Ssenkandwa v Mwalimu and Others (Civil Appeal 33 of 2022) [2025] UGHC 218 (20 April 2025)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA CIVIL APPEAL NO. 33 OF 2022 [ARISING FROM LUKAYA LAND CIVIL SUIT NO. 011 OF 2019]**

**SSENKANDWA LAWRENCE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS**

- **1. MWALIMU BAKER MUTAAWE** - **2. LUYIMBAZI HENRY** - **3. NANTALE SARAH** - **4. NSAMBA ALEX ::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS** - **5. MUNNA LEONARD** - **6. KAWEESI VINCENT** - **7. SSENABULYA GEREALD**

## **Before: HON JUSTICE LAWRENCE TWEYANZE**

## **JUDGMENT**

## **Introduction.**

1. This is an appeal in which the Appellant being dissatisfied with the Judgment and orders of H/W Basajjabalaba Jalia, Magistrate Grade One at the Chief Magistrates Court of Masaka at Lukaya under Civil Suit No.011 of 2019.

# **Brief Background to the Appeal.**

- 2. The Appellant/Plaintiff instituted Civil Suit No.011 of 2019 against the Respondent/Defendant seeking for a declaration of ownership, trespass, vacant possession or eviction order, general damages, mesne profits, permanent injunction, restoration of the forest cover, interest and costs of the suit. The Appellant/Plaintiff averred that in 1991, he bought approximately 15 acres of land from Zakalia Lukwago and an agreement was executed. That the Plaintiff planted various crops on the said Kibanja and amongst them were seasonal and perennial crops, coffee and banana plantations. That the Plaintiff also planted trees such as avocado, guava amongst others. That in 2009, the Plaintiff proceeded to apply for a Certificate of Title of freehold for his Kibanja, where upon he sought for signatures of his immediate neighbours as proof that the land/Kibanja being applied for was his which signatures he got and among the people that signed are some of the Defendants. - 3. That, due to lack of funds, the Plaintiff did not carry out the process immediately. That around 2017, he applied for a fresh grant of the freehold on his customary Kibanja.

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That however, the Defendants who had seconded him previously declined to do so because they had hatched plans to forcefully takeover his Kibanja by encroaching on it through cultivation, setting up buildings and cutting trees.

- 4. The Respondents/Defendants filed a Written Statement of Defence and denied all the allegations. The 1st Defendant (Kibuule Yosam) averred that the Plaintiff did not buy the disputed land in the 1970's. That the 1st Defendant acquired the suit land from the late Erifazi Karimunda and that the boundaries are known. The 1st Defendant further stated that, the Plaintiff altered the boundaries. The 2nd Defendant (Muwalimu Beka Mutaawe) averred that, the dispute which arose between him and the Plaintiff was resolved amicably on the 9th February 2019 and that there is no cause of action against him. The 3rd Defendant (Luyimbazi Henry) averred that he never encroached on the Plaintiff's Kibanja. The 4th Defendant (Joseph Kavuma) averred that he never encroached on the Plaintiff's Kibanja measuring approximately 1.5 acres. - 5. The 5th (Nantale Sarah), 6th (Nsamba Alex), and 8th (Kalyango Meddi), Defendants averred that they never encroached on the Plaintiff's Kibanja nor harvested full grown trees or charcoal therefrom. The 9th Defendant (Kawesi Vincent) averred that he never encroached on the Plaintiff's Kibanja. The Defendants averred that the Bibanja in question belong to them. The Defendants averred that they have never demarcated their Bibanja into parts for sale or even brought any prospective buyers. The Plaintiff and the 8th Defendant resolved the matter amicably and entered consent. The matter only proceeded against the other Defendants. The Trial Magistrate found in favour of the Respondents/Defendants. The Appellant being dissatisfied with the said Judgment filed this appeal.

# **The Grounds of Appeal.**

- 6. The Appellant raised three (3) grounds of appeal in his Memorandum of Appeal namely that: - *1. The Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby reaching a wrong decision.* - *2. The Trial Magistrate erred in law and fact when she declared that the 2nd, 3rd, 5th, 6th, 7th, 9th and 10th Defendants are not trespassers which the Appellant does not agree with.* - *3. The Trial Magistrate erred in law and fact when she declared the 1st and 4th Defendants as the only trespassers yet the Kibanja in issue is currently occupied by all the Respondents hence all Respondents are trespassers.*

# **Representation and hearing.**

7. The Appellant was represented by M/s Kaggwa & Partners Co. Advocates while the Respondents were self-represented. At the hearing, the parties were present and only the Appellant had Counsel. The parties were directed to file written submissions but only Counsel for the Appellant filed submissions. None of the Respondents filed submission and if any was filed, the same was not brought to my attention at the time of this Judgment. This decision has been made without submissions from the Respondents.

# **Duty of the first appellate Court.**

8. The duty of a first Appellate Court is to scrutinise and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).*

# **Determination of the Appeal.**

- 9. I have read the record of the lower Court, the judgment, pleadings, witness statements and submissions by the parties to this appeal. I have also read the authorities cited. This being a first appeal, Court is required under Section 80 of the Civil Procedure Act Cap 282 (Revised Edition) to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. See: *F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006* (supra). - 10. I shall therefore proceed to re appraise the evidence and come to my conclusion as required by law. In so doing, I am of the view that although the Memorandum of Appeal sets forth 3 grounds of appeal, the real dispute actually relate to the following two questions a determination of which will dispose off this appeal: - *1. Whether the Respondents to this appeal are trespassers on the suit land.* - *2. What remedies are available to the parties?* - 11. Court shall proceed to answer the above questions in turn. 1. *Whether the Respondents to this Appeal are trespassers on the suit land***?** - 12. The Appellant and the Respondents all lay claim to the suit land, wherein the Appellant claims that that the Respondents are trespassers on the suit land. On the other land, the Respondents denied being in trespass. The Trial Magistrate at pages 5-

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8 of the Judgment concluded on the issue of trespass with a finding that no trespass had been proved against the 2nd, 3rd, 5th, 6th, 7th, 9th, and 10th Defendants, who are now the Respondents. The Trial Magistrate stated as follows: -

### *"2nd Defendant - Mwalimu Baker Mutaawe…….*

*The Plaintiff told Court that he sold the 2nd Defendant land measuring 78ft by 60ft and they executed an agreement dated 23rd November 1993 and that the 2nd Defendant in February 2019 encroached 10ft by 13ft into the Plaintiff's land.*

*During defence hearing by DW2, the 2nd Defendant told Court and confirmed that he purchased the suit land from the Plaintiff in 1993 and an agreement was executed to that effect. See: Exhibit D1 DW2 told Court that the level of encroachment he talks about is not there. The Plaintiff did not tender in Court any survey report about the extent of encroachment by the 2nd Defendant. So the 2nd Defendant is not a trespasser on the suit land as alleged by the Plaintiff. No evidence has been presented.*

### *3rd Defendant - Luyimbazi Henry*

*The Plaintiff stated that, the 3rd Defendant on or about February 2019 encroached on 9ft by 20ft in the Plaintiff's Kibanja by constructing rental houses there on with a view of taking over the suit land or feigning ignorance of their boundaries.*

*During defence hearing DW3 Luyimbazi Henry told Court that he bought the suit land from Semaganda George on the 6th January 2019 and an agreement was executed to that effect. See: Exhibit D2. He told Court that his neighbours a Mwalimu Baker and Mayanja Lawrence and that his Kibanja has no land tittle.*

*The Plaintiff did not show any survey report to the extent of encroachment. No pictures were presented to Court to show the extent of trespass or construction of rental houses. Trespass has not been proved against the 3rd Defendant Luyimbazi Henry.*

*5th, 6th, 7th Defendants - NANTALE SARAH, NSAMBA ALEX, NUNNA LEONARD RESPECTIVELY*

*The Plaintiff averred that the 5th 6th, 7th Defendants for over 2 years have been harvesting trees and burning charcoal from the suit Kibanja and have harvested over 170 sacks of charcoal valued at 25,000/= only per sack. The Plaintiff did not show any evidence to prove this in Court. No trespass was committed by the Defendants. This is a land matter; the extent of trespass has to be shown to Court by how big the land that was encroached on. Court cannot issue orders in vain where the Plaintiff does not show how big the Defendants encroached on the Plaintiff's land.*

#### *9th Defendant - Kawesi Vicent*

*The Plaintiff averred that the 9th Defendant harvested trees and burnt charcoal on the suit land and even encroached on approximately 0.5 Acres of the Plaintiff's Kibanja. In his defence the gth Defendant told Court that he purchased the suit Kibanja in 1985 from the Late Paul Lubega at 120,000/= and that he neighbours Robert Kanuma, Magambo, Katuku Sajabi, Late Joseph Lwakasole and Kalimunda. He testified that that he has been on the suit land since 1985 and he had an agreement to confirm the same. See: Exhibit D8. The Plaintiff did not show any pictures of burnt charcoal and harvested trees on how the 9th Defendant had trespassed on the suit land. No acts of trespass were evidenced since the 9th Defendant confirmed to Court that he owns the suit Kibanja.*

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### *10th Defendant - Senabulya Gerald*

*The Plaintiff averred that the 10th Defendant encroached on his land by cutting down natural forest cover of fully grown trees and planting eucalyptus trees there on. That sometime in 2019, the Plaintiff averred that the 10th Defendant tried to settle with the Plaintiff but all this proved futile and ended up in vain. In his defence, the 10th Defendant told Court that he purchased the suit Kibanja amounting to 2 Acres at a consideration of 900,000/= and an agreement was executed to that effect. See Exhibit D9. The 10th Defendant told Court that it seems the Plaintiff does not know the exact boundaries of the disputed Kibanja. No pictures were shown by the Plaintiff that the 10th Defendant cut down his trees as alleged. No acts of trespass were evident.*

*Court has looked at the entire evidence and the pleadings that were filed by both parties, the real issue in controversy is to ascertain where the Plaintiff stops as per the recommendations of the area land committee at Kyamulibwa Sub County.*

*The neighbors of the Plaintiff as per Land Form 23 and a recommendation from Kyamulibwa sub county area Land Committee as at 11th September 2009 were Kibuule Yosam, Muyimba Ereneo, Kikongolo market, Mutaawe Baker, Ddembe Herman and Kagwa. Without prejudice to the fore mentioned, the Plaintiff did not give a convincing explanation why Kalungu District Land Board did not implement the decisions of the area Land Committee at Kyamulibwa Sub County.*

*Under Section 59(1) (e) of the Land (Amendment) Act 2010, it provides that;*

*"The District Land Board shall cause surveys, plans, maps, drawings and estimates to be made by or through its officers or agents." The Plaintiff did not adduce any evidence in Court to prove that the district Land board at Kalungu failed to execute its mandate under section 59 of the Land (Amendment) Act, 2010.*

*If the recommendations of the area Land Committee were implemented, this controversy would not be in Court. Court takes judicial notice that the recommendations from area Land committee do not lapse."*

## **Analysis.**

- 13. 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. Trespass is committed not against the land, but against the person in actual or constructive possession of the land. (See *Hajji Bumbakali vs. Peter Muhairwe & Ors; Civil Suit No. 036 of 1999*, citing *Justine E M N Lutaaya vs. Sterling; Civil Eng. Appeal No.11 of 2002;)* - 14. A claim for trespass to land can only succeed where the Claimant proves that the disputed land belongs to him/her or has possession; that the Defendant had entered upon it and that the 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. - 15. For the 1st Respondent who was the 2nd Defendant in the lower Court, the Trial Magistrate based on the fact that the Appellant/Plaintiff sold land measuring 78ft by 60ft to the 2nd Defendant and they executed an agreement dated 23rd November 1993

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which is DEX-1. The Plaintiff did not tender in Court any survey report about the extent of encroachment by the 2nd Defendant, and as such the 2nd Defendant is not a trespasser on the suit land as alleged by the Plaintiff, and no evidence was presented. I have looked at the record of the lower Court, the Appellant at trial did not lead sufficient evidence to prove that the 2nd Defendant had encroached on the suit land, beyond what he was sold to. Therefore, the Trial Magistrate properly found that the 2nd Defendant was not a trespasser.

- 16. For the 2nd Respondent who was the 3rd Defendant in the lower Court, the Trial Magistrate found that the Plaintiff stated that, the 3rd Defendant on or about February 2019 encroached on 9ft by 20ft in the Plaintiff's Kibanja by constructing rental houses there on with a view of taking over the suit land or feigning ignorance of their boundaries. That DW3 Luyimbazi Henry told Court that he bought the suit land from Semaganda George on the 6th January 2019 and an agreement was executed to that effect, which was DEx2. As rightfully found by the Trial Magistrate, the Plaintiff did not lead evidence to prove that the 2nd Respondent encroached on his land. Therefore, 2nd Respondent is not therefore a trespasser. - 17. For the 5th, 6th, 7th Defendants (3rd, 4th, and 5th Respondents Nantale Sarah, Nsamba Alex, Nunna Leonard), the Trial Magistrate found that the Plaintiff averred that the 5th 6th, 7th Defendants for over 2 years had been harvesting trees and burning charcoal from the suit Kibanja and harvested over 170 sacks of charcoal valued at 25,000/= only per sack. However, the Plaintiff did not lead any evidence to prove this in Court, and therefore the Defendants did not trespass thereon. In land matters, Court cannot issue orders in vain where the Plaintiff does not show how far the Defendants encroached on his land. I have perused the entire record of the lower Court and there is no credible evidence led to prove that the 5th, 6th, 7th Defendants are trespassers on the suit land. The Trial Magistrate properly found that the said 5th, 6th, 7th Defendants are not trespassers. - 18. For the 9th Defendant now the 6th Respondent, Kaweesi Vincent, the Trial Magistrate found that the Plaintiff averred that the 9th Defendant harvested trees and burnt charcoal on the suit land and even encroached on approximately 0.5 Acres of the Plaintiff's Kibanja. In defence the 9 th Defendant told Court that he purchased the suit Kibanja in 1985 from the Late Paul Lubega at UGX 120,000/= and that he neighbours Robert Kanuma, Magambo, Katuku Sajabi, Late Joseph Lwakasole and Kalimunda. He testified that that he has been on the suit land since 1985 and he had an agreement which is DEX-8. The Plaintiff did not show any pictures of burnt charcoal and harvested trees on how the 9th Defendant had trespassed on the suit land. No acts of trespass were evidenced since the 9th Defendant confirmed to Court that he owns the suit Kibanja. The Appellant did not lead evidence at the trial Court to indicate or prove how the 6th Respondent trespassed on his land. I find that the Trial Magistrate properly found so.

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- 19. For the 7th Respondent- Ssenabulya Gerald who was the 10th Defendant at the trial Court, the Trial Magistrate noted that the Plaintiff averred that the 10th Defendant encroached on his land by cutting down natural forest cover of fully grown trees and planting eucalyptus trees there on. In his defence, the 10th Defendant told Court that he purchased the suit Kibanja amounting to 2 Acres at a consideration of UGX 900,000/= and an agreement was executed to that effect marked as DEX9. The 10th Defendant told Court that the Plaintiff does not know the exact boundaries of the disputed Kibanja. There was no evidence led by the Appellant/Plaintiff at the trial Court to prove that the 7th Respondent was in trespass on the suit land. The Trial Magistrate properly found that the 7th Respondent, who was the 10th Defendant in the lower Court is not a trespasser. - 20. In my view, as properly found by the Trial Magistrate, the dispute was majorly on boundaries and the Appellant failed to prove his boundaries at the trial Court against the Respondents. According to the evidence led in the lower Court, the Appellant/Plaintiff failed to discharge his burden of proof to prove that the 2nd, 3rd, 5th, 6th, 7th, 9th and 10th Defendants are trespassers. It is my finding the Respondents are not trespassers on the suit land. - 21. The above findings consequently dispose off all the substantive grounds of appeal. There is no error by the Trial Magistrate and therefore so her decision is upheld. The Appeal fails and it is hereby dismissed with costs awarded to the Respondents and I make the following orders: - a) The appeal is dismissed. - b) The decision of the lower Court is upheld and shall be enforced. - c) Costs are awarded to the Respondents.

It is so ordered.

Judgment signed and delivered electronically at Masaka this 20th day of April, 2025


**LAWRENCE TWEYANZE JUDGE. 20th April, 2025.**