Wasswa & 3 Others v Nabunya (Civil Appeal 23 of 2020) [2024] UGHCLD 123 (24 May 2024) | Kibanja Ownership | Esheria

Wasswa & 3 Others v Nabunya (Civil Appeal 23 of 2020) [2024] UGHCLD 123 (24 May 2024)

Full Case Text

## **THE REPUBLIC OF UGANDA**

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

#### **(LAND DIVISION)**

#### **CIVIL APPEAL No.023 OF 2020**

**(Appeal from The Chief Magistrate Court of Nakawa at Luzira Civil Suit No.59 of 2017)**

**1. STEPHEN WASSWA 2. RAMADTHAN SSENGENDO ::::::::::::::::::::::::: APPELLANTS 3. JULIUS JUUKO 4. NALONGO NAWOOVA VERSUS TEOPISTA NABUNYA ::::::::::::::::::::::::::::::RESPONDENT BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

## *Introduction;*

1. *Stephen Wasswa, Ramadthan Ssengendo, Julius Juuko and Nalongo Nalwoova* herein after referred to as the Appellants brought this appeal against *Teopista Nabunya* herein after referred to as the Respondent appealing against the decision of Her Worship Kabugho Byakutaga Caroline, Magistrate Grade One at the Chief Magistrate's Court of Nakawa at Luzira in Civil Suit No.59 of 2017 delivered on the 27th day of February 2020, by which judgment was entered in favour of the Respondent (Plaintiff in the lower Court) against the appellants

(Defendants in the lower Court) for orders interalia; that the Plaintiff/Respondent is the lawful owner of the suit property, Appellants/defendants declared trespassers on the suit land, interest and costs of the suit were awarded to the Respondent/Plaintiff.

### *Background;*

- 2. In the lower Court, the Plaintiff now Respondent sued the appellants seeking a declaration that the suit Kibanja at Kireka Zone A belongs to her, an eviction order, mesne profits, general damages, interest and a permanent injunction restraining the defendants/appellants and or their servants acting on their behalf from trespassing onto the suit Kibanja and any other reliefs as Court deems fit. - 3. Briefly, the facts before the Lower Court were that the Respondent purchased the suit property from Adolf S. Sempala, constructed a residential house thereon and the same was occupied by her late mother Norah Najjemba. - 4. The appellants however averred that each of them occupies a separate plot and acquired the land under different circumstances. The 1st Appellant claims to have purchased from

Musisi Joseph Bakiranzeki who had purchased from Najjemba as per sale agreement exhibited as DED6.

- 5. The Second Appellant claims to have purchased from Najjemba introduced him to Kisosonkole as the owner of the Mailo interest and gave him her original agreement which he never adduced before Court. He adduced sale agreements which were exhibited as DED1 and DED2 to substantiate his claim in the suit land. - 6. The 3rd Appellant claimed to have purchased from Najjemba and Vicent Ndawula, took the sale agreement to the LC1 Chairperson then, Sserunkuma Francis and he stamped on it which agreement was Exhibit as DED4. - 7. The trial court entered judgment for the Respondent and awarded the reliefs mentioned earlier. - 8. Being dissatisfied with that decision, the appellants appealed on the following grounds, namely; - i) The learned trial Magistrate erred in 1aw and fact when she relied on an invalid agreement to declare the respondent the owner of the Appellant's plot. - ii) That the learned trial Magistrate was manifestly wrong to ignore and disregard the sale agreement of the

Appellants and declare them trespassers on their own plots.

- iii)That the learned trial Magistrate was manifestly unjustified in ordering the Appellants to vacate their own plots within one month from the date of judgement. - iv) That the learned trial Magistrate was manifestly unjustified in ordering the Appellants to pay mesne profits to the respondent plus interest thereon. - v) The findings of the trial Magistrate that the Respondent is the rightful owner of the suit land and that the Appellants are trespassers on their own plots are not supported by the evidence on record. - vi) That the Trial learned Magistrate generally failed to correctly assess the evidence on record and made manifestly wrong conclusions and findings.

## *Representation;*

9. At the hearing of the appeal, the Appellants were represented by Katumba Chrisestom and Okwera Jefferson of M/S Lukwago & Co. Advocates while the respondent was represented by Steven Serwadda of M/s Kajeke, Maguru & Co. Advocates.

#### *Determination*

- 10. The parties filed submissions which I shall consider whilst the determination of this appeal. - 11. In arguing the appeal, counsel for the Appellants addressed grounds 1,2,3,5 & 6 together then addressed ground 4 separately.

## *Duty of the appellate court;*

12. This being a first appeal, this Court is duty bound to evaluate evidence and arrive to its own conclusion bearing in mind that it did not have the benefit of observing the demeanor of the witnesses. The duty of the first appellate Court is to re-evaluate, assess and scrutinize the evidence on the record. *(See Sanyu*

## *Lwanga Musoke v Galiwango SCCA No. 48 of 1995 & Banco*

#### *Arabe Espanol v Bank of Uganda SCCA No. 8 of 1998)*

13. It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate 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, the nature of this duty was put

more appropriately in **Selle vs Associated Motor Boat Co. [1968] EA 123**.

### *Power of the appellate court;*

#### 14. **Section 80(1) of the Civil Procedure Act Cap.71** grants the

High Court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate Court shall have the power to determine a case finally. The appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on Courts of original jurisdiction in respect of suits instituted in it.

## *Analysis and determination of the grounds of appeal;*

- 15. Counsel for the Respondent raised a preliminary point of law which ought to be addressed before I delve into the merits of this appeal. Counsel for the Respondent raised a preliminary point that the 5th ground of appeal offends Order 43 rule 1 (2) of the Civil Procedure rules SI 71-1 as it is argumentative and invited this Court to reject and strike the same out. - 16. Order 43 rule 1 (2) of the Civil Procedure Rules provides;

*The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from*

*without any argument or narrative; and the grounds shall be numbered consecutively.*

- 17. In addition, an argumentative pleading is defined under the *Black's law dictionary 8th edition at page 1191* to mean a pleading that states allegations rather than facts and thus forces the Court to infer or hunt for supporting facts. - 18. A clear reading of Ground 5 of the appeal, *"The findings of the trial Magistrate that the Respondent is the rightful owner of the suit land and that the appellants are trespassers on their own plots are not supported by the evidence on record."* I find this ground rather argumentative as per the definition above and hence the same cannot be considered by this Court. - 19. Furthermore, Ground 6 of this appeal is general. A ground of appeal is supposed to be specific as to where the litigant feels the trial Court erred. Counsel ought to guide Court on whether the appeal is premised on law, facts or mixed law and facts depending on the level of appeal rather than sending Court on a fishing expedition to find where the error was. - 20. Ground 6 of the appeal states *"That the Trial learned Magistrate generally failed to correctly assess the evidence*

# *on record and made manifestly wrong conclusions and findings."*

- 21. It is trite law that an appellate Court can only interfere and alter the findings of the trial Court in instances where there was a misdirection to law or fact or an error by the lower Court that goes to the root of the matter and occasioned a miscarriage of justice. **(Kifamunte Henry v Uganda SCCA No. 10 of 1997)** - 22. In the circumstances, grounds 5 and 6 of this appeal are hereby struck out, not to say that the rest of the grounds were properly drafted, but for completeness and satisfaction of the parties, I shall proceed to resolve the rest of the grounds.

## *Determination of grounds 1,2 & 3.*

- 23. The Respondent's suit in the lower Court was one of trespass however, whilst trial the question of ownership arose. The Appellants were sued as trespasser and the trial Court found them to be trespassers and thus ordered them to vacate the suit land within a period of one month. - 24. Counsel for the Appellants in his submissions stated that the Trial Magistrate stated on page 6 of the judgement that although the action was characterized as an action of trespass but the proceedings are in the character of an action for recovery of land

and that the plaintiff (Respondent) sought to enforce ownership rights and possessory rights over the part being occupied by the Appellants who were declared trespassers.

- 25. In that spirit, Counsel for the Appellants submitted that such action would then be subject to the law of limitation specifically section 11(1) of the limitation Act which provides that no right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run which he referred to as adverse possession and that under section 6 to 10, any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue until adverse possession is taken of the land. That the right of action is deemed to have accrued on the date of dispossession. - 26. It is trite law that adverse possession only applies to registered land. One can only claim an interest or title to the land from the registered owner as the end effect of adverse possession is that the registered owner's title is extinguished and acquired by the person who is in occupation of the land. - 27. The case at hand, the Respondent only holds an equitable interest (Kibanja) in the suit land therefore the Appellants cannot claim to have adversely possessed the Respondent's equitable interest. I find this argument rather misplaced and the same is completely ruled out. - 28. The ultimate question to be determined by this Court is whether the Respondent is the owner of the suit property and if so, are the Appellant's trespassers? - 29. The Respondent at the Trial Court adduced two sale agreements exhibited PEX1 and PEX2 to prove that she owns the suit land. The Respondent testified that PEX1 dated 18/10/1972 was the sale agreement executed between her mother Norah Najjemba and Adolf Ssempala the former owner to which she always paid money in installments after which she constructed a house thereon in which her mother stayed. - 30. That when the Respondent realized that anomaly, the Respondent executed another sale agreement with Adolf Ssempala which was exhibited as PEX2 dated 18/10/1972. The respondent further adduced receipts for payment of Busuulu to the landlord. The Respondent's evidence was collaborated by that of Angelina Nagadya (PW2) who informed Court that she

kept a copy of the will of the late Najjemba and that she never included the suit land among her properties because the same belonged to her daughter, the Respondent.

- 31. Further, Moses Kisosonkole (PW3) a son to the late Christopher Mbabaali Kisonsoke, the Mailo owner testified that he knew the plaintiff (now Respondent) since she occupied part of their late father's land as a kibanja owner and used to pay Busuulu and he did not know of any other Kibanja owner on his father's land. - 32. The Appellants in a bid to show the trial Court that they owned the land and hence they could not be trespasser on their own land, they adduced sale agreements. DW1, Ssengendo Ramathan now 2nd Appellant adduced a sale agreement dated 15/7/94 claiming that the same had been signed by Najjemba. He further informed the trail Court during reexamination that he was not paying Busuulu because it had been suspended and he did not know the Mailo owner. - 33. DW2, Jjuuko Julius now 3rd Appellant adduced a sale agreement dated 23/3/98 exhibited DED3 and another sale agreement dated 4/011/2000 exhibited as DED4 claiming to

have purchased the suit land from Najjemba and Ndawula Vicent who was Najjemba's grandson.

- 34. DW4, Nalongo Nalwoova now 4th appellant adduced a sale agreement dated 17/6/1996 exhibited as DED7. she stated that Najjemba did not introduce her to the Kisosonkole and also Najjemba showed her, her original purchase agreement but at that time she could not manage to write she thus used a thumb print on the agreement. - 35. DW3, Wasswa Stephen now the 1st Appellant adduced a sale agreement dated 24/5/1996 exhibited as DED6 which was the sale agreement between Najjemba and Musisi Bakiranze. Further he also adduced a sale agreement dated 3/12/2002 exhibited as DED5 which was the sale agreement between him and Musisi Bakiranze. - 36. It is worth noting that all these transactions purportedly happened after the Respondent had rectified the anomaly of the sale agreement being in her mother's name and a new agreement was signed between her and the former land owner Adolf Ssempala. Following the execution of the said agreement, Najjemba Norah had no interest in the suit land and hence she could not pass any.

- 37. Furthermore, the Trial Magistrate noted in her judgement that the Appellants while at Locus, were evading the questions Court put to them in identifying the occupants of the land. That the 3rd defendant also stated that he did not know the person he sold the land to and that it was only the plaintiff (now Respondent) that was sure about the land she was claiming. - 38. Owning land does not stop at documents that confer title but it's also prudent to know the location, size, occupants if any and boundaries of the land you claim to own. The trial Court found that the Appellants were not acquainted with all this information except the Respondent. - 39. Basing on the evidence as adduced, I am satisfied that the Respondent is the owner of the suit land and this leaves the appellants in the position of trespassers. - 40. Counsel for the appellants in his submission questions the validity of exhibit PEX2 and contends that the same is a forgery. That a close look and scrutiny of PEX1 and PEX2 that were allegedly authored by Adolf Ssempala show that the handwritings on PEX2 is different from that in PEX2. - 41. The said documents were marked and exhibited in Court in the presence of Counsel for the appellant. On page 7 of the

record of proceedings, counsel's only objection to the tendering in of the said documents was that the Respondent (PW1) was not the author and the said objection was over ruled by Court because the document referred to the witness and the seller had since passed on.

- 42. If the forgery was as glaring as Counsel portrays it to be, he ought to have objected to the admission of such evidence onto Court record and may be adduce a report from a handwriting expert to back up the allegation of the forged agreements. - 43. It is not the role of the appellant Court to tamper with evidence but rather re-evaluate the same as is on Court record so as to reach an independent decision. Thus, I find this argument to be an afterthought and this Court shall disregard the same. - 44. Counsel for the Respondent in his submission stated that the appellants acquisition was subject to the provisions of section 34 (1), (2) & (3) of the Land Act cap 227 which provides for seeking of the consent of the land owner before a tenant by occupancy purports to transact in the land.

45. I wish to state that had the suit been one of recovery of land that argument would carry weight but unfortunately, the suit was one of trespass hence the same cannot stand.

## **Ground 4**

- 46. Counsel for the Appellants in his submissions stated that the learned Magistrate misdirected herself on the law and facts when she awarded a sum of Ug shs 10,000,000 on the basis that the area under dispute as seen at the locus in quo visit has developed land. Further, that the Respondent did not specifically plead for mesne profits and that Counsel for the Respondent only submitted that the Respondent lost earnings of Ug shs 2,000,000 for the whole period since the Appellants illegally occupied the suit land. - 47. In response, Counsel for the Respondent cited a plethora of authorities and further argued that it is a settled principle of law that in case of mesne profits the burden of proof rests on the plaintiff and the onus of proving what profits the defendant might have received with the ordinary diligence lies on the plaintiff.

- 48. A careful perusal of the record, the respondent did not adduce evidence sufficient enough for the award Ug shs 10,000,000 worth of mesne profits. - 49. Section 2 (m) of the Civil Procedure Act Cap 71 provides that mesne profits of property means those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received or might with ordinary diligence have received from it, together with interest on those profits, but shall not include profits due to improvements made by the person in wrongful possession. - 50. The respondent in this case did not show any sign of earnings from the suit land, not past or present or even future and more so, she is still in occupation and utilizing part of the suit land which makes the award of mesne profits rather unjustified. - 51. The argument that mesne profits can be awarded depending on the value of the suit land would make more sense in the presence of a valuation report. None the less, Court has already upheld that finding of the lower Court that Appellants trespassed unto the suit land and therefore Court can exercise discretion to consider mesne profit in the limb of what the

persons (in this case, the Appellants) in wrongful possession of the property might with ordinary diligence have received.

- 52. For the foregoing reasons, this Court hereby reduces the mesne profits to Ug shs 5,000,000 with an interest rate of 6% (Court rate) per annum from the date of the lower court judgement until payment in full. - 53. In conclusion, this Court is inclined to believe that the trial Court correctly arrived at its conclusion when it decided in favor of the respondent/plaintiff. - 54. In the final result, this appeal partially succeeds with half the costs of the lower Court this Honorable Court awarded to the Respondent.

**I SO ORDER**.

**…………………………..**

**NALUZZE AISHA BATALA JUDGE 24th/05/2024**