Ssenkambwe and Others v Rwakaitkara (CIVIL APPEAL NO.095 OF 2022) [2025] UGHC 234 (3 February 2025)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **CIVIL APPEAL NO.095 OF 2022 (Arising from C. S No.021 of 2018)**

### **1. SSENKAMBWE ZEDEKIA 2. NYAKAISIKI ALICE 3. MAWEJJE MICHEAL ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

#### **VERSUS**

**RWAKAIKARA APPOLLO :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** *[Appeal from the Judgment and orders H/W Mfitundinda George, Chief Magistrate Hoima in C. S No.21 of 2018 delivered on 25/11/2022]*

*Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **JUDGMENT**

## **Background**

- [1] The Appellants/plaintiffs' claim against the Respondent/Defendant in the lower court was for trespass, a permanent injunction to restrain the Respondent/Defendant or his agents from trespassing onto the suit land comprised in **Block 236, plot 2, Bugangaizi, Kibaale District,** demolition order for the illegal structures, mesne profits, punitive and general damages plus costs of the suit. - [2] It was the Plaintiffs' case that they inherited the suit land from their grandfather, the late **Zirimu** who acquired it by way of purchase from its registered proprietor, **Zakaliya Tibasoboke** in 1942. - [3] That their grandfather, **Zirimu** died before transferring the land into his names and when the Plaintiffs commenced transfer of the land into their

names, they found that the land had been transferred into the names of **Musa Nsaho** who however, with the intervention of the Registrar of titles, F/Portal, he accepted that the title was fraudulently transferred into his names and eventually handed over the certificate of title to the 1st Plaintiff, **Ssenkambwe Zedekia**. Consequently, the Plaintiffs later got registered on the land as the registered owners.

- [4] It was in or about 2013 that the Respondent trespassed into the suit land and constructed thereon illegal structures and carried out cultivation activities. The Plaintiffs contend that despite repeated demands for the Respondent to vacate the land, he refused to do so and as a result, they have suffered inconvenience for which they hold the Respondent liable in damages. - [5] On the other hand, the Respondent averred that he acquired kibanja interest on the suit land between **2010** and **2015** at various intervals from various tenants by occupancy thereon and has since utilised the same uninterrupted. - [6] Upon hearing of the suit, the trial Magistrate found and resolved that the Respondent was a bonafide occupant on the suit land with an equitable kibanja interest thereon and therefore, he was not a trespasser. The Plaintiffs' suit was accordingly dismissed with costs. - [7] The Appellants were dissatisfied with the judgment and the orders of the learned trial Chief Magistrate and preferred the instant appeal on the following 3 grounds of appeal: - *1. The learned trial Chief Magistrate erred in law and fact when he failed to properly evaluate the evidence on the record thereby arriving at a wrong and erroneous decision that the Respondent has interest as a lawful/banafide occupant in the suit land which occasioned miscarriage of justice.* - *2. The learned trial Chief Magistrate exhibited bias when he only considered the evidence of the Respondent ignoring the evidence of the Appellants thereby arriving at a wrong decision that occasioned a miscarriage of justice to the Appellant.*

*3. The learned trial Chief Magistrate erred in law and fact when he failed to find that the Respondent violated the injunction order that was issued by the court and this occasioned a miscarriage of justice to the Appellants.*

## **Duty of the 1st Appellate Court**

- [8] This court being a first appellate court, its legal obligation is to re-valuate all the evidence that was available before the trial court and make its own inference on all issues of law and fact. In case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions, **Fr. Narcensio Begumisa & Ors Vs Eric Tibebaga, SCCA No.17 of 2002.** - [9] In the instant case, this court has therefore to bear in mind that its duty is to rehear the case and reconsider all the materials that were before the trial court by subjecting the evidence as a whole to scrutiny and make up its own mind.

# **Counsel legal representation**

[10] In his appeal, the Appellants were represented by **Mr. Robert Hatega** of **M/s Baryabanza & Co. Advocates, Hoima** while the Respondent was represented by **Mr. Semambo Joseph** of **M/s Mugarura, Kwarisiima & Co. Advocates, Kampala.** Both counsel filed their respective submissions for consideration in the determination of the appeal.

# **Grounds of the appeal**

[11] This court shall consider both **grounds 1 & 2** together because both grounds revolve around how the trial Magistrate evaluated the evidence before him to arrive at the decision that the Respondent has interest in the suit land as a lawful/bonafide occupant.

## **Grounds 1 & 2: Evaluation of Evidence**

- [12] Counsel for the Appellant submitted that the learned trial Magistrate based his findings on the provisions of **S.29 (2) and 5 of the Land Act** but wrongly applied the law on bonafide purchase. That **Ben Walakira** (DW4) from whom the Respondent claimed interest adduced no evidence that he was a bonafide occupant upon giving conflicting evidence during cross examination as regards whether it is his father and **Nsaho** or it was **Yokana Mundu** and **Omutongole Chief** who allowed him to stay on the land. That further, there was no evidence that the said **Yokana Mundu** was the registered owner of the suit land in 1971 when he allegedly allowed **DW4** to use the suit land or that **DW4** had utilised the suit land for 12 years or more before the 8/10/1995 when the constitution came into force. - [13] Lastly, counsel submitted that the learned trial Magistrate only considered the evidence of the Respondent yet the Appellant produced 4 witnesses. That the failure by the learned trial Magistrate to consider the evidence of the Appellant while only looking at the evidence of the Respondent prejudiced the Appellants because if he had looked at the evidence of the Appellants vis a vis that of the Respondent he would have found that indeed there was no title in the names of **Yokana Mundu** but the title that was in existence before **Musa Nsaho** (DW2) who was registered in 2002, was that of **Zakaria Tibasoboke** as per **D. Exh.2**. - [14] Counsel for the Respondent on the other hand submitted that **Walakira Ben** (DW4) gave evidence that he had occupied the land from 1971 after requesting the parish chief (Omutongole) to allow him utilize the land and was forwarded to **Yokana Mundu** as the owner who allowed him to stay on the land. That the evidence of **DW4's** occupation and utilization of the land from 1971 was never challenged by the Plaintiffs/Appellants and that from 1971 up to 8/10/1995 when the constitution came into force, it is approximately 24 years thus **S.29(2) of the Land Act** was never misapplied by the trial Magistrate as counsel for Appellants claimed. - [15] As regards the alleged contradiction of **DW4** regarding how he got to be on the suit land, counsel submitted that **Zakaria Tibasoboke** sold the land to

**Yokana Mundu** who never transferred the land into his names but upon his death, later, his son **Musa Nsaho** (DW2) got registered on the land and then transferred it to the plaintiffs.

- [16] As regards the alleged bias by the trial Magistrate during the evaluation of the evidence before him, counsel submitted that the issue for determination was whether the defendant had an interest in the suit land and as such, rightly assessed the evidence presented by both parties and in his decision, he showed how the evidence presented by the defendant/Respondent was satisfactory to prove his interest in the suit land. He therefore concluded that the learned trial Magistrate was not biased in whatever way and thus this ground of appeal should fail. - [17] I have in detail considered the submissions of both counsel. Upon perusal of the proceedings in the lower court, I find that it is not in dispute that the Respondents acquired interest in the suit land from **Ben Walakira** (DW4) and **Musa Nsaho** (DW2) who at the time was the registered proprietor. The plaintiffs however contend that the suit land had other illegal occupants who included **Ben Walakira** (DW4) but when they wrote to them to vacate in 2013 **(D. Exh.3)** while leaving, **Musa Nsaho** (DW2) and **Ben Walakira** (DW4) sold their respective pieces of land on the suit land to the Respondent. - [18] I have perused all the documents, **D. Exh. II a - D. Exh. XXVIII**, they are bibanja sale agreements made in favour of the Respondent during 2010 and 2015, the period the plaintiffs were reclaiming their land from **Musa Nsaho** (DW2), a fact the Respondent admitted during cross examination. The bibanja sale Agreements include those executed by **Walakira** (DW4) and his children and others who were on the suit land selling their interests to the Respondent. It is apparent that this massive sale of the bibanja as per the above numerous sale agreements was precipitated by the fact that the Appellants/plaintiffs had embarked on the recovery of their land, a fact the Respondent again admitted during cross examination. Some of the agreements for example **D. Exh. XXVII** is neither dated nor does it have the endorsement of the Respondent as the purchaser and **D. Exh. XXVIII** dated 14/11/2013 where **Walakira Ben** (DW4) purport to had sold a piece of land

and house on the suit land to the Respondent does not bear the Respondent as the purchaser while **D. Exh. XXV** is not a sale agreement but sort of a "mortgage" or "exchange" of land with no meaning or clarity but in his evidence, the Respondent claim that they refer to his purchase of their respective bibanja interest.

[19] It is apparent that the Respondent knew about the claim of the Plaintiffs/Appellants for their land from **Nsaho Musa** (DW2) but decided or opted to purchase the various bibanjas from all those that left the suit land believing and hoping that he had capacity or would have capacity to defend their acquisition. During cross examination, at **P.38 of the typed proceedings**, the Respondent stated thus:

> *"Yes, by 2013, the plaintiffs [Appellants] were claiming ownership of the suit land…..yes, I received a letter from the plaintiffs demanding that I and others should vacate the suit land…. The rest left the suit land. Those who left, some sold to me. I also bought from others. By the time I bought the suit land was being claimed."*

- [20] According to **Ssendegeya Serepio** (PW3) aged 70 years and the LC1 chairman of the area, he knew the suit land as belonging to the Appellants because he grew up seeing their grandfather, **Zirimu** in occupation of the suit land. That both the said **Zirimu** and his wife were buried on the suit land, a fact **Musa Nsaho** (DW2), from whom the Respondent claim to had derived interest, admitted during cross examination. That however, when the Appellants caused for the reopening of the boundaries of the suit land for purposes of ascertaining trespass on the land and those outside, all those who had trespassed on the suit land left except the Respondent who is now bringing other people on the land. - [21] In my view, it is apparent that all those people who were on the suit land and left it upon being asked to vacate, they must have known and acknowledged that the suit land belonged to the Appellants and were trespassers and therefore, the Respondent, as he admitted during cross examination, purchased their bibanja interests well knowing that the

vendors were trespassers. The trespassers could not definitely pass any valid interest in land to the Respondent.

- [22] In his defence, the Respondent claim that he purchased the bibanja from occupants when the land was registered in the names of **Musa Nsaho** (DW2). However, according to the 1st Plaintiff/Appellant **(PW1), Musa Nsaho** (DW2) had fraudulently transferred the title into his names, a fact **DW2** conceded to upon the intervention of the Registrar of titles and he surrendered the title and signed transfer forms of the land in favour of the Appellants, **P. Exhs. 2 & 3**. **Nsaho Musa** (DW2), however claim that he was intimidated or coerced to surrender his title. I nevertheless find that neither the **Respondent** nor **DW2** adduced proof of the alleged intimidation or coercion. - [23] **Nsaho Musa** (DW2) further claimed that he had purchased the land from a one **Yowana Rubuga Nkuna,** the administrator of the estate of the late **Zakaliya Tibasoboke**. Again he adduced no proof of such a purchase being alleged. His evidence contradicts that of **Walakira Ben** (DW4) who claimed that he occupied the suit land in 1971 with the permission of **Musa Nsaho's** father, **Yokana Mundu** who owned the land. Still there is no evidence that **Yokana Mundu** ever owned the suit land. - [24] On the other hand, the Appellants adduced credible evidence of how they came to acquire the suit land. According to the 1st Appellant/PW1 and her mother, **Kiiza Margret** (PW4), **Zirimu** purchased the suit land from the registered proprietor **Zakaliya Tibasoboke** on 14/6/1942 as per the purchase agreement marked **D. Exh.1**. The old title in the names of **Zakariya** is **D. Exh.2.** That upon his death, **Zirimu** left the title with **PW4's** husband. When **Zirimu's** grandchildren, the Appellants, commenced registration of the suit land into their names, they found that **DW2** had fraudulently transferred it into his names. That nevertheless, with the intervention of the Registrar of titles, the land was subsequently registered in the Appellants' names **(P. Exh.1).** - [25] The entire of the above evidence of the Appellants was not challenged by the Respondent, **Walakira Ben** (DW4) who purportedly sold his piece of

kibanja on the suit land to the Respondent, as already observed, the purported executed sale agreement **(D. Exh. XVIII)** does not bear the Respondent as the purchaser. 2ndly, **Walakira's** claim that he occupied this kibanja in 1971 with the permission of the **Omutongole** and **Yokana Mundu,** the father of **Musa Nsaho** (DW2) as the owner is all without proof. He contradicted the evidence of **Musa Nsaho** (DW2) who stated that he purchased the land from a one **Yowana Rubuga Nkuna**. Though the old man, L. C1 chairman of the area (**PW3),** during cross examination got confused and switched to support the Respondent that **Walakira** (DW4) came to the suit land in the 1970s, there is no evidence to support it. **PW3** appear to had gotten confused by counsel for the Respondent during cross examination thus the switch to the Respondent's side. This is explained when in the same breath during cross examination he stated that he did not know the year when he first saw the Respondent on the suit land.

- [26] The chairman **(PW3),** despite the hitches above, in conclusion of his cross examination confirmed that though he endorsed on the sale agreements of the bibanja on the suit land in favour of the Respondents, he did not witness any of the transactions. The Respondent used to merely bring the agreements to him for endorsement. 2ndly, he confirmed that the suit land belonged to the Appellants and that **Musa Nsaho** (DW2) had a forged title to the suit land. - [27] As per the above, it is evident that the Respondent used to take advantage of the chairperson's old age to do whatever he wished. **Musa Nsaho** (DW2) as per his admission before the Registrar of titles in Fort portal had no valid interest in the suit and therefore had none to pass to the Respondent through sale. - [28] Upon perusal of the trial Magistrate's judgment, indeed, I find that during the evaluation of the evidence, he only considered the evidence of the Respondent thus failed to evaluate the entire evidence before him. Had the trial Magistrate evaluated the entire evidence before him, he would have found that there is no evidence that the father of **Musa Nsaho** (DW2), **Yokana Mundu** never owned the suit land and **DW2** never derived any interest in the suit land from him and lastly, that there is no proof of

occupation of the suit land by **Walakira Ben** (DW4) since 1971 to qualify as a bonafide occupant as provided under **S.29(2) of the Land Act.**

- [29] In conclusion, upon proper evaluation of the entire evidence on record, I find that the suit land initially belonged to a one **Zakaliya Tibasoboke** as the registered proprietor **(D. Exh.2)** which he passed to the Appellants' grandfather **Zirimu** by way of sale **(D. Exh.1)** and though **Musa Nsaho** (DW2) had fraudulently transferred the land into his names, with the intervention of the Registrar of titles, the land was subsequently registered in the names of the Appellants. All the occupants who were found to have been trespassers on the suit land, vacated the land save for the Respondent who knowingly purchased their invalid interests on the land. - [30] For the above reasons, I find **grounds 1 & 2** having merit and they accordingly succeed. - **Ground 3: The learned trial Magistrate erred in law and fact when he failed to find that the Respondent violated the injunction order that was issued by the court and this occasioned miscarriage of justice to the Appellants.** - [31] It is apparent from the record that court issued the order for a temporary injunction during the hearing of the suit vide **Misc. Application No.20/2020** between the parties. The temporary injunction was not or did not form part of the issues for court to resolve during the final determination of the suit. As a result, I find that the trial Magistrate had no obligation during the final determination of the suit to make a finding on whether the Respondent violated the injunction order or not. By the determination of the suit in favour of the Respondent, the temporary injunction order found itself overtaken by events. The **3 rd ground of appeal** is found devoid of any merit and as a result, it accordingly fails. - [32] In conclusion of this appeal, this court having found **grounds 1 & 2** in the affirmative, it follows that the appeal generally succeeds with the following orders:

- a) The judgment and order of the Chief Magistrate in **C. S No.21 of 2018** are accordingly quashed and set aside. - b) **A declaration** that the Appellants as registered proprietors are the rightful owners of land comprised in **MRV 530, Folio 5, Bugangaizi Block 230, Plot 2, Kibaale District.** - c) **A declaration** that the Respondent is a trespasser on the land. - d) **A permanent injunction** restraining the Respondent/Defendant and or his servants and agents and those deriving interest from him repeating and continuing the trespass on the land accordingly issues. - e) **An eviction order** against the Respondent/Defendant, his agents and those deriving interest from him accordingly issues. - f) **General damages**: The Appellants have been denied use of the land and deprived of opportunities that would arise from owning the land. They have also suffered a lot of inconvenience, trauma and stress as a result of the Respondent's conduct. I consider an award of **Ugx 20,000,000/=** appropriate as general damages in the circumstances of this case. - g) **Punitive damages or mesne profits**: The Appellants did not adduce any evidence to justify the grant of either punitive damages or mesne profits and as a result, none is awarded. - h) **Interest**: The general damages shall carry an interest of **18%** per annum from the date of the lower court judgment till payment in full. - i) **Costs of the suit**: Under **S.27 (2) CPA**, costs follow the evident. The Appellants as the successful parties on appeal, they are awarded costs of this appeal and of the lower court.

Dated at Hoima this **3 rd day of February, 2025.**

> **………………………………………… Byaruhanga Jesse Rugyema JUDGE**