[2024] UGHC 813

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 009 OF 2019

# (ARISING FROM CIVIL SUIT NO. 0030 OF 2011)

- 10 1. ALAMIGA PAUL in his personal capacity and as the legal representative of the late **MASKINI ATRILI** 2. GULE LUKA:::::::::::::::::::::::::::::::::::: **VERSUS** - 1. ONZIMA RONALD 15 <table>

2. ADEBUA SAMUEL: RESPONDENT

## BEFORE HON. JUSTICE COLLINS ACELLAM

(Appeal from the judgement and orders of Her Worship Mukoya Maureen, Magistrate Grade 1 at the Chief Magistrates Court of Arua at Arua dated 12^th December 2018 in Civil Suit No. 0030/2011)

## JUDGEMENT OF THE COURT:

#### **Brief introduction** 25

This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that; a) Judgement and orders of the trial court in civil suit No. 030 of 2011 be set aside and be substituted with the following orders;

- A declaration that the Appellants / Defendants enjoy security of occupancy on the 30 $i.$ suit land as provided by Article 237 (8) of the Constitution of the Republic of Uganda and Section 29(2) (a) and (b) of the Land Act 1998 and cannot be evicted. - A permanent injunction issues against the Respondents and their successors in title ii. restraining them from evicting the Appellants from the suit land. - iii. Costs of this appeal and in the trial court be awarded to the Appellants with interest 35 thereof at 8% from the date of judgement until payment in full.

#### Grounds of Appeal

- The grounds of Appeal as seen in the Memorandum of Appeal state; 40 - The Learned Trial Magistrate erred both in law and fact when she failed to properly 1. evaluate the evidence of DW1 Alamiga Paul, DW2 Gule Luka corroborated by DW3 and DW4 which shows that they were born on the suit land and wrongly held that the Appellants are trespassers on the suit land when in law they enjoy security of occupancy. - The Learned Trial Magistrate erred in law and fact when she ordered for the eviction $2.$ of the Appellants from the suit land when in law the Appellants enjoy security of occupancy on the suit land.

#### Grounds in Opposition 50

In opposition to the Appeal, the Respondent filed written submissions wherein they raise a preliminary objection to the effect that this appeal is incurably defective for non-


$\mathsf{S}$

compliance with the law; Order 43 rule 1 (1) of the Civil Procedure Rules which provides $\mathsf{S}$ that every appeal to the High Court shall be preferred in the form of a Memorandum signed by the Appellant or his advocate.

That the Record of Appeal filed by the Appellants suspiciously only contains the partial evidence of PW1, and tactfully omits not only the rest of the evidence of PW1 but also 10 the entire evidence of PW2, PW3, PW4 and PW5. Also, the locus proceedings have been omitted from the said Record of Appeal. Counsel then invites this Honourable Court to ensure that the complete record of proceedings in the trial court is available so as to do justice to this case.

That the Learned Trial Magistrate in her judgement clearly stated that she had the benefit to read through the testimonies of the plaintiffs, defendants and their witnesses together with the submissions of Counsel for the Defendant. We submit that the Learned Trial Magistrate did not err either in law or fact. The Appellants' complaints are not backed by any form of evidence whatsoever, we have looked at the authorities Appellants' Counsel relied to argue that the law on trespass to land aims at protecting the possessory interests of a claimant, we agree with the holding, our contention is on the application of the principles therein to the case at hand.

The Appellants' Counsel in his written submissions argued that even if the Appellants $25$ were trespassers, the cause of action was already barred by limitation. We submit that this line of reasoning introduces a new ground of appeal which was not formulated in the impugned Memorandum of Appeal and as such cannot be smuggled in by Counsel at the stage of submissions. The Appellants also did not lead any evidence to show if they are either lawful or bonafide occupants of the suit land. The Respondent concludes that 30

this appeal ought to be dismissed with costs to the Respondents.

#### Grounds in Rejoinder

- In rejoinder, the Appellant states that the law governing institution of appeals is Section 35 79(1) and (2) of the Civil Procedure Act. The law presumes that the 30 days commence from the date the court issues the Record of proceeding, not from the date of judgement. The Appeal herein was filed within 29 days from the date of issuance of the record of proceedings, we accordingly submit that the appeal was properly instituted and pray that the objection is overruled. It is evident that the Appellants have lived on the suit land for 40 more than 12 years by the time the suit was brought. Section 5 of the Limitation Act is very instructive and imperative in this case, and it was erroneous for the Trial Magistrate to order for the evictions of the Appellants. The Appellants conclude that this appeal is allowed, and the judgement and orders of the trial Magistrate be set aside. - 45

#### Representation

During the trial, the Appellants were represented by M/S Buga & Co. Advocates whereas the Respondents were represented by M/S Bandaru & Co. Advocates.

1 AAN

I have had the opportunity to peruse through the file inclusive of all pleadings and their 50 Annextures. Both Counsel for the Appellants and Respondents filed their submissions which I have duly put into consideration to come up with this decision. There is a

- rejoinder on record. I shall now proceed to enlist the grounds of appeal in contention. $\mathsf{S}$ The Respondents in their written submissions raised a preliminary objection which I shall consider first. - Section 79 of The Civil Procedure Act provides that an appeal to the High Court shall lie within 30 days of the date of the decree or order of the court. A notice of appeal does 10 not commence an appeal in the High Court from the judgment of the Magistrate's Court. An appeal is commenced by a memorandum of appeal lodged in the High Court. An appeal filed out of time without the leave of court is incompetent and will be struck out as incompetent (see Maria Onyango Ochola and others v. J. Hannington Wasswa [1996] - HCB 43; Loi Kageni Kiryapawo v. Gole Nicholas Davis, S. C. Miscellaneous Civil 15 Application No.15 of 2007 and Hajj Mohammed Nyanzi v. Ali Sseggane [1992 - 1993] HCB 218). - However, in computing the period of limitation prescribed by the section, the time taken by the court or the Registrar in making a copy of the decree or order appealed against $20$ and of the proceedings upon which it is founded is excluded (see section 79 (2) of The Civil Procedure Act). Where an appellant is unable to frame his or her grounds of appeal for want of a certified copy of the Decree, Order or record of proceedings and has been prompt in making application thereof, and through delay on the part of Court from which appeal is sought to be made has not been able to obtain such certified copy, the 25 applicant thereby furnishes sufficient cause for not filing the appeal in time, in which case an application for extension of time to appeal will be allowed. (See Geoffrey Nangumya T/a {Namgumya & Co. Advocates} Vs Security Plus (U) Limited HCMA No. 0858 OF 2021).

It is the Respondents' case that judgement was entered on 20^th February 2019, the Notice of Appeal filed in Court on 22^nd March 2019 and the Memorandum of Appeal on 29^th April 2021. Counsel for the Appellant states that the Record of Appeal was issued and certified on 30^th March 2021 while the Memorandum of Appeal was signed by the Assistant Registrar on the 29^th day of April 2021. Mathematical calculation shows that the Appeal was filed within 29 days from the date of issuance of the record of proceedings. That the Appeal was therefore properly instituted.

Under Section 79 (2) of The Civil Procedure Act; in computing the period of limitation prescribed by the section, the time taken by the court or the Registrar in making a copy 40 of the decree or order appealed against and of the proceedings upon which it is founded is excluded.

According to the Record of Appeal, judgement was entered in Civil suit No. 0030 of 2011 on 20^th February 2019, the decree was signed on 29^th January 2021, the Notice of 45 Appeal lodged in the Registry on 22^nd March 2019, and the Memorandum of Appeal lodged on 29^th April 2021. The Record of Appeal was issued on 29^th April 2021. In the case of Geoffrey Nangumya T/a {Namgumya & Co. Advocates} Vs Security Plus

(U) Limited HCMA No. 0858 OF 2021, Court stated that; "under Section 79 (1) of The Civil Procedure Act, an appellate court may for good cause admit an appeal though the 50 period of limitation prescribed has elapsed. Enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed.

- Article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995 is to the effect 5 that substantive justice shall be administered without undue regard to technicalities. This provision was not intended to do away with rules of procedure but in a reflection of the saying that rules of procedure are handmaidens of justice (see Utex Industries Ltd v. Attorney General S. C. Civil Application No. 52 of 1995). They are to be applied with - due regard to the circumstances of each case. It is not desirable to place undue emphasis 10 on form rather than the substance of the pleadings. Courts are not expected to construe pleadings with such meticulous care or in such a hyper-technical manner so as to result in genuine claims being defeated on trivial grounds. Courts have always been liberal and generous in interpreting pleadings. I have not found any unjustifiable inconvenience that

15 will be suffered by the applicant in the event of dismissing this application, yet a determination of the dispute on merits on appeal, would be in the best interests of both parties. Enlargement of time in the instant case by way of validation has no discernible substantive impact on the merits of the appeal... This is a proper case in which the court ought to, and does hereby, validate the respondent's belated filing of the memorandum of appeal." 20

In reliance of the law and the above precedent, I opine that a determination of the dispute between the parties on its merits on appeal is in the best interest of both parties. I therefore validate the belated filing of the Appellants' Memorandum of appeal, and hereby overrule the preliminary objection raised by the Respondents.

#### Ground 1

The Learned Trial Magistrate erred both in law and fact when she failed to properly evaluate the evidence of DW1 Alamiga Paul, DW2 Gule Luka corroborated by DW3 30 and DW4 which shows that they were born on the suit land and wrongly held that the Appellants are trespassers on the suit land when in law they enjoy security of occupancy.

In their submissions, the Appellants submit that it is trite law that the tort of trespass to land is concerned with possessory rights over a piece of land rather than proprietary rights. The Learned Trial Magistrate placed much reliance on the certificate of title in reaching the conclusion that the Appellants were trespassers, she was confusing an action for recovery of land which is based on proprietary interest to an action for trespass to land which is purely based with possession. From the plaintiffs' testimony, there is no indication of possession of the land, the record from the locus visit does not indicate any signs of possession by the respondents and the respondents are not sure of when the appellants entered the suit land. Even if the appellants were trespassers, the cause of action in the instant case was already barred by limitation of time by the time the suit was filed.

45 In response, the Respondents state that the Learned Trial Magistrate in her judgement clearly stated that she had the benefit to read through the testimonies of the Plaintiffs, Defendants and their witnesses together with the submissions of Counsel for the Defendant. It was on the strength of evidence that she found in favor of the Plaintiffs, that the suit land belongs to the Respondents / Plaintiffs and that the Appellants /

50 Defendants were trespassers thereon. The Learned Trial Magistrate made a finding that the defendants' written statement of defence does not challenge the existence of the certificate of title and neither does it have a counterclaim to have it cancelled if any,

- $\mathsf{S}$ Learned Trial Magistrate cannot be faulted for making such a finding as these are agreed facts during the scheduling of parties at the trial of this case. The Appellants' complaint that the Respondents / Plaintiffs were not in possession of the suit land is not backed up by any form of evidence whatsoever. We agree with the holding in the case of Odyeki Alex & Another vs Gena Yokonani & Others HC Civil Appeal No. 009 of 2017 and we do not argue otherwise, our contention however is on the application of the principles 10 therein to the case at hand. Even the evidence of the Appellants shows that the Respondents had possessory rights over the suit land; evidence of DW1 and DW2. DW1 and DW2 also gave a conflicting account of their claimed ownership of the suit land. - Appellants' Counsel argued that even if the Appellants were trespassers, the cause of 15 action was already barred by limitation. We submit that this line of reasoning introduces a new ground of appeal which was not formulated in the impugned Memorandum of Appeal and as such, cannot be smuggled in by Counsel at the stage of submissions, as according to Order 43 rule 2 of the Civil Procedure Rules. We therefore invite this Honourable Court to find that ground 1 fails. 20

#### **Consideration of Court**

### Duty of the first Appellate Court.

The first appellate Court has a duty to review the evidence of the case and to reconsider $25$ the materials before the trial judge. Then it must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it, see the decision in Kifamunte Henry vs Uganda SCCA No. 10 of 1997.

30 I shall note that, as stated by Counsel for the Respondents in their submissions, the Record of Appeal filed by the Appellants omits part of the evidence by PW1 and all the evidence of PW2, PW3, PW4 and PW5, and notes from the locus visit are not attached. This raises concerns coupled with the fact that Counsel for the Appellants makes no mention of it or gives reason as to why the same happened. I shall therefore refer to the paragraphs mentioned in the Respondents' submission as confirmed by the evidence mentioned in the judgement.

On perusal of the record of proceedings and judgement, I note that the Learned Trial Magistrate makes clear reference to the evidence adduced by both parties and Counsel for the defendants stated that he had no objection at all times when admission of the 40 Plaintiffs' exhibits was raised. I therefore do not fault the Learned Trial Magistrate for deciding that since the defendants' written statement of defence does not challenge the existence of the certificate of title and neither does it have a counterclaim to have it cancelled if any, in reliance on Section 59, 64, 77, 136 and 176 of the Registration of Titles Act Cap 230 and the mentioned case law, I find that the suit land belongs to the late Nelson Oji now under the administration of the Plaintiffs.

The Learned Trial Magistrate then went ahead to resolve whether the defendants (Appellants herein) are trespassers or not, relying on the case of Justine E. M Lutaya V Sterling Civil Engineering Co. SCCA No. 11 of 2002 cited with approval Moya Drift Farm ltd V Theuri (1973) E. A 114. The Learned Trial Magistrate made reference to the evidence of PW1 and PEX3 & 5 then also DW1, she then evaluated the evidence stating

that the evidence of the Plaintiffs was affirmed by an expert witness PW4 who is a $\mathsf{S}$ Valuation Surveyor with Stan Field Partners Ltd. The Learned Trial Magistrate noted that DW2 in cross examination stated that the clan land was about 71 acres, he claims 5 acres but only occupied 2 acres, both DW3 and DW4 corroborated the defence evidence. Court at locus found that the suit land only comprises of about 5.2 acres as the remaining chunk of land was not disputed by both parties. The Learned Trial Magistrate found that 10 the homesteads of the defendants as stated in their evidence falls outside the suit land in the East, and the only encroachments are seasonal crops grown in the North by DW1 and the land he has lent out to Esele Raymond for cultivation, 3 grass thatched houses and a line of tick trees. Therefore, since there was no permission by the Plaintiff for the defendants to occupy the suit land, the Learned Trial Magistrate found them to be 15

I therefore agree with the explanation in the Respondents submissions in regards to the decision of Court in Odyeki Alex & Another vs Gena Yokonani & Others HC Civil Appeal No. 009 of 2017. I entirely agree with the decision of Court, and I respectfully 20 disagree with Counsel for the Appellants' application of the principles in the case therein to the instant case, by the Appellants. The Learned Trial Magistrate clearly and very elaborately evaluated all the evidence on record by both parties and made a decision. There is no evidence adduced by the Appellants in the trial court to show that they were born on the suit land, there are clear inconsistencies and a change of story by the 25 Appellants as to how they gained ownership or came onto the suit land. The Appellants' witnesses themselves affirm that they found resistance from the caretakers of the land on behalf of the Respondents while trying to occupy it. This leaves no other explanation than the fact the suit land belongs to the Respondents who have a clear and uncontested certificate of title and the fact that the land claimed by the parties seems to defer in size 30 and position as stated in the judgement of the Learned Trial Magistrate.

Regarding the argument of Counsel for the Appellants that, even if the Appellants were trespassers, the cause of action was already barred by limitation, I have carefully read the authorities relied on by Counsel and submissions of both parties on the same. I am inclined to agree with Counsel for the Respondents' response on this. Order 43 rule 2 (1) of the Civil Procedure Rules is instructive on this; it states that; the Appellant shall not, except by leave of court, urge, or be heard in support of any ground of objection not set forth in the memorandum of appeal. I shall therefore not consider the entire part of

the submissions of the Appellants regarding limitation of time within which recovery of the suit land could have been done. The Appellants also did not raise any point regarding limitation of time at the trial of this matter.

In light of the above, and the authorities referenced, I am inclined to decide that the Learned Trial Magistrate rightly held that the suit land belongs to the Respondents and

the Appellants without their permission utilized their land (the suit land) thus making 45 them trespassers on the land. This ground therefore fails.

Ground₂

The Learned Trial Magistrate erred in law and fact when she ordered for the eviction 50 of the Appellants from the suit land when in law the Appellants enjoy security of occupancy on the suit land.

$\sim$ $\sim$

In their submissions, the Appellants state that in law, lawful occupants enjoy security of tenure as stipulated under Article 237(8) of the Constitution read together with Section 31 (1) of the Land Act and thus a lawful occupant cannot be a trespasser. That at the time the leasehold certificate of title possessed by the Respondents was granted to Nelson

- Oji (from whom the Respondents claim title), the tenancy of the Appellants had not been 10 disclosed or compensated. They therefore enjoy security of tenure as lawful occupants on the suit land according to Section 29(1)(c) of the Land Act Cap 227. - In response, the Respondents state that it is unclear from the Appellants' pleadings and even evidence as to whether they are purporting to be bonafide or lawful occupants of 15 the suit land since they cannot be both at the same time. The Appellants aver that having stayed on the suit land since time immemorial, they qualify to be bonafide or lawful occupants thereto with security of tenure; save for claiming to have been born and bred on the suit land and that they reside thereon, the Appellants did not lead any evidence to show if they are either lawful or bonafide occupants of the suit land. It is also not true $20$ that the Appellants have been living on the suit land or that they live thereon as according to the evidence of the Plaintiffs at the trial which was unchallenged during cross examination. The Appellants therefore do not qualify to be either lawful or bonafide occupants. Since the Learned Trial Magistrate found them to be trespassers on the suit - land, she rightly ordered their eviction therefrom. $25$

#### Consideration of Court

#### Article 237 of the Constitution of the Republic of Uganda, 1995 states that;

- 30 (8) Upon the coming into force of this Constitution and until Parliament enacts an appropriate law under clause (9) of this article, the lawful or bonafide occupants of mailo land, freehold or leasehold land shall enjoy security of occupancy on the land. (9) Within two years after the first sitting of Parliament elected under this Constitution, Parliament shall enact a law- - (a) regulating the relationship between the lawful or bonafide occupants of land referred 35 to in clause (8) of this article and the registered owners of that land; - (b) providing for the acquisition of registrable interest in the land by the occupant.

Section 29 of the Land Act Cap 227 provides for the meaning of "lawful occupant" and "bona fide occupant".

(1) "Lawful occupant" means—

- (a) a person occupying land by virtue of the repealed— - (i) Busuulu and Envujjo Law of 1928; - (ii) Toro Landlord and Tenant Law of 1937; - (iii) Ankole Landlord and Tenant Law of 1937; 45

(b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or

(c) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

(2) "Bona fide occupant" means a person who before the coming into force of the 50 Constitution-

$\mathsf{S}$

- $\mathsf{S}$ (a) had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or (b) had been settled on land by the Government or an agent of the Government, which may include a local authority. - In the case of Bugembe Kagwa Segujja V Steven Eriaku & Alvin Ssetuba Kato Hc Civil 10 Suit No. 202 Of 2016, the suit was set down for hearing under Order 9 rule 11 (2) of the Civil Procedure Rules the decided exparte and Court stated that;

"There is evidence on record to show that the Plaintiff has been in occupation of the suit land for over 12 (twelve) years and has developed his kibanja with a house and a farm. The kibanja also has burial grounds for the Plaintiff's family... The Plaintiff has further testified that he exercised the right to buy a mailo interest in the suit land from the late Besweri as per the exhibits P1 and P3. This evidence confirms that the Plaintiff is a bonafide/lawful occupant on the registered land by virture of having been there for over 12 (twelve) years and having bought his mailo interest from the registered proprietor - Besweri

Lutakome... I agree with Counsel for the Plaintiff in his assertion that Article 237(8) of the Constitution, Sec 31 of the Land Act, (supra), and Section 64 (2) of the Registration of Titles Act Cap 230, recognize the security of tenure of a bonafide occupant on land..."

In the instant case, the Appellants state that they started living on the suit land when they were born and that they reside thereon since time immemorial, their father was buried on the suit land and his grave is visible there. There are trees on the suit land which DW1 planted after he came back from exile in Sudan in 1987 and the ones his father planted on the suit land, they also built houses on the suit land that DW1 built in 1987 after he came back from exile and states that he doesn't have another home outside the suit land. He started using the land immediately when his father died, he doesn't know about the certificate of title by the Respondents, and he has never been chased out

In the judgement, the Learned Trial Magistrate clearly states from the evidence adduced and at locus, court found that the homesteads of the Appellants are outside of the suit land, the suit land only comprises of about 5.2 acres and the remaining chunk of land was not disputed by the parties, therefore since the Appellants did not challenge the certificate of title possessed by the Respondents and there were only some encroachments on the suit land, the suit land belonged to the Respondents.

The Respondents adduced evidence at the trial showing how the trespassers on their land were dealt with over time; that the 1^st Appellant first encroached on the suit land in 1993, was talked to and vacated, then made a re-entry around 2008-2009 after the death of Marko Chaku whom PW1 had also warned for trespass. The 2^nd Defendant entered onto the suit land around 1993 then left, and later around 2010 with the 3^rd Defendant, trespassed on the suit land. This evidence was unchallenged at trial and corroborated by all the Plaintiffs witnesses.

The Appellants therefore failed to prove at trial and lead evidence to show that they reside on the suit land and or have been in occupation of the suit land since their birth.

$\cdot$ $\cdot$ $\cdot$

The Appellants are not lawful occupants on the suit land because they did not occupy the suit land under the repealed laws mentioned under section 29(1) (a), they did not enter the suit land with the consent of the registered owner and there is no evidence on record to prove that at the time the certificate of title was acquired in 1970 they were already in possession as customary tenants. They also do not qualify as bonafide occupants because evidence was led by the Respondents to show that they trespassed on the suit land in about 2009-2010, on all the other occasions, they had been chased off

the land and they left it. Their re-entry in 2009-2010 had actually been challenged by the

1^st Respondent at all times and he even wrote to them and organized a meeting through the Land office of Yumbe. 15

The Appellants therefore do not enjoy security of occupancy on the suit land and the Learned Trial Magistrate rightly ordered for their eviction from the suit land, having ordered and resolved herein in ground 1 that the suit land belonged to the Respondents. An order of eviction was a resultant order from the declaration of court that the defendants were trespassers on the suit land who utilized it without the consent of the rightful owners.

Therefore, the authorities cited by the Appellants are good precedent and I don't opine otherwise, I however realize that the circumstances in the cases are quite different from $25$ those in the instant case and they were misapplied by Counsel.

This ground also fails.

As all the grounds of this appeal fail, this appeal is accordingly dismissed with costs to 30 the Respondents. The Judgement and all Orders of the Trial Court are hereby upheld.

I so order.

**JUDGE**

| 35 | Delivered this $\infty$<br>day of. | |----|------------------------------------| | | .074 | | 40 | Collins Acellam |

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