Sserufusa v Kazibwe (Civil Appeal 22 of 2023) [2024] UGHC 699 (8 July 2024)

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## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MPIGI

### CIVIL APPEAL NO. 022 OF 2023

## SSERUFUSA DANIEL WASSWA.................................

### **VERSUS**

KAZIBWE LAWRENCE...................................

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## Judgment

#### Introduction: 10

The appellant being dissatisfied with the judgment and orders of Her Worship Ruth Nabaasa, the Chief Magistrate dated 29<sup>th</sup> July, 2022 delivered on the 1<sup>st</sup> day of November, 2022 by Her Worship Jane Francis Nanvuma, brought the instant appeal whose grounds according to the Memorandum of appeal are as follows;

- 15 1. That the learned trial Magistrate erred in law and fact in declaring that the defendant is not a trespasser but rather a lawful and bonafide occupant on the suit land comprised in Mawokota Block 106, Plot 203 and Plot 199 situate at Katende-Mpigi District. - 2. That the learned trial Magistrate erred in law and fact in finding that the plaintiff's title in the suit land is subject to the defendant's kibanja/equitable interest when she failed to properly examine and evaluate the defendant's evidence on court record in respect to bonafide/lawful occupation and/or busulu tickets. - 3. That the learned trial Magistrate erred in law and fact when she omitted and/or failed to consider or evaluate the plaintiff's evidence and/or exhibits that inter alia include; sale agreement between the plaintiff's predecessors, Margaret Ndimulagani and Rev. Joseph Kyeyune dated 21<sup>st</sup> March, 2003, pictures of destruction of his house and/or receipts of construction materials. - 4. That the learned trial Magistrate erred in law and fact when she held that the plaintiff did not prove his case on a balance of probabilities and awarding the defendant costs thereby occasioning a miscarriage of justice.

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# Brief background:

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The appellant sued the defendant for a declaration that the respondent was a trespasser onto his land comprised in block 106 Plots 203 and 199 situate at Katende, a permanent injunction against the respondent from trespassing, selling, transferring or transacting onto the suit land, general damages and costs of the

suit. The appellant's claim was that he lawfully purchased the suit land comprised in

Mawokota Block 106, Plot 203 and Plot 199 (formerly Plot 95) situate at Katende-Mpigi District measuring approximately 1.14 acres from Musisi John and Lwele

Med at a consideration of UGX 70,000,000/ $=$ . That prior to the said purchase, the 10 appellant had conducted due diligence and inspected the land where he found it vacant and bushy without any encumbrances whatsoever. In his investigations, the appellant established that the title of the suit land was transferred into the name of the vendors Musisi John and Lwele Med by Rev. Fr. Joseph Kyeyune upon their purchase. 15

Prior, the title had been transferred into the names of Rev. Fr. Joseph Kyeyune in 2004 by his land lord, Margarita Ndimulagani having purchased his interest on 21<sup>st</sup> March, 2003 as a bonafide owner/kibanja holder. The appellant then occupied/utilized the suit land in May, 2017 through cultivation and construction

of his permanent house. However, the respondent unlawfully entered the suit land, 20 demolished the appellant's house, destroyed his plantations and continued to illegally occupy the same.

The respondent on the other hand disputed the appellant's case claiming that he was a bonafide occupant having inherited the suit land from his father and has been in occupation of the same since 1946. The respondent also argued that the registration of Rev. Fr. Joseph Kyeyune onto the title was illegal since the latter had filled a pending Civil Suit No. 091 of 2010 which was later dismissed due to his death.

# Representation:

Mr. Ntege Charles appeared for the appellants while Mr. Sema Tengo Abubaker 30 appeared for the respondent. Both parties filed written submissions.

# Duty of the first appellate court:

The duty of the first appellate court is to consider the evidence on record, evaluate it and draw its own conclusions bearing in mind that it neither heard nor saw the witnesses testify in the lower court. (See: Selle v. Associated Motor Boat and Co. Ltd

[1968] E. A 123; Fredrick Zaabwe v. Orient Bank & 5 Others, S. C. C. A No. 4 of 2006 and Section 80 (1) of the Civil Procedure Act).

## Resolution of the appeal:

Ground 1: That the learned trial Magistrate erred in law and fact in declaring that the defendant is not a trespasser but rather a lawful and bonafide occupant on the $\mathsf{S}$ suit land comprised in Mawokota Block 106, Plot 203 and Plot 199 situate at Katende-Mpigi District.

Counsel for the appellant cited the case of Justine E. M. N. Lutaaya v. Stirling Civil Engineering Company, Civil Appeal No. 11 of 2002, on the definition of trespass which is;

"Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass".

The case of Sheikh Muhammed Lubowa v. Kitara Enterprises Ltd, C. A No. 4 of 1987, court observed that for one to succeed in an action of trespass, they must prove the following:

- i. That the disputed land belonged to the plaintiff. - ii. That the defendant had entered upon it. - That entry was unlawful in that it was made without permission or that iii. the defendant had no claim or right or interest in the disputed land.

Counsel submitted that it was the testimony of the appellant that he bought the suit land on 17<sup>th</sup> March, 2017 from Musisi John and Lwele Med at a consideration of 25 UGX 70,000,000/= and an agreement was executed in that regard. That the suit land was originally Mawokota Plot 95 which the appellant subdivided and registered in the names of his children to wit; Serufusa Ezra, Naluyijja Abishag Susan, Mulema Shaun and Ssejjengo Shen Enock. That the appellant's evidence was corroborated by the evidence of one of the vendors Musisi John. That prior to 30 purchasing the suit land the appellant conducted due diligence through carrying out a search in the land registry and visiting the land physically, whereof, he found the land vacant and bushy.

That PW2 tendered in Court PEX2 which is the sale agreement dated 11<sup>th</sup> May, 2011 that was executed when Musisi John and Lwele Med purchased the suit land 35 from Rev. Fr. Joseph Kyeyune.

PW4 identified PEX2 and confirmed that he too signed as one of the witnesses when Rev. Fr. Joseph Kyeyune bought the suit land from his land lord Margarita Ndimulagani who in turn inherited the land from Mugwanya Mullo the former landlord.

- Counsel further submitted that the appellant took possession of the suit land after $5$ purchasing the same and cultivated thereon until he was stopped by the respondent and his agents who uprooted his crops and subsequently, destroyed his house and wall fence. That this evidence was uncontroverted by the respondent but the trial Magistrate did not consider it in her judgment. - Counsel added that the trial Magistrate found that the respondent was not a 10 trespasser since he had a right on the land as a bona fide owner despite the respondent failing to produce evidence to that effect. That the respondent tendered in court busulu tickets of 1961-1964 where he claimed to pay to Mullo Mugwanya. However, that during cross examination the respondent contradicted the content in the busulu tickets by telling court that the rent was collected by 15 Kassala on behalf of the land lord yet the name on the tickets was P. Salongo.

Furthermore, that DW2 made further contradictions that Kasaala collected the rent on behalf of Kabusu who was the land lord/owner of the suit land. That the respondent also confirmed that he did not know the Block and plot number of the

- land for which he paid busulu. That it was the evidence of PW4 that he lived at the 20 suit land between 1961-1964 and he knew that it was only Yosefu Ddungu who collected busulu on behalf of the then land lord Mullo Mugwanya. Counsel added that the trial Magistrate ignored all the inconsistences and the respondent failed to adduce any evidence to support his claim that he had been on the suit land since $1946$ to date. 25

Counsel went on to submit neither the respondent nor the trial Magistrate challenged the credibility of all the sale agreements and certificate of titles produced by the appellant during trial. That it is settled law as provided for under Section 92 of the Evidence Act that oral evidence cannot be used to add to, vary or contradict a written instrument. And relied on the case of Golf View Inn (U) Ltd v. Barclays Bank (U) Ltd, High Court Civil Suit No. 358 of 2009, where it was held that;

"From the above legal principles, it is clear that once parties have executed agreements, they are bound by them and evidence of the terms of the agreement should be obtained from the agreement itself and no extrinsic evidence shall be admitted, if admitted, shall be relied upon to contradict, add to, vary or subtract from the terms of the contract except where there

# is fraud, duress, illegality, lack of consideration, lack of capacity of execute the contract."

Thus, the trial Magistrate erred in law and fact in declaring that the defendant is not a trespasser but rather a lawful and bonafide occupant on the suit land comprised in Mawokota Block 106, Plot 203 and Plot 199 situate at Katende -Mpigi District.

Counsel for the respondent on the other hand submitted that it was the evidence of the respondent that he got the suit land from his father and had occupied the same since 1946 without any disturbances and paid busulu accordingly which

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was confirmed by DW2 Kinene Vicent. That the respondent had been on the land unchallenged till the death of his parents and Rev. Fr. Kyeyune that the dispute arose. That the trial Magistrate rightly observed that the respondent was a lawful and bonafide occupant of the suit land having occupied the same since 1946 and paid busulu between 1960-1964. Hence falling within the ambit of Section 29(2) (a) of the Land Act as a bonafide occupant.

I have carefully considered the pleadings, the exhibits tendered in court, the witnesses' testimonies and the submissions with the authorities and law cited therein of the parties in regard to this ground.

PW1 stated that he bought the suit land from Musisi John and Lwele Med in 2017 who in turn bought from Rev. Fr. Joseph Kyeyune and that at the time of purchase 20 he did not find any burial grounds on the suit land but rather on a neighbouring piece of land. PW2 confirmed that there is no grave yard on the suit land.

PW4 in his testimony stated that Rev. Fr. Joseph Kyeyune was in charge of two bibanjas in his life time and the upper part is what constitutes the suit land and the lower part is the cemetery of the family and that is where PW4 and the respondent will be buried if he pleases. That Marko Kyeyune in his will left the lower part to Rev. Fr. Joseph Kyeyune.

PW4 further stated that Salongo Valanta Ssempogo was a brother to Marko Kyeyune according to kiganda traditional hierarchy who before his death gifted his land to Marko Kyeyune and subsequently named him as his heir. That Kyeyune built thereon even though he rarely stayed there. That Marko kyeyune buried his son Yozefu Kyeyune on the said land. Then Marko Kyeyune declared Rev. Fr. Joseph Kyeyune as his heir and bestowed upon him all the responsibilities and authority over his estate. That the widow to Kyeyune utilized the land until the bush war when she fled back to her home area and never returned whereof Rev. Fr. Joseph Kyeyune started utilizing the land without any disturbance not even from the family of Marko Kyeyune.

PW4 added that because the Rev. Fr. Could not stay on the land, among the caretakers to the suit land he appointed was Nazziwa Scolastic, a sister to the respondent. That part of her duties was to care take the banana planation and the piggery project. That she eventually requested to leave and as a token of appreciation she was given the iron sheets that were on the two bedroomed house that was on the suit land. And the two bedroomed house was left without iron sheets and the plantation unattended to for a period of time.

Furthermore, that Margaret Ndimulagani a daughter of Mugwanya Mullo the land lord of the suit land, approached Rev. Fr. Kyeyune and offered him the option to

- buy the legal interest of the same. He accepted and purchased the same whereof a 10 sale agreement was executed. On 21<sup>st</sup> March 2003, Rev. Fr. Kyeyune became the first registered proprietor of the suit land comprised in Mawokota Block 106 Plot 95. PW4 was one of the witnesses to the said agreement. That upon becoming the registered proprietor to the suit land, Rev. Fr. Notified the public and the police - that the gazetted grave yard was no longer open for use as a burial ground but the 15 respondent continued to bury his relatives and unknown people on the land during the night. That the respondent continued to destroy the crops belonging to Rey. Fr. Kyeyune.

PW4 also stated that the busulu tickets for the respondent are a forgery since the person who collected busulu for the suit land was Yozefu Ddungu and Margaret 20 Ndimulagani and not Petro K. Salongo.

That in 2011 Rev. Fr. Kyeyune sold 1.75 acres to Musisi John and Lwele Med and 20 decimals were reserved for the grave yard which is registered as Mawokota Block 16 Plot 201. That he was also a witness to this sale agreement. That at the

- time of the sale and after there was no kibanja interest being claimed by the $25$ respondent. That if there are any claims to be laid then they should be brought by the family of Marko Kyeyune and not the respondent whose siblings are not fighting for the same. That the dispute arose after the death of Rev. Fr. Joseph Kyeyune. - The respondent on the other hand averred that he had been using the suit land 30 since 1946 having got it from his father who in turn got it from his grandfather. That he grew crops on the land, had a house and used it as burial grounds for his relatives. And has been paying busulu to Mullo Mugwanya and these were collected by Kasaala. However, the busulu receipts indicated that they were collected by P. Salongo. Who according to DW2 is Kasaala Salongo and indeed on 35 receipt under serial no. 5827, the collector is indicated as Petro K. Salonga and the rest of the receipts have P. Salongo. In my opinion the collector was one and the same person who used his names interchangeably.

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PW4 on the other hand disputed that Kasaala Salongo was not the busulu collector but rather Yozefu Ddungu and Margaret Ndimulagani.

The respondent further stated that he paid busulu from 1961-1964. That upon the death of his parents, Rev. Fr. Kyeyune went ahead to create a title over the suit land

- in 2003 yet the land did not belong to him. That a suit was brought over the suit $\overline{5}$ land in 2010 but it was dismissed for want of prosecution. That he is the one currently in occupation of the suit land. And in 2018 while he was trying to plant crops on his land he was arrested and charged. However, he has since been acquitted over the same. - In cross examination he stated that Margaret Ndimulagani was a daughter to 10 Mullo Mugwanya and he knew that she obtained a title as the new land lord and sold to Rev. Fr. Joseph Kyeyune. That he then went ahead and lodged a caveat. However, proof of the caveat was not tendered in court. - DW2 stated that the respondent has lived and utilized the suit kibanja from childhood to date and he had never seen the appellant thereon. In cross 15 examination he stated that the land lord to the suit land was Kabusu and the land at the time was occupied by Dalia Babirye which is a contradiction of who the other witnesses stated the land lord was.

PW4 in his evidence chronologically stated how the suit land changed hands and how ownership was obtained by the appellant. He stated that Salongo Valanta 20 Ssempogo was a brother to Marko Kyeyune according to kiganda traditional hierarchy who before his death gifted his land to Marko Kyeyune and subsequently named him as his heir.

It was not mentioned by any of the witnesses that the respondent obtained his land through his father called Salongo Valanta Ssempogo as the trial Magistrate found 25 in her judgment. The respondent merely mention that he inherited the suit land from his father. Matter of fact the respondent did not mention the names of who his father was nor his grandfather. He also did not inform court when (the year(s)) his father or parents died and the year the alleged dispute arose even though he stated that the disputed arose after the death of Rev. Fr. Kyeyune and his parents. 30

During the locus in quo visit court observed where the piggery belonging to Rev. Fr. Kyeyune used to be located. The respondent was found in utilization of the suit land despite the issuance of a court injunction restraining utilization of the suit land. Court also observed mature trees which were said to have been planted by the respondent. However, it was not mentioned on which part of the said trees were found since the appellant's witnesses were categorical that there were two pieces of land owned by Rev. Fr. Joseph Kyeyune one being on the upper side and


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the other on the lower side.. Whereas, the respondent claimed that the suit land had a grave yard, PW2 stated that he was the one caretaking the grave yard and it was not part of the suit land even though it had graves of the respondent's relatives. The appellant also maintained that the graveyard does not form part of the suit land and has a separate title.

While the appellant claims 1.4 acres of the suit land, the respondent during locus stated that the suit land is 2.4 acres. During cross examination he stated that the grave yard was not part of the suit land and in reexamination changed that the graveyard was part of the suit land and that the kibanja is 2.8 acres.

- The appellant in this case submitted that the trial magistrate erred when she found 10 that the respondent was not a trespasser but rather a lawful and bonafide occupant of the suit land. The respondent on the other hand argued that the trial magistrate in this case rightly found him as a bonafide occupant of the suit land. - Section $29(2)(a)$ of the Land Act defines a bonfide occupant to mean a person who before coming in force of the Constitution of 1995, had occupied and utilized or 15 developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more.

Section 1 (2) of the Land Act, registered owner means; a registered owner in accordance with the Registration of Titles Act.

- In the instant case Rev. Fr. Joseph Kyeyune became the first registered proprietor 20 of the suit land in 2003 having purchased the same from Marigarita Ndimulagani who then transferred the same to him. The said purchase was not challenged by the respondent however, it was submitted for the respondent that the legal interest of the Rev. Fr. was subject to the equitable interest of the respondent. - The respondent in the instant case based his claim on the fact that he had been 25 paying busulu to the land lord for the period from 1961-1964 until the law was abolished. A set of four busulu receipts in the name of Mullo Mugwanya was tendered in court. - However, the Busuulu and Envujjo law, of 1928 remained in force until 1975 when the Land reform Decree (No. 3 of 1975) abolished it. After the enactment of 30 the Land Reform Decree, 1975 whereof kibanja holdings were governed by that Decree and the Land Reform Regulations, 1976 (S. I No. 26 of 1976).

Section 3(3) of the Land Reform Decree, 1975 provided as follows:

"(3). Without prejudice to the generality of subsections (1) and (2) of this section, tenancies on land held immediately before the commencement of this Decree, 35

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$\mathsf{S}$ a. As mailo land subject to the Busulu and Envujo Law; or

b.

May continue after such commencement subject to the following:

- $i$ The conversation of any such tenancy into a customary tenure on public land, but without the payment of Busuulu, envujo or the customary rent required by the laws referred under paragraph (b) of this subsection; - ii. The development needs of the lessee on conversion with respect to the land. - iii. Such conditions as the commission may, having regarding to the zoning scheme affecting the land, impose; and - The payment of compensation, where the tenancy is terminating at the iv. instance of, or to satisfy the said development needs of, the lessee on conversion....."

"(4) The following laws shall cease to have effect in any part of Uganda namely,

a. The Busuulu and Envujo Law;"

In the case of George Kasedde Mukasa v. Emmanuel Wambedde and 4 Others, Civil Suit No. 459 of 1998, court observed that;

"In my view a person who, on the commencement of the Decree, was in occupation of land by customary tenure, by virtue of the decree, was a kibanja holder whose tenancy, previously held on mailo land under the Busulu and Envujo Law, had been converted into a customary tenure on public land. Such person had to apply to the Sub-County Land Committee in charge of the area where the former mailo land was situated to be registered as owner of a particular holding".

In the case of Tifu Lukwago v. Samwiri Mudde Kizza and Another, S. C. C. A No. 13 25 of 1996, it was held that;

> "The land Reform Decree, 1975 converted mailo land into public land, and the mailo land owner into a lessee on conversion. It preserved kibanja holding as a customary tenures on public land without any apparent liability or obligation, on the part of the kibanja holder, to the lessee on conversion...it had been under the Busulu and Envujjo law, and in particular for. The customary practice of introduction and giving a kanzu was for the purpose of soliciting such consent. The position after the decree therefore was that while the customary tenure was continued, the customary rights and obligations previously appertaining to that tenure were not preserved..."

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Lawful occupant refers to these various categories of people such as:

- 1. Persons occupying land by virtue of the repealed; Busuulu and Envujio Law of 1928, Toro Landlord and Tenant Law of 1937, Ankole Landlord and Tenant Law of 1937. These laws were repealed by the Land Reform Decree of 1975. - 2. Persons who entered the land with the consent of the registered owner including a purchaser. - 3. Persons who had occupied land as a customary tenant/Kibanja holder but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

The respondent in this case contends that the trial magistrate was correct to find him a lawful/bonafide occupant and not a trespasser. One is said to be a trespasser when they unlawful enter the property of another without their consent. The issue for determination now is that whereas, the respondent may actually be a bonafide/lawful occupant is he one on the suit land or on totally a different piece

15 of land?

The suit land the subject matter of this appeal got registered in 2003 with Rev. Fr. Joseph Kyeyune becoming the registered proprietor of the same having purchased it from Marigarita Ndimulagani. According, to the appellant's witnesses Rev. Fr.

- Joseph Kyeyune had been utilizing the suit land after the wife of the late Marko 20 kyeyune left the same during the bush war. That he even constructed there on a two bedroomed house and a piggery project whose remains were observed by court during the locus in quo visit. As such Rev, Fr. Joseph Kyeyune had an equitable interest in the suit land before he eventually bought the legal interest over the same. 25

The respondent gave contradictory evidence and was unable to tell court the correct acreage of the land that belongs to him. During the locus in quo visit he mentioned that the suit land was 2. 4 acres and then changed to 2.4 acres.

Secondly, whereas he stated that his land lord used to be Mullo Mugwanya and he had been on the land since birth his witness DW2 stated that to land lord to the 30 suit land was Kabusu and the land at the time was occupied by Dalia Babirye. Yet, the same witness had told court that the respondent had utilized the suit land since childhood to date.

Thirdly, the respondent was he unable to give court a detailed and chronological recount of how he obtained the suit land much as he stated that he inherited it 35 from his father, he did not state his name nor that of his grandfather. And whereas, he claimed that the suit land had a grave yard, it was the evidence of the appellant

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and his witnesses that the grave yard was not part of the suit land. The respondent himself was inconsistent on whether the graveyard was part of the suit land or not while it was the evidence of the appellant's witnesses that the suit land had a separate title and the land with the graveyard had its own title.

It is my considered view that from the evidence as adduced by the parties which I $\mathsf{S}$ have analyzed above that the respondent is a trespasser on the suit land and not a bonafide occupant/lawful occupant of the same. As such, the trial magistrate erred in finding to the contrary.

This ground of appeal hereby succeeds.

Ground 2: That the learned trial Magistrate erred in law and fact in finding that 10 the plaintiff's title in the suit land is subject to the defendant's kibanja/equitable interest when she failed to properly examine and evaluate the defendant's evidence on court record in respect to bonafide/lawful occupation and/or busulu tickets.

Counsel for the appellant submitted that the respondent in the instant case does not fit within the realm of a bonafide occupant as enshrined in the 1995 15 Constitution, the Land Act and case law. Counsel noted that the respondent testified that he had been in occupation and possession of the suit kibanja on the suit land $\overline{a}$ since 1946 and tendered in busulu tickets of 1961-9164 where he claimed that he paid busulu to the land lord Mullo Mugwanya. However, in cross examination,

- the respondent contradicted the content of the busulu tickets by telling court that 20 the rent was collected by Kasaala on behalf of the land lord yet the name that appeared on the tickets is P. Salongo. That DW2 however, stated that Kasaala collected rent on behalf of Kabusu who was the Landlord. That the trial Magistrate however, neglected these inconsistencies. - Counsel added that whereas the respondent stated that the suit land has burial 25 grounds, the appellant and his witnesses all confirmed that there was no burial ground but rather on the adjacent land. And that while the respondent claimed that he had a house on the suit land which was destroyed by the appellant, he never showed where the said house used to be located nor brought witnesses to court who saw where the house used to be nor were there any remains shown to court. 30 On the contrary the appellant showed court where the destroyed kijja and pig house of Rev. Fr. Kyeyune used to be.

Counsel for the respondent on the other hand submitted that the appellant was aware of the $3<sup>rd</sup>$ party and there was an ongoing court case in that regard which was also included in the agreement DEX1. That prior to the appellant purchasing he saw the grave on the land and still went ahead and bought the land. However, could not take possession of the land since at the time of sale the seller Musisi John

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had never taken physical or lawful possession. That as such the trial Magistrate correctly found that the respondent had a kibanja interest in the suit land. Counsel relied on the case of Uganda Posts and Telecommunication v. Lutaaya, S. C. C. A No. 36 of 1995, where it was held that the proprietor of land takes it subject to all encumbrances and these include bibanja owners where the kibanja was procured

during the occupation of the bibania holders.

$5$

Further, that basing on the principle of "Qui Prior Esttempre," he who is earlier in time is stronger in law as cited on page 27 Hanbury and Martin Modern Equity (Sweet and Maxwell) Ltd 1977, which provides that; prior equitable interest in

- land can only be defeated by a bonafide purchaser for value without prior notice. 10 The equities are equal and his estate prevails. If he took with notice, the position is otherwise, as the equities are not equal. If he does acquire a legal estate, the first in time that is the prior equitable interest prevails as equitable interests rank in the order of creation. - Counsel added that once the law of equity is applied to the above facts by this 15 honourable court, it is not doubtable that upon buying the legal interest of the two acres of the whole land and obtaining a title the kibanja interest remained subsisting.

I have looked at the busulu receipts as submitted by the respondent who stated that he made payments to Mullo Mugwanya as the land lord. However, DW2 stated 20 that the land lord that the respondent paid to was called Kabusu. Be that as it may, the parties are not in disagreement that the land lord to the suit land was Mullo Mugwanya and that later on his daughter Margaret Ndimulagani became the land lord. She sold to Rev. Jr. Joseph Kyeyune who became the registered proprietor of

the suit land having had a kabanja interest on the same which was the evidence 25 for the appellant. As such there was no kibanja or equitable interest on the suit land that was subject to Rev. Fr. Joseph Kyeyune legal interest since he bought what he was occupying as a kibanja. And the same was observed during the locus in quo visit where court was shown where his piggery project used to be and the kijia that was destroyed. 30

The trial magistrate inter alia based her decision on the fact that there were old trees observed on the suit land allegedly planted by the respondent with even a tree 100 years old. It should be noted that the trial Magistrate was no expert in agriculture and it is not known what yardstick she used to determine that the trees were 100 years and 60 years old.

Secondly, the land as claimed by the respondent has a graveyard which according to the appellant's witnesses has its independent certificate of title different from that of the appellant's land. This piece of evidence was not contravened by the

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respondent in any way and the trial magistrate ignored this in her evaluation of the evidence. It is trite that a certificate of title is conclusive evidence that the person named in it as the proprietor is possessed of the estate and interest described there in, the appellant proven that he is the registered proprietor of the suit land that was bought without any encumbrances.

I accordingly find that the learned trial Magistrate erred in law and fact in finding that the appellant's title in the suit land is subject to the respondent's kibanja/equitable interest. This ground of appeal also succeeds.

Ground 3: That the learned trial Magistrate erred in law and fact when she omitted and/or failed to consider or evaluate the plaintiff's evidence and/or exhibits that 10 inter alia include; sale agreement between the plaintiff's predecessors, Margaret Ndimulagani and Rev. Joseph Kyeyune dated 21st March, 2003, pictures of destruction of his house and/or receipts of construction materials.

Counsel for the appellant submitted that the appellant produced certificate of titles of the suit land comprised in Block 106 plot 199 and Plot 203 registered in his 15 names and the children under instrument number KLA 00020012 dated 18<sup>th</sup> May, 2018. That the agreements were identified by PW1. And also produced PEX2 and PEX7 which indicated that Margarita Ndimulagani transferred to Rev. Fr. Joseph Kyeyune and eventually Musisi John and Lwele Med and finally the appellant. That

the appellant also produced evidence through PW2, PW3 and PW4 who 20 corroborated his evidence in regard to the acquisition of the suit land. He further brought photos showing how his house was destroyed by the respondent and receipts of purchase of building materials. However, the trial magistrate disregarded all this evidence thus arriving at the wrong conclusion.

Counsel for the respondent on the other hand submitted that the evidence of the 25 sale agreements and certificate of title presented by the appellant was properly evaluated; this is evident when she solely struck out the suit in respect of Block 106 Plot 203 which is registered in the name of the children. That the fact that the trial Magistrate did not strike the entire suit based on the evidence, this implies proper evaluation of evidence and application of the law. 30

I have perused the judgment as made by the trial Magistrate and most of her decision was based on evidence that the trial Magistrate made out on her own and not as adduced in court. Whereas, it is true that the certificate of titles and sale agreements were considered, it was only in regard to the preliminary objection regarding the appellant's locus standi and not the merits of the suit.

The appellant also noted that the trial magistrate disregarded his receipts that showed purchase of the building materials and pictures of the destroyed property.

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However, much as it is true the same was ignored by the trial Magistrate, I am unable to pronounce myself on the special damages as claimed by the appellant. I find that the appellant nor his witnesses led evidence in this regard save for attaching the receipts and photos and alluding to them. It is trite law that special damages must be specifically pleaded and proved. In the case of Nasif Mujib and Another suing through Mujib Juma Kenyi, Attorney v. Attorney General, Civil Suit No. 160 of 2014, it was stated that:

"Special damages must be strictly proved meaning that evidence adduced on their proof must show particularity in accordance with the pleadings. and the claim must also be based upon precise calculation as to enable the defendant access facts which makes such calculation. Therefore, special damages are damages that are alleged to have been sustained in the circumstances of a particular wrong which must be specifically claimed and proved to be awardable".

In the circumstances this ground of appeal too succeeds. 15

I set aside the costs as awarded in the lower court.

Ground 4: That the trial Magistrate erred in law and fact when she held that the plaintiff did not prove his case on a balance of probabilities and awarding the defendant costs thereby occasioning a miscarriage of justice.

Counsel for the respondent submitted that there are many factors courts consider when awarding costs as provided under Section 27 (1) of the Civil Procedure Act 20 and while court is exercising its discretion it should consider and adopt the established principles found in several cases such as Nicholas Rousous v. Ghulam Hussein Habib Virani and Others, Court of Appeal Civil Appeal No. 30 of 1998 and Makula International Ltd v. Cardinal Nsubuga and Another, [1982] HCB 11.

That the general principles are that costs should not be allowed to rise to such a 25 level so as to confine access to court to the wealthy.

Secondly, that a successful litigant ought to be fairly reimbursed for costs he has had to incur in the case. Counsel added that the order of costs was given on a correct premise that the defendant herein is not a trespasser on Block 106 Plot 203 and 199 land at Katende Mawokota and had been on the suit kibanja since 1946

when he was born. Counsel prayed that this court upholds the order for costs. I agree with the submissions for the respondent, however, from the resolution of the issues above, I find that the trial Magistrate erroneously found that the appellant had not proved his case on a balance of probabilities. In the circumstances had the trial magistrate evaluated the evidence correctly she would

have found in favour of the appellant and awarded him costs. In the circumstances

$5$

14 | Page

This ground of appeal also succeeds.

In a nutshell this appeal succeeds on all grounds. The appeal is hereby allowed in the following terms;

- 1. A declaration that the respondent is a trespasser on the appellant's land described a Mawokota Block 106 Plot 203 and 199 lands at Katenda. - 2. A permanent injunction is hereby issued restraining the respondent from trespassing or selling, transferring or in any way transacting in the suit land with any third party. - 3. Costs are awarded to the appellant both in this appeal and in the lower court. - I so order. Right of appeal explained. 10

OYUKO ANTHONY OJOK

**JUDGE** 8/7/2024 15