[2023] UGCA 385

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT **KAMPALA** CIVIL APPEAL NO. 269 OF 2019

#### Coram: $\overline{5}$

Hon. Mr. Justice Richard Buteera, DCJ Hon. Lady Justice Catherine Bamugemereire, JA Hon. Mr. Justice Stephen Musota, JA

#### ASTON MANYINDO :::::::::::::::::::::::::::::::::::: $10$ **VERSUS**

#### 1. ALITUHA EDWARD

**2. MUGABO BEATRICE ::::::::::::::::::::::::::::: RESPONDENTS**

(Appeal from the decision of Masalu Musene, J dated 13^th March 2019 in the High Court of Uganda at Fort Portal in HCCA No. 28 of 2017)

### **JUDGMENT OF CATHERINE BAMUGEMEREIRE, JA**

This is a second appeal arising from the Judgment of the High Court before Masalu Musene, J in which he allowed the respondent's appeal holding that they were **bona** fide occupants having derived their interest from their father and that they were, in turn, not trespassers on the disputed land.

#### **Background**

The background to this appeal as can be ascertained from the lower court record was that the Appellant/Plaintiff filed Civil $25$ Suit No. 36 of 2013 against the respondents in the Chief Magistrates Court of Fort Portal seeking an eviction order against the respondents, a permanent injunction restraining the respondents from making further developments on the disputed land, a demolition order for the illegal structures, $30$ compensatory damages, general damages, interest and costs.

$15$

$20$


disputed land, a demolition order for the illegal structures, compensatory damages, general damages, interest and costs. The Appellant claimed that he was the registered proprietor of land comprised in Block 20 Plot 3 at Buhaza measuring s approximately 4O acresHis claim was that between 2OO9 and 2OL2 the lst and 2"d respondents trespassed on the disputed land and constructed two structures among other developments.

The respondents in their defence argued that they were bona 10 .ftde occupants on the suit land having acquired it from their father the late Placid Taliwanyuma who had occupied the sarne tand for over 50 years. Their father, the late Placid Taliwanyuma, was interred on the disputed piece of land.

o

o

The learned chief magistrate found in favour of the appellant 15 and issued eviction orders against the respondents from the plots on which they had constructed their structures. He further issued a permanent injunction, an order for demolition of the respondents' structures, general damages and costs.

Being dissatisfied with the decision of the learned chief 20 magistrate, the respondents appealed to the High court vide HCCA No. 2A of 2OL7, which decision overturned the chief magistrate's decision and found that the respondents were bona .ftde occupants protected by law and that they were not trespassers on the disputed land.

The appellant was dissatisfied with the judgment of the $1^{st}$ Appellate Court filed this appeal with 5 grounds as per the Memorandum of Appeal.

#### **Grounds of Appeal**

- 1. The learned Judge as a $1^{st}$ appellate court erred in law by failing to subject all the evidence on record to a thorough scrutiny thereby arriving at a wrong conclusion. - 2. The learned Judge erred in law when he held that Placid Taliwanyuma was a bona fide occupant who passed on his interest in the suit land to the respondents as per the provisions of Section 29 (2) (a) of the Land Act. - 3. The learned Judge erred in law when he failed to properly evaluate the evidence on record and came to a wrong decision that the respondents were bona fide occupants on the suit land. - 4. The learned Judge erred in law when he held that the suit land was part of the Kibanja occupied by the respondents' father Placid Taliwanyuma in the absence of evidence to support his findings. - 5. The learned Judge erred in law when he interfered with the learned trial Magistrate's discretion to award general damages to the Appellant.

$25$

$\mathsf{S}$

$10$

$15$

$20$

#### **Representation**

At the hearing of the appeal, Mr. Herbert Baluku represented the appellant while Mr. Bernard Musinguzi represented the respondents. Both parties were present in court. Both counsel

for the respective parties indicated that they would proceed by 30 written submissions, which they duly filed and court has considered them in this judgment.

### Legal Arguments

o

Counsel for the appellant argued Grounds No. 1 and ³ together. He faulted the lst appellate judge for failing to subject the evidence on record to a thorough scrutiny and thus holding that the respondents were bona fide occupants.

Counsel obserwed the duty of this court as a 2"d appellate court. He cited Baguma Stephen v Byraru hansa John CACA No. 37 of 20^L7 where this court held that;

O ¹⁰ "...it is impossible to lay down an exhaustive list of such cases, but I am of the considered opinion that where the two lower courts have reached different findings of fact on the evidence, in the interest of justice, the 2"d appellate court should reevaluate the evidence, in order to determine which of the two decisions is supportable on the evidence...'

It was counsel's averment that both courts were alive to the critical position of the law on bona .ftde occupancy being s. 29 (21 (al of the Land Act but applied it inversely thus arriving at different decisions. 15

Counsel also argued that the learned Chief Magistrate was correct in finding that the respondents trespassed by encroaching on the appellant's land beyond what their father occupied. 20

It was counsel's submission that the trial Magistrate arrived at the above decision having properly considered evidence of both the prosecution and the defence and was alive to the facts that the respondent's father had inherited another person's Kibanja

but had extended his interests by constructing a permanent house beyond the reco gnized Kibanja. Counsel averred that the trial Magistrate was alive to how far the respondents' father was permitted or licensed to continue construction. 5 Counsel submitted that the trial magistrate was in a better position to make a correct decision since he had the opportunity of seeing the witnesses and visiting the locus in quo.

10 Counsel further submitted that the respondents who are children to the said TaliwanJruma contrarSr to what had been agreed upon between the appellant and Taliwanyuma encroached on the remaining piece of land by first grabbing plots of land being part of the appellant's unencumbered piece 15 of land. Secondly, contrar5r to the already contested position that bibanja holders were never to construct any house without consent of the land lord, the respondents went ahead and constructed under the guise of having inherited their father's Kibanja interest whereas not.

It was counsel's contention that the lst appellate judge considered the appeal with divergent positions when he observed that what was in contention was whether the respondents (formerly appellants) were bona tide occupa.nts of approximately 4 acres on the said registered land of the appellant herein. Counsel submitted that the lst appellate

o

O

judge considered the evidence of DW ¹ , DW2 and DW3 and held that the case of the respondents (appellants) was very consistent and straightforward and supported by their father, an old man of 9O years.

- 5 Counsel further contended that the learned 1st appellate judge appeared to have only considered the evidence of DW 1 , DW2 and DW3 without giving reasons for his disagreement with the learned Trial Magistrate who heard both sides and considered their evidence to pass his judgment. - O10 Counsel prayed that this court finds that the learned 1st appellate judge failed in his duty as a 1"t appellate court to evaluate the evidence on record and arrived at its owrr independent decision, which occasioned a miscarriage of justice. He invited this court to re-evaluate the evidence. - 15 Regarding grounds No. 2 and, 4, counsel for the appellant faulted the l st appellate judge for holding that TaliwanJruma was a bona .ftde occupa.nt and that the disputed land was part of his kibanja.

o

20 25 Counsel for the appellant submitted that the contested land was approximately two plots each measuring 50 feet by 1OO feet which the respondents curved out along the road and constructed permanent structures thereon without the consent of the appellant, the registered proprietor. It was counsel's contention that the respondents trespassed beyond what the appellant allowed their father to occupy. Counsel referred to S. 29 l2l of the Land Act and Kampala District

# Land Board & Anor v Ve Babwevaka&SOrsSCCA No. 2 of 2OO7, which define a bonq.ftde occupant.

Counsel relied on the evidence of PW 1 that when he bought the land, there were only four homesteads belonging to s Michael Katima, Mutodio, Rwakaikara and Benwa who were tenants of the previous owner and are all deceased. The Appellant testified that he discovered that a one Taliwan5ruma had occupied the mud and wattle house of Michael Katima without his permission and he was utilizing Katima's Kibanja 10 measuring between 1.5 and 2 acres. Further, that in 2005, the appellant discovered that Taliwanyuma was building another house above the mud wattle house towards the road, away from the Kibanja formerly owned by Katima without the consent of the appellant but he allowed him to occupy the 15 house and not go beyond that point.

It was counsel's argument that by building on the land beyond the house of their father, the respondents exceeded the boundaries of land that their father was allowed to occupy and violated the agreement made in 2OO9 by the appellant and the zo tenants on the land an act that was tantamount to the tort of trespass. Counsel drew the attention of the court to the fact that, the respondents were not on the land by the time the appellant purchased the same in 1983; hence do not qualify to

be called bona lide occupa.nts within the meaning of S. 29 l2l zs of the Land Act.

o

o

Regarding ground No. 5 counsel for the appellant submitted that the 1st appellate judge misapplied the law relating to the award of general damages.

It was counsel's contention that appellate courts would not S interfere with the award of general damages by lower courts except where the court has not properly appraised the evidence in assessing the damages.

He cited Robert Coussens v 1L998-2OOO| HCB 26 for the proposition that the award of general damages is at the discretion of the court but general damages should put the party at the position they were before. Counsel submitted that the appellant suffered loss since he had planned to put up a modern farm on his land but could not carry out these plans with the respondents' acts of trespass. Counsel contended that the trial Magistrate had the discretion to award general damages to the appellant as he did.

In conclusion, counsel for the appellant prayed that the appeal be allowed with costs.

## zo The Respondents' Submissions

O10

o

In response to Grounds 2, 3 and 4, counsel for the respondents submitted that the l"t appellate court judiciously and properly evaluated the evidence on record and arrived at a correct conclusion that the appellants were bona .ftde zS occupants and hence not trespassers on the disputed land. Counsel averred that the learned lst appellate judge rightly

B

found that the appellants were bona .ftde occupa.nts on the suit land having derived the interest from their father.

It was counsel's submission that the lst appellate judge found the evidence of the respondents credible and it had been 5 corroborated by other pieces of evidence, that is; the appellant who recognized Taliwan)ruma's occupancy, DW3 father of the respondents and PW2 Kajumba Margaret. Counsel submitted that PW2's evidence was evaluated as clearly shown on record. He contended that counsel for the appellant's argument that 10 the lst appellate judge considered evidence of the respondents only without looking at that of the appellant is a fallacy and misdirection of court.

15 20 It was counsel's submission that the appellant's contention that there was nothing to prove that the respondents' father was an occupant at the time the appellant purchased land in 1983 is a clear misapprehension. Counsel argued that PWl, the appellant admitted that Placid Taliwanyuma was on the land and he recognized his occupancy. Further, that PW2 also acknowledged that DW3, Taliwan)ruma was a brother to Katima, that they were born on that land and their father was buried there as well. It was counsel's averment that this evidence was subjected to that of DW 1, DW2 and DW3 and found to be corroborative.

25 Counsel crittcized the appellant's evidence for being hearsay and therefore not admissible before a court of law. He noted

o

o that PWl stated, "... I heard that Taliwanyuma came from Butiiti area. He occupied the house of Katima on my land. I discovered this in 1994."

- 5 Counsel added that from scrutiny of the alleged agreement, EXII P.5 tendered in court was a letter written by the appellant himself with recipients' names on the back and was clearly not an agreement. He added that since DW3, Taliwanyuma did not attend that meeting there was no way he could be bound by the purported agreement. - o10 It was counsel's contention that the learned 1st appellate judge rightfully evaluated the evidence on record and came to a correct conclusion that the respondents were bona .ftde occup€rnts on the disputed land. - 15 Counsel further argued that the appellant's contention that Placid Taliwanyuma was a licensee is unfounded and there was no evidence to prove it. He submitted that Taliwan5ruma was a bona fide occupant on the land and could allocate it to his children as he did to the respondents herein.

o

On the issue of general damages, counsel for the respondent submitted that the lst appellate judge rightly interfered \Mith the discretion of the Trial Magistrate in awarding general damages of UGX IO,OOO,OOO 1=

zs He cited Kibimba Rice Companv ttd v Umar Salim SCCA No. 7 of 1988 where it was held that evidence must be led to prove claims for general damages for inconvenience, mental anguish and suffering. It was counsel's contention that there was no evidence from tJ:e appellant regarding the inconvenience suffered.

5 Counsel prayed that the Judgment of the trial Court be upheld and this appeal be dismissed with costs to the respondents'.

## Decision of the Court

10 I note that this is a second appeal. The duty of this court as ^a second appellate court is laid down under rule 32121 of the Constittttional Judicature (Court of Appeal Rulesl Directions SI 13- 10 which provides that; "on any second appeal from a decision of the High Court acting in exercise of 15 its appellate jurisdiction, the court shall have power to appraise the inferences of fact drawn by the trial court, but shall not have discretion to hear additional evidence." This Court is therefore obliged to appraise the inferences of fact drawn by the trial court.

The duty of a second appellate court is intertwined with the duty of a first appellate court although the two are different. The Supreme Court distinguished clearly the duties cast on each court in Kifamunte Henry v Uganda Criminal APpeal

25 No. 10 of 1997 thus

LL

o

"We agree that on a first appeal, from a conviction by a Judge the appellant is entitled to have the appellate Court's ow:l consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review s the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its owrl mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather over 10 another; that question turns on ma.nner and demeanour of such witness' the appellate Court must be guided by the impressions made on the judicial official who saw and heard the witness first hand. However, there may be other circumstances quite apart from the manner and demeanollr, 1s which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witnesses which the appellate Court has not seen. See Pandva v R ¹ 95,4 EA 336. It does not seem to us that except in the clearest of cases, we zo are required to re-evaluate the evidence like in a first appellate Court save in Constitutional cases. On second appeal it is sufficient to decide whether the first appellate Court on approaching its task, applied or failed to apply such principles:" See Pandya v R (supraf. t

o

o

zs The duty of a second appellate court is to examine whether the principles, which a first appellate court should have applied,

L2

were properly applied and if it did not, for it to proceed and apply the said principles.

5 Basing on the above deliberations of the duty of this court as a 2"d appellate court, I shall proceed to determine the grounds of this appeal. However, I wish to point out that from my observations, the grounds in this appeal rotate around the issues of whether the respondents' father was a bona .ftde occupant who passed his interest to the respondents and further, whether he encroached on the appellant's portion when he passed on more than his share of the disputed land. If these two questions are determined, then the question whether there was trespass \ rill also be answered. In the premises, I will determine Grounds No. L,2,3 and 4 jointly then ground No. 5 separately. 10 15

In Grounds No. lr 21 3 and 4 the appellant faulted the 1st appellate judge for finding that the respondent's father was a bona .fide occupant who passed on interest to the 20 respondents thus the respondents were bona fide occupants and not trespassers.

In order to make sense of the facts in this case and provide clarity I shall make reference to the two findings of the lower 25 courts before I draw my own conclusion.

L3

o

In the trial court, the trial Magistrate noted in his judgment that it was the evidence of Taliwanyuma that the disputed property is limited to two structures put up by the respondents (defendants) after Taliwanyuma's permanent 5 structure and that they are along the main road. The learned trial Magistrate noted that the two structures could have been on plots less than SOfeet byloo feet each. Further, that the bone of contention was not the approximate 4 acres on which Taliwanyuma was settled but the two structures above his 10 house along the main road built by the respondents/ defendants.

o

o

The trial Magistrate in his evaluation of evidence found that the issue for discussion was whether Taliwan5ruma's interest in land extended up to the roadside on which his children, the 15 respondents built their perm€rnent houses.

Upon deliberating on these matters, the learned trial Magistrate arrived at the conclusion that Taliwan5ruma and the defendants were not bona .frde occupants because the location of the two structures put by the respondents in 2O 1 ¹ zo was in a prime location right next to the road and that this area had been unoccupied for a long time.

The learned trial Magistrate also relied on the fact that Taliwanyuma and Katima built further down in the slope leaving such a prime location on the roadside a sign that he ZS was aware that he had no authority over the land at the roadside. The trial Magistrate further formed the opinion that

L4

Taliwanyuma's son Asiimwe purchased a plot from Mubiito right next to the structures on the disputed land before the structures were built, and he wondered why Taliwan5ruma never gave Asiimwe the same plot like he gave to the 5 defendants if he had the authority to do so.

The 1st appellate judge obsenred that what was in contention was whether the appellants (respondents herein) were bona .ftde occupants of approximately 4 acres on the said registered 10 land of the respondent (appellant herein).

For emphasis I will re-state what the lst appellate judge court found as below;

"Placid Taliwan)ruma emphasized that his Kibanja stretches from where his old structure is up to the road where shops are

15 located. However, on page 5 of his judgment, the trial magistrate stated that the bond of contention is not the approximate 4 acres on which Taliwan5ruma is settled but rather the two structures above his house along the main road. That was an erroneous finding and was not supported by

zo evidence on record as clearly stated by DWL, DW2, and DW3. There is no way Taliwan5ruma's Kibanja can be separated from the appellants' structures because TaliwanJruma (was sic) the father of the appellants. And out of this s€une Kibanja, he gave his other children, Jolly Deogratious and Byamuk€una Clovis zs who were not sued...the moment the respondent recogntzed the occupancy of Placid Taliwanyuma who gave the appellants

o

as his children, then there is no way those developments can be separated. Placid Taliwanyuma clearly testified that his Kibanja extended up to the road where the shop structures put up by the appellants were. And Aston Manyindo 5 recognized the appellant's father as having been there for ^a long time and did not dispute his occupancy."

The lst appellate judge based on the above analysis to hold that the respondents herein were bona .ftde occupants having O 10 acquired their interest from their father. In Jane Magango & ² Ors v W, Kalibala William CACA No. 11 of 2o^19. this court noted that the second appellate court will only interfere where the facts established by the trial court and the first appellate court are not supported by law because that then 15 becomes a finding on the law.

> In Pandya v R (supral as I have already noted above, but for emphasis, the duty of this court as a second appellate court is to examine whether the principles, which a first appellate court should have applied, were properly applied and if it did not, for it to proceed and apply the said principles.

> I \Mill be guided by the above considerations to determine this second appeal. I will first appraise the law on who is a bona .ftde occupant in Uganda.

Section 29 l2l of the Land Act provides as follows:

o

l2l "Bona ftde occupant" means a person who before the coming into force of the Constitution-25

T6

(al 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

(bl had been settled on land by the Government or an 5 agent of the Government, which may include a local authority.

This implies that for one to qualify to be a bona .frde occr,tpatr:t, they must have settled and utilized the land 10 unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution. This would mean that they must have settled and used the land before Sth October 1983.

## i.5 In Kampala District Land Board & anor v National Housing & Cons Corooration SCCA No. 2 of 2OO4. Odoki CJ

(as he then was) held that;

"I have already held that the respondent had been in occupation or possession of the suit land for more than twelve

- zo years at the time of coming into force of the 1995 Constitution. The respondent had not only occupied the land but had also utilized it, without any challenge from Kampala City Council. The respondent was entitled to enjoy its occupancy in accordance with Article 237 (81 of the Constitution and Section - zs 31(1) of the Land Act if the suit land was registered land.

o

In Dr. William Kaberuka & Anor v N.k Investments Ltd & KamDala ^D Land Board CACA No. 80 of 20()8 , this court held that;

"It appears to us clearly that for one to qualify to be a bona s fide occupant that person must have occupied and utilized the land in issue, or must have developed it. Utilization or occupation alone would not suffice. They both must be present."

## O 10 Further in Kalva&2OrsvMoses kenvu CACA No. ⁸² of 2OL2 this court found that;

"It was necessary in our view for the respondent to prove that he had bought the 'bibanja'in issue before 1983, and occupied them unchallenged for twelve years before the 15 coming into force of the Constitution... Even if therefore, the respondent had been in occupation of the disputed extra land after 8th October 1983 1993 he would not qualify to be a bona.frde occupant, under Section 29 of the Land Act."

zo In this case, the appellant stated in his plaint that he is the registered proprietor of land described as Plot 3 Block 20 measuring 40 acres which he acquired in 1983. This is not ^a disputed fact. It was a fact that the defendants (respondents herein) are children of Placid TaliwanJruma who was already 2s resident on the land at the time the plaintiff acquired the same in 1983 and had a mud and wattle house with a small garden.

o

Further, that the defendants were not resident on the land till 2OO9 when the l"t defendant surfaced layrng a claim on the land. The appellant averred that in May /June 20ll, the 2"d defendant came in guise of visiting the father and decided to 5 construct a permanent house on the land. He further testified that the l"t defendant settled in 2Ol2 and others joined constructing structures.

Placid Taliwanyuma contended that he was in occupation of i.0 the contested property for over 5O years and he inherited the s€une from his father Murusura who was buried on the s€une land. The respondents (defendants) stated that they were residents of the land and only left to seek emplo5rment. They argued that their father gave them the land where they 1s constructed their homes. Placid alleged that he built his semipermanent structure in L94O, which is still there with ^a banana plantation and that he has been in possession and utilizing the land since without any disturbance.

In his evidence in chief, the appellant stated that he finally z0 settled back in 1994. That Taliwanyuma occupied the land left by Katima Michael but he drifted from where he was and carne to replace his late brother Katima. The appellant stated that he discovered this in L994 when he returned.

The appellant testified that the respondent's father had been 25 on the land for a long time and he recognized his occupancy. In cross-examination, he stated that he does not know when

T9

a

O Taliwanyuma calne onto his land but he just found his plantation trees and fruits in L994. He stated that he could not be specific on their exact location but found them staying in the old house. The appellant stated further that he does not know who constructed the house but it was Katima and that he has never used the land in contention.

o

The appellant stated that he did not know the people who planted trees in that area and that he never met Katima but was told he was one of the people on the land.

O10 15 PW2, Kajumba Margaret testified in her examination-in-chief that the appellant acquired the land in 1983 and they entered a sale agreement. She she further asserted that TaliwanJruma built a permanent house where Katima had a house. In crossexamination, she stated that Taliwanyuma was also born on that land and was a brother to Katima. She stated that their father was buried on that land.

For the respondents, DWl Mugabo Beatrice testified that their father, TaliwanJruma gave her a piece of land measuring Soft Z0 by looft on the Sth of July 2OLO and she got permission from the Sub-County to build. That on 3 / LL /2OLl, the father Taliwanyuma put it in writing giving the plot to her which was part of the family land. She further testified that the family land is approximately 4 acres with banana plantations, zS jackfruit trees pine trees, avocado, and two brothers have also built on the sEune.

DW2 testified that he was given land on 13th December 2Ot3, 5Oft by 10oft by his father Placid TaliwanJruma and he built rentals on his plot. He stated that the plot is within the 4-5 acres his father possesses. He obtained permission from the

5 town council to build. Didn't know that land belonged to someone else.

DW3 Placid Taliwan5ruma evidence was that he acquired land by inheritance as his father's heir. He asserted that the land is approdmately 5 acres. He confirmed that he gave the 10 respondents permission to build the two structures. He asserted that his Kibanja stretched from where his old structure was to the road where shops are located. He admitted that he gave Byamukama and Jolly land to build their houses.

From the above evaluation of facts, it is not in dispute that the appellant is the registered owner of land comprised in Plot ³ Block 2O land at B:uhaza measuring approximately 4O acres, on which the contested Kibanja is situate. The respondents zo stated that they acquired land approximately 50\* 100 each from their father.

P1acid Taliwan)ruma, the respondents' father occupied approximately 4-5 acres. In his evidence, he asserted that he 25 was born on the said land and had lived on it for over ⁵⁰ years. Placid testified that he built his semi-permanent

2L

o

o

structure in 1940, which is still there with a banana plantation.

The appellant on the other had asserted that he was not sure when Placid carne onto the land but just discovered in L994 that he had moved into Katima's old structure without his permission but he left him. The appellant stated that he recognized Placid's occupancy.

o

O10 15 20 25 From this evidence it has been established that indeed Placid Taliwanyuma had been on his kibanja for over 12 years and the appellant did not rebut his evidence. The appellant was not sure when Placid settled on the land, his evidence that he discovered in 1994 that Placid moved to the land was an afterthought to defeat the interest of Placid Taliwanyuma who proved that he was on the land for over 8 decades. Further, the appellant was not specific as to when Placid c€une onto the land. In his evidence, he just gave estimates yet on the contrary Placid was firm in the testimony that he was born on the land and built his structure in 1940. This evidence was corroborated by PW2, the appellant's witness at the trial court who testified that Placid Taliwanyuma was born on that land and their father had been buried on it. The appellant also clarified that he no objection to Taliwanyuma remaining on his part of the land and recognized his kibania occup€rncy. He however, contested the extra land the appellants had encroached on as not forming part of the kibanja.

It is my finding therefore that Placid Taliwanyuma having occupied and used his kibanja of 4-5 acres over five decades unchallenged by the registered owner, qualified to be a **bona** *fide* occupant within the meaning of the law.

- In accordance with **S. 29 (5) of the Land Act**, any person who $\mathsf{S}$ has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant under this section shall be taken to be a **bona fide** occupant for the purposes of this Act. - The more important question is contained in **Ground No. 4.** $10$ whether the learned Judge erred in law when he held that the suit land was part of the Kibanja occupied by the respondents' father Placid Taliwanyuma in the absence of evidence to support his findings.

$15$

The appellant submitted that the respondents could not acquire any interest as bona fide occupants through Taliwanyuma outside of the land on which he was allowed to occupy. It was the appellant's evidence that the land on which the respondents settled was not part of the 4-5 acres owned by $20$ Placid Taliwanyuma, their father. On the other hand, the respondents claimed that the land on which they established themselves was part of their father's land and he gave each approximately 50ft by 100ft. It was also the evidence of the respondents that their father also gifted their other siblings; $25$ Clovis Byamukama and Jolly Deogratious.

A thorough re-evaluation of the two lower court records leads to the conclusion that the trial Magistrate's may have

$23$

misdirected himself when he concluded that the respondents were not bona .frde occupants however, the learned trial Magistrate visited the locus in quo and established that the construction and location of the two disputed structures in a location next to the roadside was in error as this land did not form part of the kibanja. The trial magistrate further based his findings on the fact that Taliwan5ruma's son Asiimwe purchased a plot from Mubiito right next to the structures on the disputed land before the structures were built. He was able to establish that that Taliwanyuma had no authority to give his sons land in the now disputed area because it did not belong to him.

I

O10

O

It is therefore my finding that the first l"t appellate judge erred 15 when he found and held that the respondents were bona.fide occupants on the disputed land when they took possession of land beyond the kibanJa their father, Placid Taliwan5ruma, was entitled to.

- 20 Having found as such, I make reference to Justine E. M. N Lutaaya v Stirling Engineering SCCA No. 11 of 2OO2 where it was held that; "Trespass to land occurs when a person makes unauthorized entry upon land thereby interfering with another person's lawful possession of the land." - zs In this case I have found above that the respondents were not bona .fide occupants on the disputed land, having recently

encroached on the same and therefore their entry onto the land was unlawful. They were therefore trespassers. On the basis of the above evaluation, I find that grounds No. $1,2,3$ and 4 of the appeal succeed.

- Regarding ground No. 5 on the issue of awarding general $\mathsf{S}$ damages, the trial Magistrate chose to award the appellant Uganda Shillings Ten Million $UGX10,000,000/$ = as general damages. Counsel for the respondent maintained that there appellant evidence from the regarding the was $\mathbf{n}$ inconvenience suffered and that the trial Judge was right in $10$ interfering with the award of general damages to the appellant. - It is trite that general damages are awarded at the court's discretion. Since the learned trial magistrate found that the **bona** *fide* occupants and respondents were $\mathop{\mathrm{not}}\nolimits$ are trespassers it was not out of order to award general damages. $15$ - It is my humble view that the learned trial magistrate when he awarded general damages to the appellant. Ground No. 5 equally succeeds.

In the final result, this appeal is wholly successful. The orders of the Magistrate's Court are hereby affirmed. The appellant is $20$ entitled to costs in this court and in the courts below.

# Dated at Kampala this........day of January 2023

$25$

Hon. Lady Justice Catherine Bamugemereire **Justice of Appeal**

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 269 OF 2019

**ASTON MANYINDO** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ APPELLANT

#### **VERSUS**

### 1. ALITUHA EDWARD

**2. MUGABO BEATRICE RESPONDENTS** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$

# CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

# JUDGMENT OF HON. JUSTICE RICHARD BUTEERA, DCJ

I have had the advantage of reading in draft the Judgment prepared by Bamugemereire, JA.

I agree with the Judgment of Bamugemereire, JA and orders proposed.

As Musota, JA also agrees with the Judgment of Bamugemereire JA, there will be orders in the terms proposed by the learned Bamugemereire, JA

$\mathcal{P}^{\mathcal{O}}$ Dated at Kampala this ..... $\ldots$ day of January, 2023.

Richard Buteera DEPUTY CHIEF JUSTICE

$\mathcal{L} = \mathcal{L} \oplus \mathcal{L}$ $\mathcal{A} = \mathcal{A} \cup \mathcal{A} \cup \mathcal{A}$

# THE REPUBLIC OF UGANDA

## IN THT COURT OF APPEAL OF UGANDA AT KAMPALA

## CTVIL APPEAL NO. 269 OF 2019

(Arising from tlw decision of Justie Masalu Musene, J in High Court Ciuil Suit No. 28 of 2017)

ASTON MAtrIYINDO : : : : : : 3 : 3 3 : : : : : 3 3 : : 3 3 : : : : : : 3 : : : : 3 : : 3 : APPELLANT

## VERSUS

## 1. ALITUHA EDWARI)

o

2. MUGABO BEATRICT : : : : : : : : : : : 3 3 : : : : : : : : : : : : 3 : RESPONDENTS

## CORAM: HON. JUSTICT RICHARD BUTEERA, DCJ

HON. JTISTICE CATHERTNE BAMUGEMEREIRE, JA

HON. Jt STICE STEPHEN MUSOTA, JA

# WDGMENT Or HON. JUSTICE STEPHEN MUSOTA, JA

I have had the benelit of reading in draft the judgment by my sister Hon. Justice Catherine Bamugemereire, JA.

I agree with her analysis, conclusions and the orders she has proposed.

,l

O Dated this 1d' dav of ²⁰²³

Stephen Musota JUSTICE OF APPEAL

$\mathbf{v}^{\mu} = \mathbf{v}^{\mu}$ $\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}} \otimes \mathcal{L}_{\mathcal{A}} \otimes \mathcal{L}_{\mathcal{A}}$