Tibasaga & 2 Others v Kabonera (Civil Appeal 39 of 2020) [2024] UGHC 845 (29 August 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 039 OF 2020 (ARISING FROM FPT-21-CV-LD-009-2008)**

**1. MARIA TIBASAGA 3. KUSEMERERWA**

**2. MARGRET BASEMERA ::::::::::::::::::::::::::::: APPELLANTS**

**VERSUS**

**OLIVER KABONESA :::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and decree of H/W Muhumuza Asuman of the Chief Magistrate's Court of Kyenjojo at Kyenjojo, delivered on 3rd December 2020. In that judgment, the learned trial magistrate decreed that the suit land belongs to the respondent, declared the appellants as trespassers on the suit land, and issued an order of eviction and a permanent injunction against the appellants to prevent further acts of trespass.

#### **Background**

The respondent filed Civil Suit No. 09 of 2008 against the appellants before the Chief Magistrate's Court of Fort Portal at Kyenjojo, seeking a declaration that she is the owner of the suit land situate at Mahangwe, Mitooma Parish, Bugaaki Sub-county in Kyenjojo District. She also sought an order of eviction, a permanent injunction, general damages, and costs of the suit.

The respondent's claim is that she inherited the suit land from her father, the late Koroneri Musononwa, who was the first settler on the land in the 1930s. In 1959, the 1st appellant settled on land adjacent to the suit land with the permission of the respondent's father. However, after the death of the respondent's father, the 1st appellant began claiming ownership of the suit land and distributed part of it to the 2nd and 3rd appellants.

In their written statement of defence, the appellants denied the respondent's claims and counterclaimed that the 1st appellant inherited the suit land from her father, the late Rubale, and had been living on the land together with the 2nd and 3rd appellants. They also alleged that the respondent trespassed on the suit land by uprooting their cassava and banana plantations.

In his judgment delivered on 3rd December 2020, the learned trial magistrate held that the suit land belongs to the respondent and declared the appellants trespassers on the land. The trial magistrate also issued an eviction order and a permanent injunction restraining the appellants, their agents, or anyone claiming under them from further acts of trespass.

Being dissatisfied with the decision of the trial magistrate, the appellants appealed to this court on the following grounds:

- 1. The learned trial magistrate erred in law and fact when he declared that the suit land belongs to the respondent without sufficient evidence. - 2. The learned trial magistrate erred in law and fact when he declared that the appellants are trespassers on the suit land.

### **Representation and Hearing**

Mr. Bwiruka Richard represented the appellants whereas Mr. Dusabe Samuel represented the respondent. The hearing proceeded by way of

written submissions. Both counsel filed written submissions which I have considered in this judgement.

## **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a 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***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

**Ground 1: The learned trial magistrate erred in law and fact when he declared that the suit land belongs to the respondent without sufficient evidence.**

#### **Submissions by Counsel for the Appellants on Ground 1**

In arguing ground 1 of the appeal, counsel for the appellants submitted that the learned trial magistrate did not properly evaluate the evidence on record. Counsel argued that the 1st appellant who testified as DW1 had led evidence showing that she inherited the suit land from her father, the late Rubale.

Counsel further submitted that the 1st appellant testified that she, along with the 2nd and 3rd appellants, had been living on the suit land and had made developments there, including a house, and cassava and banana plantations. Additionally, counsel argued that DW1's testimony showed that the respondent's father, the late Koroneri Musononwa, who is her brother, also received a share from the late Rubale, and that the respondent had inherited a share from her father's estate which is different from the suit land. Counsel argued that this evidence was corroborated by the 2nd appellant, who testified as DW2, as well as DW3, Byaruhanga Moses.

Counsel for the appellants further argued that when the court visited the *locus in quo* on the 27th of July 2019, the 2nd appellant together with the respondent showed the court the boundaries of the suit land, the developments that the appellants had on the suit land, but the respondent did not show court any of her developments on the suit land.

Counsel for the appellants also submitted that from the evidence on record, it was clear that the 1st appellant had inherited the suit land from her late father, who was the original owner of the suit land, and that the 1st

respondent had occupied the same since 1959 which fact the respondent does not dispute.

Counsel for the appellants also argued that it was wrong for the trial magistrate to base his decision on PE1, in favour of the respondent, which was a document purportedly authored by the respondent's father. Counsel argued that PE1 does not show whether the suit land was acquired by the respondent's father and that it was never witnessed.

Counsel for the appellants argued that the respondent had not discharged her burden of proof that the suit land belongs to her and therefore the trial magistrate's decision was not supported by evidence.

## **Submissions by Counsel for the Respondent on ground 1**

Counsel for the respondent argued that the respondent, who testified as PW4, told the court that she inherited the suit land from her father, the late Koroneri Musononwa, who acquired the same as the 1st occupier in the 1930s. Counsel submitted that the evidence on record showed that the 1st appellant came on the suit land in 1959 with the permission of the respondent's father following the death of her husband.

Counsel for the respondent argued that as per the testimony of the PW4, the 1st respondent was licensed by the respondent's father to occupy a small piece of land without the authority to sell or pass any interest in that land to her children and that upon her death, the suit land would revert to the estate of the late Koroneri Musononwa. Counsel submitted that this evidence is also contained in PE1.

Counsel for the respondent also submitted that during cross-examination, the 1st appellant told the court that the respondent's grandfather never stayed in the area where the suit land is situate but in Kihuura and that's where he was buried. Counsel for the respondent argued that it was therefore logical that the late Rubale could not have owned land in Mahangwe Kikandwa Village in Bugaaki yet he only lived and was buried in Kihuura.

Counsel argued that the appellants did not produce any evidence contradicting that of the respondent and therefore the learned trial magistrate was right to hold that the suit land belongs to the appellant.

# **Court's Consideration of Ground 1**

The respondent is a niece to the 1st appellant and the 2nd and 3rd appellants are a daughter and grandson to the 1st appellant, respectively. The respondent claims to have inherited the suit land from her father the late Koroneri Musononwa, a brother to the 1st appellant, while the 1st appellant claims to have inherited the same land from her father, the late Rubale, and that the respondent has her own share of land that she inherited from her father that is different from the suit land.

It is the testimony of the respondent, who testified as PW4, that she inherited the suit land from her father, the late Koroneri Musononwa. That late Koroneri was the first settler on the suit land in the 1930s. The respondent also testified that the 1st respondent came onto the suit land in 1959 after her husband's death with the permission of the respondent's father. That respondent's father constructed a house for the 1st appellant on the land adjacent to the suit land. And when the respondent's father died in 1992, he left a will which stated that he left the suit land for his children and that the 1st appellant would only use the suit land temporarily and was neither allowed to sell nor transfer the same to any other person. That after the death of the respondent's father, the 1st appellant distributed the suit land to the 2nd and 3rd appellants without the respondent's permission or consent. This evidence was corroborated by PW1, and PW2, both of whom are the respondent's brothers.

On the other hand, the testimony of the 1st appellant, who testified as DW1, is that she inherited the suit land from her father, the Late Rubale. That the late Rubale gave each of his children, including the father of the respondent a share and that the respondent had got her own share from her father which is different from the suit land. The 1st appellant also stated that she has been living on the suit land and has developments thereon including a house, and cassava and banana plantations. The 2nd appellant, who testified as DW2, and was about 65 years old at the time she testified, stated that she was born on the suit land, and they had been occupying the suit land uninterrupted until after the death of the respondent's father when the respondent started claiming the suit land.

During cross-examination, DW2 stated that the respondent's land, which she inherited from her father, is different from the suit land, and the two pieces of land – the respondent's land and that suit land – are separated by PW1's land. DW2 further stated that the respondent's house was on that inherited land that the respondent inherited from her father, and the same house was demolished by the respondent herself after which she left her own land to be occupied by her brothers.

During the *locus in quo* visit, the respondent clarified that she has another land in the area. She also clarified that the 1st appellant had a house on the suit land, a banana plantation, and jack fruits. The 2nd appellant also stated that the house which was allegedly burnt by the appellants was not on the suit land but on a separate piece of land. The same clarification was made by DW3 who stated that the house that was demolished is on another land which is separate from the suit land and that the crops on the suit land belong to the appellants.

In finding that the suit land belongs to the respondent, the learned trial magistrate held that:

*"The major issue to resolve in this case is how the 1st defendant entered the suit land. Was it as a result of inheritance from her late father or upon permission by her later brother? Or simply put, did the suit land belong to the late Rubaale or Koroneri (the Plaintiff's father)?*

*I am therefore prepared to find that the plaintiff and some of the witnesses' occupation of the suit land came as a result of inheriting the same from their late father Koroneri. This issue can clearly be resolved by examining PE1 and the testimony of other witnesses."*

The trial magistrate went on to state that:

*A clear analysis of this document PE1 indicates that the 1st defendant came to the suit land in 1959 on permission of her brother the late Koroneri upon the death of her husband who was murdered. She was allowed to stay on the suit land temporarily until she goes back to her land in Kihura. Based on the above, the suit land belonged to the late Koroneri. Upon his death, it passed to his children by way of inheritance, and it was the plaintiff who was given the portion in dispute. In conclusion, therefore the suit land belongs to the plaintiff."*

As rightly argued by counsel for the respondent, there is no evidence on record to support the 1st appellant's claim that the suit land was originally owned by her father, the late Rubale. The evidence on record, which is cogent, is that the late Rubale lived in Kihuura and that's where he was buried. Therefore, the 1st appellant could not have inherited the suit land from her father, the late Rubale when the latter never owned the suit land, in the first place.

Upon re-evaluating the evidence, I find that the 1st appellant first settled on the suit land in 1959 following the death of her husband. At that time, she found the respondent's father, who is also her brother, already on the suit land. It appears that the 1st appellant settled on the suit land with the permission of her late brother, the late Koroneri Musononwa. It is on the suit land that the 1st appellant constructed a house, used a portion of it for cultivation, and has lived since 1959 or thereabout.

The key question which was not answered by the learned trial magistrate is whether after the respondent's father permitted the 1st appellant to occupy the suit land, he then donated the same to the respondent as a gift *inter vivos* or whether the suit land remains part of the estate of the late Koroneri Musononwa?

In finding that the suit land belongs to the respondent, the learned trial magistrate based his findings on PEI, a document dated 6th June 1966 and allegedly authored by the respondent's father who later passed on in 1992, nearly 26 years after authoring the document.

It is a trite law that for a gift *inter vivos* to take irrevocable roots, the donor must intend to give the gift, the donor must deliver the gift and the donee must accept the gift *(See: Sajjabi John v. Zaiwa Charles, Civil Appeal No.50 of 2012).*

A gift *inter vivos* of land may be established by the evidence of exclusive occupation and use thereof by the donee during the lifetime of the donor *(See: Oyet Bosco & Another v. Bwola Vincent Suing Through Attorney Too-Ocaya Francis HC Civil Appeal No. 68 Of 2016)*. All that the plaintiff needs to prove that she acquired land, as a gift *inter vivos*, is the intent, delivery, and acceptance in establishing the validity of the gift *(See:* ## *Elizabeth Komuhendo v. Patrick Sabiiti & Others HCCA NO. 27 of 2020).*

In the instant case, there is no evidence that the respondent accepted the suit land and took possession of it during the lifetime of her father. Therefore, contrary to the claim of the respondent, the suit land was never passed on to her, as a gift *inter vivos*.

As to the authenticity of PE1, I find that the challenge before the learned trial magistrate was that of extracting the truth from falsehoods. In the case of *Ambayo Joseph Waigo v. Aseruka Jackline CACA No. 10 of 2015*, the Court of Appeal held that:

> *"In the face of conflicting oral testimonies, one of the tools used to extract the truth from falsehood is ascertaining whether the evidence of a particular witness in respect of any particular fact or set of facts is in conformity with reallife experience and collateral circumstances. If the testimony tallies with what happens in real life in the given situation, then the probability is that it is truthful. Where the testimony deviates from what ordinarily happens in real life, then the probability is that it is untruthful unless a reasonable explanation is given to account for the deviation."*

Quoting *Sarkar's Law of Evidence. 14rn Edition. 1993 Reprint. Volume 1, on pages 924 – 925*, the Court of Appeal went on to state that:

> *"There is no better criterion of the truth, no safer rule for investigating cases of conflicting evidence, where perjury and fraud must exist on the one side or the other, than to consider what facts are beyond dispute and examine which*

*of the two cases best accords with these facts, according to the ordinary course of human affairs and the usual habits of life. The probability or improbability of the transaction forms a most important consideration in ascertaining the truth of any transaction relied upon [Bunwari V. Hetmaruin, 7MIA 148; see Ramgopal V. Gordon Stuart & Co., 14 MIA 453; See Leelamund v. Bassiroonnissa, 16 WR 102]"*

In the instant case, the 1st respondent settled on the suit land with the permission of her brother in 1959. PE1 was, apparently, authored in 1966. However, based on its contents, the document was to suffice as a gift deed but in case the author did not die in a few days after writing the document, he was to write another deed or will. The author died in 1992, 26 years later. No other document confirming or contradicting the PE1 was authored in those 26 years. Although the respondents' witnesses testified that the late Koroneri Musononwa left a will, they fell short of exhibiting the same at the trial. None of the respondent's witnesses testified to having witnessed PE1, and it only came to the attention of the village chairperson in 1996, long after the death of the respondent's father.

I note that as per the respondent's witnesses, the father of the respondent allowed the 1st appellant to occupy the suit land verbally and that was not reduced into writing at the time. None of the respondent's witnesses was present when the respondent's father permitted the 1st appellant to occupy the suit land or witnessed PE1.

Given the material circumstances of the case, I am at pains to believe the authenticity of PE1, which sought to take away the proprietary rights of the 1st appellant in the suit land without her involvement.

The version which PE1 seeks to establish is not in conformity with reality, given that the late Koroneri would have wished to write another gift deed during his lifetime, and he did not do so in the next 26 years he lived after allegedly authoring PE1. Never mind, that he wrote the same without calling any witnesses. Not even the beneficiaries of the document – the respondent, PW1 or PW2.

Therefore, it is purely a figment of imagination that the late Koroneri Musononwa permitted the 1st appellant to settle on the suit land with no right to sell or transfer the same to her children.

In the circumstances, I find that the trial magistrate did not appreciate the peculiar circumstances of the case and relied heavily on PE1 without determining whether it conformed to the realities at the time.

What can be gathered from the testimonies of parties herein and their witnesses is that the late Koroneri Musononwa allowed the 1st respondent to occupy the suit land and eventually acquiesced into her belief that the suit land had become hers. The 1st appellant built a house on the suit land, planted bananas and cultivated seasonal crops on it.

At one point, long after the death of Koroneri Musononwa, the 1st appellant distributed part of the suit land to the 2nd and 3rd respondents, and this is, revealingly, what prompted the respondent to lay claims on the same, because, in her own imagination, the 1st appellant had no right to transfer land which originally belonged to her father.

The doctrine of estoppel or acquiescence, which requires proof of passive encouragement, has been used to find a claim for a person who is unable to rely on the normal rules concerning the creation, transfer or enforcement of an interest in land.

Quoting Lord Denning in *Crabb v. Arun District Council [1976] 1 Ch.***183**, Hon Justice Stephen Mubiru in the case of *Ibaba Taratizo & others v. Tarakpe Faustina HC Civil Appeal NO. 004 of 2017* held thus:

> *"…the basis of this proprietary estoppel, as indeed of promissory estoppel, is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. It will prevent a person from insisting on his strict legal rights, whether arising under a contract, on his title deeds, or by statute, when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties"*

The learned Justice went on to state that:

*"This doctrine will operate where the claimant is under a unilateral misapprehension that he or she has acquired or will acquire rights in a land where that misapprehension was encouraged by representations made by the legal owner or where the legal owner did not correct the claimant's misapprehension. It is an equitable remedy, which will operate to prevent the legal owner of property from asserting their strict legal rights in respect of that property when it would be inequitable to allow him to do so."*

In the instant case, I find that by late Koroneri Musononwa encouraging the 1st respondent to occupy the suit land, erect a house on it, plant a banana plantation and grow seasonal crops on it, from 1959 until he died in 1992, he had acquiesced into the 1st appellant's belief that the land is hers. Therefore, the suit land cannot be part of the estate of the late Koroneri Musononwa.

In the circumstances, having established that the suit land neither passed as a gift *inter vivos* to the respondent nor is part of the estate of the late Koroneri Musononwa, ground 1 of the appeal succeeds and is accordingly allowed.

## **Ground 2: The learned trial magistrate erred in law and fact when he declared that the appellants are trespassers on the suit land.**

Counsel for the appellant argued that the 1st appellant had proved that she inherited the suit land from her father, the late Rubale and had occupied the same since 1959 uninterrupted. Counsel argued that since the appellants have been occupying the suit land, then they could not have trespassed on the same. Counsel referred this court to the case of *Justine*

## *E. M. N. Lutaya v. Stirling Civil Engineering Company Ltd SCCA No. 11 of 2002.*

On the other hand, counsel for the respondent submitted the 1st appellant was only to occupy a small piece of land adjacent to the suit land which she was not supposed to sell or to transfer to any other person. Counsel submitted that the 1st respondent went against the will of the Late Koroneri Musononwa and distributed part of the suit land to the 2nd and 3rd appellants and forcefully occupied the respondent's land, burnt her house and forced her to leave. Counsel for the respondent argued that these were acts of trespass and therefore the trial magistrate was right when he held that the respondents had trespassed on the suit land.

## **Court's Consideration of Ground 2 of the Appeal**

An action of trespass is largely premised on possession, whether actual or constructive and not necessarily ownership where the owner has parted with possession. In the case of *Justine E. M. N. Lutaaya v. Sterling Civil Engineering Co. Ltd SCCA No.11 of 2002,* the Supreme Court 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".* The Supreme Court went on to state that:

> *"...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 the capacity to sue in trespass. Thus, the owner of an unencumbered land has such capacity to sue, but a landowner who grants a lease of his land does not have the capacity to sue, because he parts with possession of the land."*

In the case of *Sheikh Muhammed Lubowa v. Kitara Enterprise Ltd CACA No. 04 of 1987,* the court held that for a plaintiff to prove allegations of trespass, he must prove: (i) that the disputed land belonged to him, (ii) that the defendant had entered upon it, and (iii) that the entry was unlawful, in that, it was made without permission or that the defendants had no claim, right or interest in the disputed land.

In the instant case, the record of the *locus in quo* visit shows that the respondent has another land which is separated from the suit land by PW1's land. According to DW2 and DW3, the house that was demolished was on that land and not the suit land. The two pieces of land are separate,

and the appellants never occupied the respondent's land on which her house sat.

In holding that the appellants are trespassers on the suit land, the learned trial magistrate held that:

> *"It was the evidence of the defendant witnesses that they have been using the suit land. This was confirmed during the locus visit where court observed different features such as gardens that belonged to the defendants. The same was also corroborated by the testimonies of the plaintiffs' witnesses which were to the same effect that the defendants used to cultivate on the suit land. The issue of absence of consent of the plaintiff is derived from her legal battles against the defendants from L. C. I Tribunal up to this honourable court. All that shows that she had not consented to the trespass. It is therefore my conclusion that the defendants are trespassers on the suit land."*

I am inclined to disagree with the finding of the learned trial magistrate. While it is true that the appellants occupy the suit land, have a house on it and have cultivated it since 1959 or thereabout, as held under ground 1 of this appeal, the late Koroneri Musononwa, acquiesced into this occupancy and belief of ownership of the suit land by the 1st appellant. Therefore, there appellants did not require consent or permission from the respondent, who has never been in possession of the suit land, to continue to occupy or use the suit land, in any way.

In the circumstances, I find that the learned trial magistrate did not properly evaluate the evidence on record to conclude that the appellants were trespassers on the suit's land. Therefore ground 2 of the appeal is hereby allowed.

Resultantly, this appeal succeeds. The judgement, decree and orders of the learned trial magistrate are hereby set aside.

The appellants are awarded the costs of this appeal.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**