2000, while the plaintiffs were peacefully, enjoying quiet possession of their lands, outside the fenced land, the defendant and/or gents servants started chasing, harassing, intimidating them and their families not to use the said lands; persistent, requests to the defendants not to encroach or to stop threats have been made but the defendants have stubbornly refused to stop.”*

1. From this quotation, it is obvious to me that the appellants' claim is grounded on customary ownership of the suit land. They were not claiming to have obtained any interest in the said land after the respondent had acquired it. In other words, they were not claiming to be bonafide occupants of the suit land. Bonafide occupancy is defined in ***Section 29(1) of the Land Act*** as follows:

*“Bona fide occupant” means a person who before the coming into force of the Constitution—*

1. *had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or* 2. *had been settled on the land by the Government or an agent of the Government, which may include a local authority.* 3. Similarly, ***Section 29 (5) of the Land Act*** provides that any person who has purchased or otherwise acquired an interest of the person qualified to be a bonafide occupant under this section shall be taken to be a bonafide occupant for the purposes of this Act. 4. In light of the aforesaid provisions of the law, whoever claims an interest in land as a bonafide occupant, must prove that he/she used, occupied or developed land that is owned by a registered owner. 5. The facts presented by the appellants in the plaint and evidence that they adduced before the trial court shows that they brought their action against the respondent as customary owners and not as bonafide occupants. Never at any point did their evidence support the claim that someone else owned the suit land before their forefathers occupied it. Moreover, counsel Nyote’s submissions summing up the evidence of the appellants point to the fact that the appellants are actually claiming to be customary owners of the suit and not bonafide occupants of the suit land. His averments were not that the appellants are bonafide occupants. He actually disputes the respondent’s claim of ownership of the suit land as its registered proprietor. No evidence was led at trial to prove that the appellants are bonafide occupants of the suit land. 6. ***Order 6, Rule 1 of the Civil Procedure Rules*** provides that every pleading shall contain a brief statement of the material facts on which the party pleading relies for a claim or a defence, as the case may be, while ***Order 6, Rule 3 of the Civil Procedure Rules*** stipulates that in all other cases in which particulars may be necessary, the particulars with dates shall be stated in the pleadings. In ***Interfreight forwarders (u) limited versus East African Development Bank Civil Appeal No.33 of 1992***, the court held:

*“The system of pleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before trial and which the court will have to determine at the trial. See Bullen & Leake and Jacob’s precedents of pleading 12th Edition, page 3. Thus, issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues as framed. He will not be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings.”*

1. Given the provisions of the Civil Procedure Rules and the decision in ***Interfreight forwarders (u) limited versus East African Development Bank (supra)****,* counsel Nyote’s submissions on bonafide occupancy of the suit land by the appellants cannot hold any water. It was necessary for a cause of action arising from bonafide occupancy to have been established by the appellants in their pleadings with relevant particulars thereof, to enable the respondent to properly respond to it. 2. As for Mr. Nyote’s argument that the appellants were bonafide occupants of the suit land and his reliance on the case of ***Kampala District Land Board and Another versus Venansio Babweyaka and Others (supra),*** in support his submissions, the respondents in that case pleaded that they were lawful/bonafide occupants and/or customary owners of the suit land and went ahead to adduce evidence to support their claims. In the case before me however, no evidence of bonafide occupancy was adduced as already mentioned above and this court cannot find basing merely on the submissions of appellants’ counsel, that the appellants are bonafide occupants of the suit land. 3. It is a well settled position of the law that in determining whether a plaint has disclosed a cause of action, the court must look only at the plaint and its annexures if any and nowhere else ***(***See ***Kapeka Coffee Works Ltd versus NPART CACA No. 3/2000)***. Since the plaint of the appellants does not disclose the particulars of the appellants’ bonafide occupancy, in agreement with Mr. Madaba, I find that the trial magistrate properly held that the appellants were not bonafide occupants of the suit land. 4. In respect of the appellants’ claim that they were customary tenants of the suit land, Counsel Nyote agreed with the trial magistrate’s findings that the appellants were not customary tenants. He however stated that their evidence regarding their interest in the suit land remains unchallenged. Mr. Madaba on the other hand disagreed. 5. It was the evidence of the appellants that they were born and raised on their respective portions of the suit land, which they subsequently inherited from their forefathers and that they cultivated crops and grazed cattle on the suit land until they were stopped by the respondent who restricted them to using their land for only grazing cattle. According to their evidence, the 1st appellant’s great grandfathers Makosiya and Wasese were buried on the suit land and so were the 3rd appellant’s and 2nd appellant’s grandfathers Nayera Kitembwa and Asuman Madanda respectively. 6. PW4’s evidence corroborates the appellants’ testimonies when he stated that since he became the chairperson of Isebelle Cell in 1986, the appellants have always been in occupation of the suit land and each of them lived in a demarcated portion of the land. This aspect of his evidence remains unchallenged. 7. DW1 testified that the area locals encroached on the suit land in the year 2001, destroyed crops that were on it and planted their own crops, claiming that the suit land was their ancestral land. Whereas it was DW1’s testimony that the employees of the respondent used the suit land for cultivation and accommodation before it was handed over to the respondent by the Directorate of Water Development and while DW2’s evidence was that the 3rd appellant’s father worked with the respondent and retired in 1999, their evidence only explains how the 3rd appellant went to live in the suit land, but does not explain how the rest of the appellants occupied the land. 8. Notably, DW2 the security officer of the respondent testified that he was in charge of protecting the respondent’s assets and that the suit land was not in use by anyone. He claims that the respondent remained in possession of the suit land after the so called trespass by the appellants. If the evidence of this witness concerning the respondent’s uninterrupted possession of the suit land is to be believed, then there is no way that the appellants’ ancestors could have been buried on the suit land. Similarly, the 1st appellant could not have constructed a new house on the suit land in 2007 as per his testimony in court, which testimony was not discredited. 9. On the other hand, the appellants’ evidence that their ancestors lived on the suit land since time immemorial is more believable as the gist of it, is that they inherited their respective portions, lived on the land since their birth and derived sustenance from it. Some of their ancestors were buried on the suit land, which evidence was never challenged by the respondent in cross-examination. 10. Customary tenure is defined in ***Section 1(1) of the Land Act, Cap 227*** to mean a system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons the incidents of which are described in Section 3. 11. ***Section 3(1) of the Land Act*** provides that customary land tenure is a form of tenure: 12. *applicable to a specific area of land and a specific description or class of persons;* 13. *subject to section 27, governed by rules generally accepted as binding and authoritative by the class of persons to which it applies;* 14. *applicable to any persons acquiring land in that area in accordance with those rules;* 15. *subject to section 27, characterised by local customary regulation;* 16. *applying local customary regulation and management to individual and household ownership, use and occupation of, and transactions in, land;* 17. *providing for communal ownership and use of land;* 18. *in which parcels of land may be recognised as subdivisions belonging to a person, a family or a traditional institution; and* 19. *which is owned in perpetuity.* 20. In my considered view, the provisions of ***Section 3(1) (e), (g) and (h) of the Land Act***, cited above apply to this case in respect of the appellants who proved at the trial that they inherited their respective portions of the suit land from their forefathers, who were on the land even before 1929 when the 1st appellant’s great grandfather died and was buried. 21. Notably, the 2nd appellant testified that he belongs to the Bashiwuma clan, while the other appellants belong to different clans. This fact was corroborated by 1st appellant who testified that he belongs to the Bakingara clan. The fact that they are not members of the same clan is immaterial in light of ***Section 3(1) (e) and (h)*** of the Land Act. In my considered view, the appellants have established that they are customary owners of the suit land. 22. That takes me to the trial magistrate’s finding that the appellants could not claim any rights as customary tenants as they had not adduced evidence that Mbale Town Council (which is the urban controlling authority), consented to their utilisation of the suit land. The trial court relied on the repealed ***Section 24(1) (a) of the Public Land Act, 1969 and Section 5 (1) of the Land Reform Decree*** to arrive at its decision. It is thus essential for this court to determine whether the appellants were lawfully on the suit land in light of these provisions. 23. ***Section 24(1) (a) of the Public Land Act, 1969*** provided:

*“Subject to the provisions of subsection (5) of this section, it shall be lawful for persons holding by customary tenure to occupy without the grant, lease or licence from the controlling authority unalienated public land vested in the commission, if–*

1. *the land is not in an urban area.”*

***Section 24(5) of the Public Land Act*** provided:

*“The minister may by statutory order specify any area of Uganda to be an area in which public land is not occupied by customary tenure at the commencement of such order shall not thereafter be occupied otherwise than by virtue of an estate interest or other right of occupancy granted by the controlling authority or upon such conditions as the minister may specify.”*

***Section 5 of the land reform decree, 1975*** provided:

*“With effect from the commencement of this Decree, no person may occupy public land by customary tenure except with the permission in writing of the prescribed authority which permission shall not be unreasonably withheld:*

*Provided that the commission may, by statutory order specify areas which may be occupied by free temporary licence which shall be valid from year to year until revoked.”*

1. The above-cited provisions clearly allowed persons to hold customary land in urban areas after obtaining a grant, lease or licence from the controlling authority. The trial magistrate relied on the said provisions together with the decision delivered by the Supreme Court in ***Kampala District Land Board and Anor versus Venansio Babweyaka and others (supra)*** to make his findings. In that case, the respondents claimed to have been in occupation of the suit land from about 1998, having purchased their interests from the previous occupiers, who had acquired it as far back as 1970. The court found that prohibition of customary tenure in urban areas is clear from ***Section 24(1) (a) of the Public Lands Act*** and that at the time the predecessors of the respondents occupied the suit land in 1970, they could not do so under customary tenure. As to whether the respondents acquired customary ownership following the enactment of the Land Reform Decree, 1975, the court further held that restrictions on acquisition of customary tenure under the Public Lands Act seem to have continued as the law continued to govern all types of public land including customary tenure subject to the provisions of the decree. It observed that in order to acquire fresh customary tenure, one had to apply to the prescribed authorities and receive approval of his or her application but there was no evidence adduced that such prescribed authorities existed at the time nor was there evidence adduced that the respondents or their predecessors acquired fresh customary tenure in accordance with the Land Reform Decree. The court also held that the respondents could not have legally acquired customary tenure in an urban area of Kampala city, prior to the enactment of the Land Act 1998. 2. The facts of that case are however distinguishable from the facts in this appeal. There is evidence from the 1st appellant that his great grandfather owned his portion of the suit land before his death in 1929. The 2nd appellant testified that he was 81 years old at the time of his testimony on 19th May 2010 and he was born and raised on the suit land. The evidence of the first two appellants clearly shows that their forefather’s interests in the suit land emanated before 1969. The 3rd appellant did not give the exact date when his forefathers acquired the suit land but stated that his interest was derived from his great grandfather and father. Since his interest in the suit land is connected with the interests of 1st and 2nd appellant, I do not hesitate to find that the land in issue was occupied by all appellants’ forefathers before the enactment of the Public Land Act 1969. This evidence of the appellants was not effectively challenged in cross-examination. Therefore, the said Public Land Act cannot apply retrospectively against the appellants. 3. Even so, the ***Crowns Land Ordinance, 1903*** was the law governing land ownership between 1903 and 1962. ***Section 24(4), of the repealed Crown Lands Ordinance 1903*** provided that indigenous Ugandans had a right to occupy any land (outside the Buganda kingdom and urban areas) not granted in freehold or leasehold, without prior license or consent in accordance with their customary law. 4. No evidence was adduced at trial by the respondent to show that the suit land was situated in an urban area in 1935 when it claimed to have acquired it. Also, no proof that it was freehold land or held under leasehold tenure was adduced by the respondent at all. 5. In fact, it is the evidence of DW3 that when the respondent inquired about the legal documents of ownership of the suit land from the officials of the Directorate of Water Development, the respondent’s officials were informed that there was no certificate of title available for the suit land and that it was only a survey map of the said land existed. The said survey map was not adduced in evidence. The onus was on the respondent to produce the said documents to establish their claim in accordance with the requirements of ***Section 101 of the Evidence Act, Cap 6***. 6. In the result, it is my considered opinion that the learned trial magistrate erroneously relied on ***Sections 24(5) of the Public Land Act and Section 5 of the Land Reform Decree*** to reach his decision. 7. Concerning the learned trial magistrate’s finding that the evidence on record establishes that the respondent was the registered proprietor of the suit land, I think that this finding of the court is also inaccurate, since it relied on documents that were tendered for identification only, by the respondent, namely: the Certificate of Title, the Lease and the Deed Plan to reach its decision. The court received the said documents during the examination in chief of DW1 at page 23 of the record of proceedings as follows:

*“Court: Photocopy of the land in dispute is hereby tendered in court for identification purposes as Exhibit DID1.*

*Counsel: Apart from the certificate of title, there is a lease awarded by Mbale District Land Board.*

*Court: Photocopy of the lease is hereby tendered in court for identification purposes as DID11.*

*Counsel: We have a detailed plan for Moono Neighbourhood. This is the recent plan of 2007.*

*Court: Mooni neighbourhood detailed plan is hereby tendered in court as D1DIII”.*

1. From the above quotation of what transpired in court, it is evident that the said documents were brought before the court for identification purposes only. It is established law as was held in the cases of ***Des Raj Sharma versus Reginam (1953) 20 EACA 310 and Amer versus Republic (1972) E. A 324***, which were cited with approval by the supreme court in the case of ***Okwonga Anthony versus Uganda (S. C. CA. No: 20 of 2000)***, that there is a distinction between exhibits and articles brought for identification. 2. It is trite that exhibits should be confined to articles which have been formally proved and admitted in evidence and it follows therefore that once a document has been marked for identification, it must be proved. The witness must produce the document and tender it in evidence as an exhibit after laying a foundation for its authenticity and relevance to the facts of the case. The document then becomes part of the court record and if it is not admitted in evidence as an exhibit, it only remains as hearsay evidence, which is untested and unauthenticated. 3. At page 3 of his judgement, the trial magistrate regarded the photocopy of the certificate of title availed to him by the respondent as (DID1), the photocopy of the lease (DIDII) and the photocopy of detailed plan for Mooni neighbourhood dated 2007 (DIDIII) as exhibits. This was obviously erroneous. 4. Having said that, the only evidence that remained available for consideration by the trial magistrate was testimonies of the witnesses. The respondent’s witnesses testified that the respondent was the registered proprietor of the suit land and that before obtaining the certificate of title for the said land in 2004, the respondent held a lease from 1994. As I have already mentioned above, the photocopies of the said lease and certificate of title produced at trial were not admitted in evidence and are not exhibits. They cannot be used by court to support the testimonies of the respondent’s witnesses. 5. The respondent’s witnesses also testified that the respondent took over the suit land from the Directorate of Water Development in the Ministry of Water, Lands and Environment. They did not adduce documentary proof to corroborate their testimonies especially the crucial transactions of the alleged acquisition of the suit land by the Directorate of Water Development and how it subsequently transferred the land to the respondent. It was DW3’s evidence that the respondent’s officials asked for the relevant documents of legal ownership of the suit land from the above mentioned Directorate, but were informed that no certificate of title for the land existed, except for a survey map, for a survey said to have been carried out in 1935 and which map was in Entebbe. The said survey map, should have supported the testimonies of the respondent’s witnesses concerning when the Directorate of Water Development took possession of the suit land, but that fact remains unknown, as the survey map was never produced in evidence. 6. When probed about how they learnt about the relevant transactions concerning the respondent’s acquisition of the suit land, DW2 admitted that he was not present when the suit land was handed over to the respondent and was also not present when the respondent got hold of the lease title in 1994, while DW3 testified that it was her workmates who informed her about the land dealings that had happened in respect of the suit land before 1992 and that she also educated herself about the same, by reading records in the respondent’s possession. The said records she was referring to, which should have confirmed her testimony regarding the respondent’s title to the land in dispute, were for some strange reason not produced in evidence. In other words, the respondent failed to establish its interest on the suit land. 7. Notably, DW3’s testimony in respect to the information she had obtained from her colleagues, remains hearsay evidence, which is inadmissible and has been rejected by this court, as none of those workmates of hers were called to testify. 8. As for the re-opening of boundaries of the suit land by the respondent, DW3 testified that the said re-opening of the boundaries was done in 2002, although she did not have any report concerning the said activity. Nevertheless, her testimony in that respect was corroborated by DW1 who stated that the respondent requested, Peter Mudebo, one of the staff surveyors of the respondent to re-open the said boundaries. DW1 further stated that the only neighbour who was invited to the reopening of boundaries was the LC1 of Zesui Cell. 9. It is noteworthy that DW1’s testimony was that the suit land is situated in both Isebelle and Zesui Cells. I find it inexplicable that the only LC1 chairperson invited to witness the boundaries reopening by the respondent was the LC1 chairperson of Zesui Cell, despite the respondent’s own evidence that the suit land was located in two villages. 10. DW1 said in his evidence that the appellants were invited to the re-opening of the land as area elders. The veracity of that part of his testimony is unbelievable on account of the thrust of respondent’s main evidence that the appellants have no land anywhere near to the suit land and are mere trespassers on the suit land. It does not make sense to me that trespassers on the suit land suddenly become worthy elders in the same area that they owned no land in fit to witness the respondent’s boundaries reopening. 11. Be that as it may, the appellants deny that they were ever invited for the said re-opening of boundaries. Given that no documentary proof of the boundaries reopening was produced in evidence, to support the respondent’s claims that the alleged event happened and that it was conducted openly, I find the appellant’s evidence more believable. This matter involves a public entity which should have documented the processes of its acquisition of suit land and all other matters in respect of it. It did not do so and if it did, it fell short of its duty of prove its claims to the required standard. Also, the claim that the respondent conducted a public reopening of its boundaries was in my opinion not proved to the required standard, not to mention the fact that no justification for the said reopening up of boundaries was given in evidence. 12. Even if I were to find that the respondent’s claims of having a tittle to the suit land are true, the fact that it obtained the alleged certificate of title of the suit land only in 2004, just after conducting the reopening of boundaries in the absence of the appellants, who were in occupation of the suit land and in the absence of the area local leaders, makes the process in issue questionable. I think that the respondent's evidence about its re-opening of boundaries, corroborates the appellants' evidence that the respondent started interfering with their possession of the suit land in or about the year 2000. Since DW3 admits that the respondent fenced the suit land after acquiring its certificate of title in 2004, this fact also further supports the appellants' evidence of having been in possession of the suit land, which they inherited from their ancestors, who held it from time immemorial, until the respondent started interfering with their possession and stopped them from cultivating it. 13. This takes me to the examination of the proceedings at locus in quo. It is the law that before a locus in quo visit by a court, it should ensure that all parties, their witnesses and advocates (if any) are present during the visit ***(***See ***Directive No. 3(a) of Practice Direction Issue No. 1 of 2007)***. The trial magistrate visited the suit land on 11th March 2012. Parties’ counsel were not present. The record shows that the last witness testified in court on 17th February 2012 and the trial magistrate directed that the locus in quo visit would be held on 11th March 2012 at 11:00 am. There is a letter on record dated 29th February 2012 addressed to the chairman LC1 Isebelle Cell, informing him that the court would visit the suit land on 11th March 2012. The said letter was copied to the parties and their respective counsel. Whilst there is no proof of service of the same to counsel Hope Namisi for the appellants and counsel Faith Namono for the respondent, both counsel were present in court when the court directed that locus in quo would be visited on 11th March 2012 . They chose not to appear on the said date. Even so, the court allowed witnesses who testified at locus to be cross-examined. From those facts, no irregularity in regard to the participation of the parties at locus in quo exists. 14. A trial court is also mandated to record all proceedings at locus in quo and record any observations, views, opinions or conclusions of the court, including the drawing of a sketch map, if necessary. ***(***See ***Directives No. 3 (e and d) of the Practice Direction Issue No. 1 of 2007)***. Although proceedings were recorded in this case, some phrases in the record are incomprehensible as one cannot make out what is meant by the said phrases recorded and whether what is attributable to some witnesses are the court’s observations. 15. The purpose of visiting the locus in quo is well established. It is to check on the evidence of the witnesses and not to fill the gaps in their evidence for them, lest court runs the risk of turning itself into a witness in the case. ***(***See ***De Souza versus Uganda ([1967]1 EA 784 (HCU))***. The visit is meant to clarify the evidence already in court to enable the trial court understand the evidence better. A locus in quo visit is also intended to harness the physical aspects of the evidence in conveying and enhancing the meaning of oral testimony and therefore must be limited to an inspection of the specific aspects of the case as canvassed during the oral testimony in court and testing that evidence on those points only ***(***See ***Odongo versus Ochama Rajab Civil Appeal No. 119 of 2018).*** 16. From my understanding of what happened at locus in quo, the following errors were made by the court: 17. The learned trial magistrate did not guide the parties to show the court the extent of their respective interests. Despite the respondent’s evidence that the suit land was surveyed and the boundaries re-opened, DW1, its witness at locus, only showed court one mark stone of the boundaries of the suit land and not the entire extent of the land. In the court’s map, there is a line drawn from the south to the southwest of the map, showing that a water reservoir is situated somewhere in the south west, without showing the exact location of the water reservoir. Along that said line is written the statement:

*“Pipe. Washout 17 km Class D Steel pipe. Manafwa 17 km Mbale Tororo Rd.”*

That statement remains unclear, as none of the witnesses testified about it. The trial magistrate did not explain his observations regarding the said pipe and its relevance to the case. However, since he did not refer to that pipe anywhere in his judgement, it can only be concluded that the said finding at locus in quo was of no evidential value.

1. Apart from the unchallenged evidence concerning the 1st appellant’s great grandfather’s grave, the deceased persons in the other graves mentioned at locus in quo by DW1 and 3rd appellant were not identified. 2. The trial magistrate did not confirm the acreage of the suit land on the sketch map, which he should have done, to establish the relevant interests of the parties, particularly given the discrepancy in acreage given by DW1 in his’s testimony who said that the suit land measures 1.813 hectares, while the 3rd appellant stated in his testimony that it actually measures 14 acres (which is the equivalent of 5.666 hectares); 3. It was also necessary for the court to establish, given the conflicting evidence of the parties, if the suit land is located in Isebelle Cell as per the appellants’ evidence or in both Isebelle and Zesui Cells as per the respondent’s witnesses; 4. The sketch map is vague and undecipherable. There is no key to the map and the features mentioned in the evidence of the parties are not indicated on the said map, including the location of graves, the 1st appellant’s palm trees, houses of the appellants and their crops, the water treatment plant, the chain linked fence mentioned by witnesses and the perimeter wall with staff houses of the respondent’s staff as per the respondent’s evidence. In the southern part of the map are coffee and banana trees, a new house, bricks, and an access road. The owners of those crops and the new house remain unknown from the court’s findings. There is also a church in the south east but there is no indication whether or not it is within the disputed land. 5. The bottom line is that sketch map is incomplete. It does not have a key to explain it and no report of court’s visit to the suit land was made. In effect, the trial magistrate’s sketch map is inadequate. 6. Most importantly, there is nothing on record to show that Rajab Nambasi, the new witness who was apparently called by the court at locus was put on oath before testifying or that the other witnesses who testified were sworn before the locus visit were reminded of their oath. 7. It is the practice of the court at locus to remind witnesses that they are still on oath, rather than have them take a fresh oath. In the case of ***De Souza versus Uganda (supra), Sir Udo Udoma*** CJ held:

*“In the present case it would have been perfectly in order for the learned trial magistrate … to have decided to view the locus in quo and to check on the evidence already given by witnesses and thereat to makes note of what witnesses who had already given evidence might point out to him, in which case he would of course remind them of their oath.”*

1. In this case, Rajab Nambasi, a new witness who testified at locus apparently did so without taking the oath as that fact of his being sworn was not recorded. Nonetheless, this anomaly is not detrimental to trial magistrate’s findings, since he did not rely on the said Rajab’s evidence in arriving at his decision. 2. There is nothing on record to show that any of witnesses were reminded that they were still on oath. In the circumstances, this court cannot accept or rely on the findings of the trial magistrate at the locus in quo. 3. The question which remains is whether in the absence of locus evidence, there is no sufficient evidence remaining on the record to determine this appeal. In the case of ***Turyahikayo James & 2 others versus Ruremire Denis HCCA No. 43 of 2010***, it was held in effect if the evidence obtained at locus in quo is disregarded, but there is other evidence on record, sufficient to determine the rights and obligations of the parties, no miscarriage of justice will be occasioned in the reliance on that other evidence alone. 4. This court has already found that the respondent failed to adduce documentary proof at the trial to establish the existence of a lease allegedly obtained in respect of the suit land by its predecessors in 1935, the survey reports of a survey it carried out around 2002, the minutes of a meeting held between the appellants and the respondent before the Mbale RDC and the certificate of title of the suit land it allegedly obtained in 2004. It is also the court’s finding that the evidence of the respondent’s witnesses regarding the manner in which the suit land is said to have passed to it from the Directorate of Water Development is hearsay. 5. The fact that the respondent conducted the survey of the boundaries in a clandestine manner, lends credence to the appellants’ evidence that the respondent trespassed on their respective portions of the suit land. 6. Thus, even if the trial magistrate had properly conducted locus by swearing witnesses before their testimony was received and properly drawing the sketch map indicating the interests of the parties with boundaries of adjoining lands, as well as the relevant features properly shown, in addition to recording the court’s observations clearly, this court would still have not accepted the respondent’s account on how it acquired the suit land, having found that the evidence it adduced at the trial is too insufficient to meet the threshold of *“the balance of probabilities”.* 7. On the other hand, I find that the appellants’ evidence of ownership of part of the disputed land is coherent. The 1st appellant’s evidence is that Bungokho Water Works existed in the 1950s until the respondent took over its assets in 1970 and started operating it. His evidence is further corroborated by the 2nd appellant who confirmed that the respondent's structures existed next to the suit land by 1950 and that the land initially occupied by the respondent was grabbed from him in 1950. The appellants also testified that at the time of their testimonies, no one was using the suit land, a fact admitted by the respondent’s witness DW1 when he testified that the respondent intended to use the suit land for the extension of the water treatment plant. 8. Therefore, in my opinion, the evidence adduced at the hearing proves that the appellants are the owners of their respective portions on the suit land, and are in possession of the same, unlike the respondent who failed to establish its claim to the suit land. 9. In response to the respondent’s written statement of defence, where it stated that appellants’ actions were barred by limitation and that therefore, it would move the court to strike it out, no evidence was brought by the respondent to show how the appellants were barred by limitation. 10. In any case, the appellants brought the suit against the respondent in the lower court in 2008, seven (7) years after the respondent reportedly trespassed on the suit land in 2001 according to the appellants’ testimony. This is within time and is not a breach of the prescribed limitation period provided for in ***Section 5 of the Limitation Act,*** ***Cap 80*** which provides:

*“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.”*

1. In the result, I respectfully find that the trial magistrate did not properly evaluate the evidence on record, brought by all parties concerning their respective claims of ownership of the suit land. Therefore, ground 1 succeeds.

Ground 2 - The learned trial magistrate erred in law and fact when he failed to find that the respondent had trespassed on the appellants’ land

1. The Supreme Court in the case of ***Justine E. M. N. Lutaaya versus Sterling Civil Engineering Co. SCCA No.11 of 2002*** held that trespass to land occurs “*when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person’s lawful possession of that land*”. 2. In that case, it was also decided that a tort is committed not against the land, but against a person who is in actual or constructive possession of the land. 3. In order to succeed in a trespass claim, one must prove: 4. That the disputed land belongs to the Plaintiff 5. That the Defendant had entered upon it, and 6. That entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land. **(**See ***Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CA No. 4 of 1987)***. 7. Applying the principles in case of ***Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd (supra)***, to the facts of this case, I find that the respondent trespassed on the appellants’ land. The appellants testified that the respondent’s officials accompanied by police officers trespassed on the suit land between 1999 and 2000, stopping them from cultivating crops on the suit land but allowing them only to graze their cattle on the land. The appellants’ evidence was supported by the respondent’s witnesses through their evidence that the re-opening of boundaries on the suit land was done around 2000 – 2002, when the suit land was surveyed. 8. Though DW1 testified that it was the appellants who had trespassed on the suit land in 2000 and that the matter was reported to the area RDC who failed to resolve it, his evidence is not corroborated by any other witness and no documentary proof of this meeting was produced. 9. On the other hand, PW4 the LC1 chairman of Isebelle Cell, testified that he had seen the appellants on the suit land since he became the chairperson of Isebelle Cell in 1986 and that the respondent was also in existence in his Cell in 1986. His evidence lends credence to the appellants’ evidence that the respondent’s land is next to the disputed land. The testimony of the area chairperson, supports the appellants’ version of events, particularly the fact that the appellants have owned their respective pieces of land, which land the respondent annexed when it conducted its clandestine opening up of boundaries without involving them or the area executive council. 10. About the entry on the suit land being unlawful, the respondent’s witnesses stated that they entered on the suit land to survey the land and the appellants were not invited to attend that survey. Their evidence was that the LC1 chairperson of Zesui Cell was the only neighbour of the suit land who was invited to attend the survey. The survey reports were not, as I have already conversed above, produced in evidence, despite DW1’s testimony that the said reports were in the respondent’s possession. 11. Since the appellants have already shown this court that they own the suit land customarily, it goes without saying that by surveying the said land without the permission of the appellants, the respondent’s agents’ entry on the suit land was unlawful. 12. Consequently, this ground of appeal succeeds.

***Ground 4 - The decision of the trial magistrate has occasioned a miscarriage of justice***

1. A decision is said to have occasioned a miscarriage of justice if there has been misdirection by the trial court on matters of fact and the law relating to the evidence tendered as where there has been unfairness in the conduct of the trial court resulting in an error being made. ***(***See ***Matayo Okumu versus Fransiko Amaudhe and 2 others [1979] HCB 229)***. 2. As I have already discussed under the 1st ground of this appeal, the trial magistrate wrongfully found: 3. That the appellants were not customary tenants; 4. That ***Sections 24(1) (a) of the Public Land Act, 1969 and Section 5(1) of the Land Reform Decree, 1975*** apply to this case and the appellants should have acquired the consent of the Mbale Municipal Council to acquire the suit land, without evidence having been adduced to establish the suit land was located in Mbale Municipality at the time the respondent’s predecessor is said to have acquired it; 5. That documents tendered for identification were exhibits and relied on them to find that the respondent was the registered proprietor of the suit land; 6. That the respondent was the only person in possession of the suit land based on certain observations he made at locus in quo, which observations he did not clearly record during his visit to locus. 7. From the aforementioned, I do agree with counsel for the appellants that there was a misdirection by the trial court on matters of fact and the law which occasioned a miscarriage of justice to the appellants. 8. In the result, this appeal is successful with costs in this court and in the lower court awarded to the appellants.

I so order.

Susan Okalany

JUDGE

12/9/2022