Tinkasimire v Kayiwa (Civil Appeal 4 of 2024) [2024] UGHC 424 (28 March 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT HOIMA

#### CIVIL APPEAL NO. 0004 OF 2024

### (Formerly MSD Civil Appeal No.0052 of 2019)

(Arising from Chief Magistrate's Court of Hoima at Kakumiro, C. S No. 17 of $2016$ )

TINKASIMIRE DEOGRATIOUS :::::::::::::::::::::::::::::::::::: $\cdots \cdots \cdots \cdots \cdots \cdots \text{APPELLANT}$ (Suing as an Attorney of **Rev. Fr. Phillip Balikudembe**)

#### **VERSUS**

KAYIWA EDWARD :: **RESPONDENT**

[Appeal from the judgment and orders of the Chief Magistrate's Court of Hoima at Kakumiro, H/W Kambedha Lydia dated 15th/10/2019]

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

#### JUDGMENT

### **Background**

- The Appellant/plaintiff sued the Respondent/Defendant for trespass on land comprising Private Mailo Block 309, plot 3 land at Kilima, Bugangaizi County, Sabagabo Sub county, Kibaale (now Kakumiro **District)** measuring approximately 57.8 Hectares. - $[2]$ It was the Appellant's case that between 1992 and 1997, the Appellant and a one Rev. Fr. Phillip Balikudembe bought the disputed land from a one Emmanuel Ssenyonjo Magala Salongo. The disputed land formerly belonged to the late **Stefano Kajura** and Administration for his estate were granted to the vendor, Emmanuel Ssenyonjo Magala Salongo as executor vide H. C A. C No.678/1996.

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- $[3]$ The Appellant averred that between 1992 and 1997, him and Rev. Fr. Phillip Balikudembe and the vendor visited and inspected the disputed land on several occasions and the same was at all times vacant, bushy with no people, be it a squatter, kibanja holder, licensee, lawful or bonafide occupant who lived or was utilising it. - $[4]$ However, that in 2004, the Respondent started constructing a house on the disputed land under the protest of the Appellant alleging that he bought the kibanja on the disputed land from a one Joseph Kayumbu vide an agreement dated $26/8/1998$ . That the Respondent has grown crops. planted trees and continues to slash and cut down the natural vegetation that originally covered the land subjecting the Appellant and Rev. Fr. Phillip Balikudembe to loss, frustration, inconvenience, anguish and stress for which he held the Respondent to general damages. - $[5]$ In his Written Statement of Defence, the Respondent denied the Appellant's allegations and contended that he acquired a kibanja interest in 1998 from Joseph Kayumbu vide agreement dated 26/8/1998, a bonafide occupant. That the Appellant/Rev. Fr. Phillip Balikudembe became a registered proprietor when the Respondent had been long in occupation. - The Respondent lastly averred and contended that the Appellant's alleged $[6]$ inspection visits on the suit land are a mere cover up because, when the Appellant's attorney made several attempts to evict the Respondent he sued the Appellant vide **C. S No.33 of 2004.** That however, in 2004, the suit was withdrawn after the Appellant agreed to settle the matter outside court and the Respondent enjoyed quiet possession until 2016 when the Appellant instituted a fresh suit for which he intimated to raise an objection with regard to the law of limitation. - The Respondent maintained that upon acquiring the kibanja, he started $[7]$ cultivating thereon, constructed a house and has been getting sustenance from the said kibanja. - $[8]$ The Respondent filed a counter claim for a declaration that he is the rightful owner of the suit kibanja measuring approximately 11 acres

- located at Bucumbi village, Kitutuma, Kibaale District which he acquired in 1998 from Joseph Kayumbu who was by then a bonafide occupant in the presence of the local leaders and elders among other witnesses. - The Respondent concluded that the Appellant and Rev. Fr. Phillip $[9]$ Balikudembe fraudulently acquired a certificate of title around 2010 subject to the interests of the Respondent whom they have been constantly threatening to evict therefrom. - [10] The trial Magistrate on her part, upon evaluation of the evidence that was adduced before her, she found that prior to the purchase of the suit land, the Appellant did not do due diligence to ascertain whether there were some interest holders on the land to wit; Tibulirwa Bernard, the grandfather of Joseph Kayumbu who sold his kibanja interest to the defendant/Respondent. The trial Magistrate found that Joseph Kayumbu duly acquired kibanja interest in the suit land which he passed onto the Respondent. - [11] As a result of the above findings, the trial Magistrate dismissed the Appellant's suit and entered judgment in favour of the Respondent, that the Respondent is the lawful owner of the kibanja in issue and was therefore not a trespasser. She held that it was instead the Appellant who was a trespasser on the Respondent's kibanja. - [12] The Appellant was dissatisfied and aggrieved by the decision of the trial Magistrate. He lodged the present appeal on the following grounds; - 1. That the learned Trial Magistrate erred in law and in fact when she held that the appellant never did the necessary due diligence to ascertain the interests of the land which amounted to fraud. - 2. That the learned Trial Magistrate erred in law and in fact when she held that one of the two graves on the suit Kibanja belongs to Tebulirwa and the other to Gafabusa. - 3. That the learned Trial Magistrate erred in law and fact when she held that the appellant failed to prove that he owns the suit land. - 4. That the learned Trial Magistrate erred in law and fact when she held that Joseph Kayumbu duly acquired interest in the suit Kibanja which he lawfully passed on to the respondent.

- 5. That the learned Trial Magistrate erred in law and fact when she held that the appellant ever recognised the respondent's interest in the suit Kibania. - 6. That the learned Trial Magistrate erred in law and fact when she held that the appellant's Certificate of Title over the suit Kibanja was acquired fraudulently. - 7. The learned Trial Magistrate erred in law and fact when she failed to adequately evaluate evidence as a whole and as a result came to a wrong conclusion.

### **Counsel legal representation**

[13] The Appellant was represented by Nshekanabo Immaculate of M/s Ddamulira & Muguluma Edward Advocates, Kampala while the Respondent was represented by Mr. Robinson Nkwatsibwe of Kasumba, Kugonza & Co. Advocates Kampala. Both counsel filed their respective written submissions for consideration by this court as directed by this court.

### Duty of the $1^{st}$ Appellate Court

- [14] This being the $1^{st}$ Appellate court, its duty is to re-appraise the evidence as adduced before the trial court as a whole and subject it to a fresh and exhaustive scrutiny, weighing conflicting evidence and drawing its own inferences and conclusion. The $1^{st}$ Appellate court has to bear in mind that it has neither seen nor heard the witnesses and should therefore make due allowance in that regard, see John Kihika & Anor Vs Absolom Tinkamanyire, HCCA No.80/2014 at p.5. - [15] This court shall bear in mind the above principles as it appropriately considers the present Appeal.

# **Preliminary objections**

- [16] In his submissions, counsel for the Respondent raised 3 preliminary points of law which are as follows; - a) That the Appeal is based on a defective amended memorandum of Appeal which was hitherto served out of time. - b) The Appeal is based on offensive grounds in the amended memorandum of Appeal. - c) That the Appeal deviated from the grounds in the memorandum of Appeal to wit filing an amended memorandum of appeal without leave of court.

# Alleged defective Amended memorandum of Appeal

[17] According to counsel for the Respondent, the impugned Amended memorandum of appeal was filed on the 29/6/2020 allegedly out of time without leave of court. According to counsel for the Appellant, in his submissions in reply, the "Amended memorandum of Appeal" was filed upon having been granted leave. The leave to file and proceed on the amended memorandum of Appeal was granted on 27/5/2021 under 0.43 r.2(1) CPR (as amended). It is however inconceivable that court on $27th$ May 2021 granted leave to file and proceed on the amended memorandum of appeal filed on an earlier date of $29/6/2020$ . In the premises that the amended memorandum of Appeal had already been on record by the 29th June 2020, what would have been expected of counsel for the Applicant/Appellant would be to apply to court to either adopt or validate such memorandum of appeal and court would consider such a prayer accordingly. I nevertheless find it imperative that this court looks at the record of 27/5/2021 when the leave to file and proceed on the alleged memorandum of Appeal was allegedly granted. The record appears as follows;

"Date:27/5/2021

### Court:

. . . . . . . . . . . . . . .

Let the appellant file written submissions and serve them upon the respondent in person and his counsel by 28/6/2021 and

the respondent to file submissions in reply by $28/7/2021$ . Rejoinder if any by 4/8/2021. Matter adjourned for mention. fixing of the judgment date on 4/8/2021 at 10:00am."

I would state that the amended memorandum of appeal would ordinarily be filed following a grant of leave and not before. As per the court record of 27/5/2021 above, there is no evidence of such leave of court, adoption or validation of the Amended memorandum of appeal filed on $29/6/2020$ .

- [18] As per the above, the record of $27/5/2021$ when the purported leave to file the Amended Memorandum of Appeal was allegedly granted, it is clear that no order of such a nature was actually issued. Besides, even the Appellant's trial bundle does not contain the so called Amended memorandum of Appeal filed on 29/6/2020. It is as if this so called Amended memorandum of Appeal was smuggled on the court record. This court has therefore only considered the available memorandum of appeal dated and filed on the 23/10/2019. It contains 7 grounds of appeal. - [19] As a result of the foregoing, I find the preliminary points of law raised bearing merit. The Amended memorandum of appeal is accordingly struck out for being filed and relied upon without leave of court.

# Merits of the Appeal

[20] Grounds 1-7 all revolve around how the trial Magistrate evaluated the evidence before her in arriving at the conclusion she reached. The 7 grounds of appeal are therefore to be dealt with together.

# **Grounds 1-7: Evaluation of Evidence** a) Whether the Appellant carried out due diligence before buying the suit land.

[21] Counsel for the Appellant submitted that according to evidence on record; PW1, PW2 and PW3, the inspection of the suit land was done between 1992 and 1996 by the vendor's family members and the local authorities. The L. C1 chairman of the area, DW2 signed on the purchase Agreement of the

- Appellant. That as a result of the inspection, the Appellant came to know all the tenants on the suit land and he accordingly compensated them. - [22] Counsel for the Respondent on the other hand submitted that the purchase Agreement which DW2 (the then Assistant chairman L. C1) signed for the Appellant was not of the suit land but of 42 acres which are not in dispute. That otherwise, as per the evidence of DW2, PW2 and PW3, there was no inspection of the land but they were only shown the boundaries. No survey/opening of the boundaries was ever done before the purchase of the land. - [23] Counsel concluded that the duty to do due diligence requires the intending purchaser to do more than merely looking at the boundaries or documents of ownership but to investigate all the relevant facts, squatters on the land, inquiries from the other members of the family and the local authorities among others which was not done by the Appellant before purchase of the suit land. - [24] That on the other hand, the Respondent adduced evidence that he bought the suit kibanja measuring about 7 acres from Kayumbu by agreement dated 26/8/1998 and has therefore been on the suit land even before the Appellant's purported acquisition of the title as confirmed by the L. C. officials; DW2 and DW3. - [25] The record show that upon inspection, the suit land was found to have had only 2 families; the late Kibaliro and the late Nyandera with their 20 acres of the burial grounds which were left out during purchase. Though there was some confusion from the Appellant's evidence as regards how he and Rev. Fr. Phillip Balikudembe purchased the various plots of land (whether it were plot 1,3 or 4), the vendor **Senyonjo Emmanuel** (PW1) explained how the Appellant (PW2) and Rev. Fr. Phillip Balikudembe (PW3) came to acquire the various portions of land. He explained that the land in dispute is that one comprised in **Block 309 plot 3**. - [26] The confusion therefore created by the evidence of the Appellant (PW2) and Phillip Balikudembe (PW3) regarding ownership of Block 309 plot 1 viz a vis the Agreement dated $2/11/1996$ (P. Exh.2) as between the two i.e.

- PW2 and PW3, is found immaterial in this appeal because what is clear is that either both of them were jointly purchasing portions of land or Rv. Fr. Phillip Balikudembe was purchasing through the Appellant. 2ndly, it is evident that the entire L. C of the executive committee who included the L. C chairman (Mr. Kato Constantino), the treasurer (Exavier Muwanga), the Defence secretary, the General Secretary and the vendor's family members got involved in the sale of the portion of the land in question to Rev. Fr. Phillip Balikudembe. In my view, this was sufficient due diligence. - [27] On whether during purchase of land, L. Cs of the area should be consulted as part of due diligence, it was held in Jenifer Nsubuga Vs Michael Mukundane & Anor, CACA No.208 of 2018 that

"The concept of due diligence is principally concerned with the principle of their knowledge of the area in question."

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- [28] In Ssessazi Vs Kulabiraawo Vs Robinah Nalubega, Civil Appeal No.55/2002 (CA), it was held that an Appellant who made the necessary inquiries before the purchase of a kibanja and secured the endorsement of the mailo owner, local council officials and the vendor himself was a bonafide purchaser for value without notice of fraud. - [29] In the instant case, the vendor and the entire L. C1 committee of the area endorsed on the Appellant's purchase agreement (P. Exh.2). The vendor duly transferred the purchased suit land into the names of the purchaser, Rev. Fr. Balikudembe (P. Exh.5). As per the vendor, Senyonjo Emmanuel (PW1), it is the land he sold as per the Agreement (P. Exh.2) that forms the suit land. As per the Appellant (PW2), the original mother title was in the names of **Stefano Kajura** i.e, **Block 301 plot 4** measuring 162.6ha. Upon **Stefano Kajura's** demise, it was transferred to **Senyonjo Emmanuel** (PW1) who sold a portion of it to Rev. Fr, Balikudembe (PW3) of which he got registered thereon as comprised in Block 309 plot 3 (P. Exh.5). - [30] The Respondent on the other hand claim to had purchased the suit land from Joseph Kayumbu whose interest was rooted in a one Tibulirwa who lived on the suit land and allegedly died without a child and was buried on the suit land. The Respondent's agreement is dated 26/8/1998 (D. Exh.1). Though the agreement has the purported witnesses, neither the vendor nor

- the purchaser endorsed it. Upon close scrutiny of D. Exh.1, it is apparent that it was authored with fraudulent intentions especially in the circumstances that the purported vendor Joseph Kayumbu who was still alive could not be produced by the Respondent/Defendant to confirm that he indeed sold the suit land to the Respondent. The Respondent conceded not signing on the agreement and neither himself nor the then L. C1 Chairman (DW2) who witnessed it explained why neither the vendor nor the purchaser endorsed on the so called sale agreement of the suit land (D. Exh.1). Lastly, I find that the so called agreement, is short of any consideration. - [31] In my view, such an "agreement" is no agreement at all that would transfer or confer any land/kibanja interest to the Respondent; S.10 (1) of the Contract Act and Greenboat Entertainment Ltd Vs City Council of Kampala, HCCS No.580 of 2003. - [32] In this case, I find that the Respondent could not rely on D. Exh1 which does not pass to be any form of a deed and therefore does not bind him, to support his counter claim. - [33] As a result of the totality of the above, I find that the learned trial Magistrate erred in law and fact when she held that the Appellant never did the necessary due diligence to ascertain the interests on the land. The Appellant proved that he was the owner of the suit land he jointly purchased with Rev. Fr. Phillip Balikudembe and there was no evidence adduced by the Respondent, that the Appellant's certificate of title was acquired fraudulently. The counter claim is accordingly dismissed with costs. - [34] In the premises, I find all the grounds of appeal raised in this appeal bearing merit. The Appeal is accordingly allowed. The judgment and the decree of the lower court are set aside and substituted with the following orders; - a) The Appellant and or Rev. Fr. Phillip Balikudembe is the rightful owner of the suit land comprised in Private Mailo Block 309, Plot 3 land at Kilima Bugangaizi county, Sabagabo subcounty, Kibaale (Now Kakumiro) District.

- b) The Respondent is a trespasser on the suit land and therefore a permanent injunction issues restraining the Respondent, his agents, servants, assignees or successors in title from trespassing, developing, utilising or in any other way interfering with the Appellant's and Rev. Fr. Phillip Balikudembe's use, enjoyment or ownership of the land. - c) Demolition order issues for illegal structures by the Respondent on the suit land. - Costs of the suit both in lower court and High court are awarded to $d)$ the Appellant.

Dated at Hoima this 28th day of March, 2024.

Byaruhanga Jesse Rugyema JUDGE.