[2025] UGCA 236

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 275 OF 2O2O

(Arising from Mukono High Court Civil Appeal No.110 of 2018) (Also arising from Lugazi Magistrate's Land Case No. 83 of 2010)

IC ORAM : LU SWATA, BYARUHANG A. RU GYEMA, ALIBATEESE, JJA]

BAGALANA MOSES APPELLANT

#### VERSUS

BESI MUSUBIKA RESPONDENT

lAppeal from the Judgment of Batema, J. sitting at Mukono High Court in Civil Appeal No.110 of 2018 delivered on 1/10/20201

# JUDGMENT OF BYARUHANGA JESSE RUGYEMA, JA.

### Introduction:

- t11 This is a 2'd appeal from the decision of the High Court which in the exercise of its appellate jurisdiction allowed the Respondent's appeal and set aside the decision of the learned trial magistrate and substituted it with orders, inter alia, that: - (a)The suit kibanja belonged to the Respondent and the Appellant was a trespasser thereon. - (b) An award of Ugx. 18,000,000/= as general damages. - (c)Costs of the suit in favour of the Respondent.

## Background:

- l2l The Respondent/plaintiff brought a suit against a one Buliteka Madina/l" Defendant and the Appellant/2"d Defendant claiming ownership of a kibanja in Ntinda Zone, Njeru Town Council, Buikwe District, trespass, forcible detainer and damage to property. - t3] It was the Respondent/Plaintiff's case that the Respondent is the administrator of the estate of the late Kulyenvu Kaawa, the original owner of the suit kibanja and that on8/I/2001, the Appellant and Buliteka Madina unlawfully entered the suit kibanja and cut down her banana plantation and damaged other properties including a house. That in the year 2003, the Appellant further trespassed on the Iand by making bricks thereon. - ¹⁴¹The other Defendant, Buliteka Madina was prosecuted in the Magistrate's Court of Njeru for malicious damage to property belonging to the Respondent on the suit kibanja, convicted and sentenced to a fine of shs. 40,000/-. It is reported that Buliteka Madina died upon release from prison. She did not prefer any appeal against the decision of the trial magistrate. - t51 In their joint defence, the Appellant [2"d Defendant] and Buliteka Madina [1" Defendant] denied the Respondent's allegations of trespass and claimed that they at all material times lawfully occupied the suit kibanja that belonged to their late grandmother, a one Khadija Kyokolera.

- t6l Upon evaluation of the evidence that was adduced before him, the trial magistrate found that it was not in dispute that the suit kibanja originally belonged to a one Kaawa Kulyenvu (grandmother of the Respondent), who reportedly died in 1973. He however further found that whereas the Respondent claimed that she was bequeathed the suit kibanja by her grandmother, Kaawa Kulyenvu; the Appellant on the other hand, claimed that his grandmother, Khadija Kyokolera, bought the suit kibanja from the Respondent's grandmother, Kaawa Kulyenvu in 1972. - l7l The trial magistrate concluded and held that the Respondent's grandmother, Kaawa Kulyenvu brought the Appellant's grandmother, Khadija Kyokolera onto the suit kibanja and was buried thereon. That in the premises, the Appellant who stayed on the suit land with Khadija Kyokolera, cannot be a trespasser on the suit land. The trial magistrate disregarded the Respondent's claim that she was bequeathed the suit kibanja by her grandmother, Kaawa Kulyenvu and dismissed her case with costs to the Defendants i.e. the Appellant and Buliteka Madina. - t8l The Respondent was dissatisfied with the judgment and orders of the trial magistrate and appealed to the High Court on the following grounds (which the Appellate judge rightly found as argumentative): - 1. That the learned trial magistrate erred in law and fact when he failed to properly evaluate the Appellant [present Respondentl and her witnesses' evidence against the Defendants' [present Appellant and Anotherl and their witnesses' evidence and

came to a wrong conclusion which gave the Respondents [Present Appellant & Anor] rights over the kibanja which they did not have.

- 2. That the learned trial magistrate erred in law and fact when he failed to pronounce himself over the rights over the disputed land of the Appellant [present Respondent] as against the rights over that land of the Defendants [present Appellant and anorl. - t91 Upon addressing himself on the duty of the l" Appellate court, to re-evaluate the evidence on record and come to its own decision, the appellate judge found and held that the trial magistrate erred in law and fact when he failed to evaluate the evidence on record and declared the Appellant [and his sister Buliteka Madina] as lawful owners of the suit land. That the trial Magistrate denied the Respondent, her right to own property because there was no evidence on record that the present Appellant's grandmother, Khadija Kyokolera purchased the suit kibanja from the Respondent's grandmother, Kaawa Kulyenvu as they [Appellant and Buliteka Madinal claimed. The trial Magistrate's judgment and orders were accordingly set aside by the appellate judge and substituted with a declaration that the suit kibanja belongs to the Respondent and the Appellant was declared a trespasser thereon, - [10] The Appellant being dissatisfied with the judgment and order of the Appellate judge Iodged the instant appeal on the following grounds;

- 1. The learned judge erred in law and fact when he failed as the 1" Appellate court to property evaluate evidence on record, thereby coming to a wrong decision that the Appellant is ^a trespasser on the suit land. - 2. The learned judge erred in law and fact when he placed so much reliance on the evidence of the Respondent and gave no reason for ignoring that of the Appellant. - 3. The learned judge erred in law and fact having found that Khadija Kyokolera lvas a lawful occupant on the suit land, turned to disregard the Appellant's equitable interest on the land. - 4. The learned judge erred in law and fact when he found that the matter was not barred by the law of limitation.

Counsel legal representation:

[11] On the 2'd appeal, the Appellant was represented by Mr. Mungoma Steven of M/s Mungoma, Mabonga, Wakhakha & Co. Advocates, Mukono while the Respondent was represented by Mr. Kafuko - Ntuyo of M/s Kafuko - Ntuyo & Co. Advocates, Mukono. Both Counsel filed their respective conferencing notes which they asked this court to adopt as their final submissions and this court obliged so for consideration of this appeal.

Duty of the 2"d Appellate Court:

[12] This is a second appeal, the 2"d Appellate Court's role is laid down under Rule 32 (2) of the Judicature (Court of Appeal Rules) Directions which provide thus:

> "On any second appeal from a decision of the High Court acting in exercise of its appellate iurisdiction, the court shall have power to appraise the inferences of fact drawn by the trial court....."

This court is therefore obliged to appraise the inferences of fact drawn by the trial court on matters of law. S. 72 CPA, provides that;

## "72. Second appeal.

- (1) Except where otherwise expressly provided in this act or by any other law for the time being in force, an appeal shall lie to the court of appeal from every decree passed in appeal by the high court, on any of the following grounds, namely that- - (a) the decision is contrary to law or some usage having the force of law; - (b) the decision has failed to determine some material issue of Iaw or usage having the force of law; - (c) a substantial error or defect in the procedure provided by this act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon merits".

This court is therefore duty bound to appraise inferences of fact drawn by the 1" Appellate Court i.e. to determine whether or not, as a matter of law, the High Court sitting as the 1" appellate court dealt with the appeal as by law required i.e. reevaluated the evidence and made its independent findings in regard to the grounds raised before it.

[13]The role of a second appellate court was also discussed in Kifamunte Henry vs Uganda, S. C. Crim. Appeal No. 10 of 2OO7 at P.12, Court held that:

> "... On second appeal the Court of Appeal is precluded from questioning the findings of fact of the trial court provided that there was evidence to support those findings, though it may think it possible, or even probably, that it would not have come to the same conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact; this being a question of law; R. V. Hassan (1942) I E. A. C. A 62".

[14] In the case of Nsubuga vs Kanaabi & ors C. A. C. A No. 51 of 2OLZ [20151 UGCA 111.

> "Being a second appeal, this court is not required to re-evaluate the evidence adduced at the trial. That is the duty of the first appellate court. However, if it is found that the first appellate court failed in its duty to re-evaluate the evidence, then the second appellate court may proceed to do so".

In the case of Kulabiraawo vs Nalubega, C. A. C. A No. 55 of 2002, it was held that:

> "In order for the second appellate court to interfere in concurrent findings of fact by the trial court and the first appellate court, it has to be shown that the first appellate court erred in law or in mixed fact and law to iustify an intervention".

[15] This court shall be guided by the above principles regarding the role of this court as a 2'd appellate court as it resolves each of the grounds of appeal in this case.

## Consideration of the Appeal:

- [16]The grounds 1, 2 & 3 relate to how the learned appellate judge evaluated the evidence before him to arrive at the conclusion that the Respondent was the lawful owner of the suit land and the Appellant is a trespasser. As a result, the 3 grounds of appeal are to be resolved together. - Ground 1: The learned trial judge erred in law and fact when he failed as the first appellate court to properly evaluate evidence on record thereby coming to wrong decision that the Appellant is a trespasser on the suit land. - 2= The learned trial judge erred in law and fact when he placed so much reliance on the evidence of the Respondent and gave no reason for ignoring that of the Appellant.

- The learned trial judge erred in law and fact, having found that Khadija Kyokolera-was a lawful occupant on the suit land, turned to disregard the Appellant's equitable interest on the land. 3 - [17] Counsel for the Appellant submitted that the Appellant's grandmother occupied the suit kibanja since the 1970s and the Appellant was born on the kibanja where he constructed a house. Counsel however concluded that the trial Judge was in the wrong when he found the Appellant a trespasser without having regard to the period of time the grandmother and the Appellant spent on the land without any contention from the Respondent. - [18] Counsel for the Respondent on the other hand submitted that although the Appellant had possession of the suit kibanja, he failed to prove legal or equitable acquisition of it. That the Appellant testified that the suit land was gifted or sold to his grandmother but never adduced any evidence of any gift deed or sale agreement in court. Counsel concluded that the Appellant having failed to adduce any evidence of ownership of the suit land, his continued forceful stay on the land constituted trespass. - [19] This court has deduced from the record that both the trial Magistrate and the appellate court were convinced and satisfied that the suit

kibanja originally belonged to the Respondent's/Plaintiff's grandmother, a one Kaawa Kulyenvu who was at all material times in possession before her death in 1972. It was also not in dispute that the Appellant's grandmother, Khadija Kyokolera lived on the suit kibanja until her death on 16/2/1999 and was buried thereon the kibanja.

- t20]The issue for determination before the trial magistrate was as follows: Whether the defendants [present Appellant & Anor] are trespassers on the suit kibanja. - [21]The record clearly indicates that it was the Respondent/Plaintiff's case that her grandmother, Kaawa Kulyenvu gifted and or bequeathed to her the suit land as per the WILL (P' Exh'1)' On the other hand, it was the Appellant/Defendant's case that his grandmother, Khadija Kyokolera bought the suit land from the Respondent/Plaintiff's grandmother, Kaawa Kulyenvu. - [22] From the above, it is clear that the Respondent/Plaintiff had to establish ownership of the suit kibanja by evidence that it was bequeathed to her by her grandmother, Kaawa Kulyenvu. The Appellant/Defendant had to also establish ownership of the suit land by evidence of purchase of the suit kibanja by his grandmother, Khadija Kyokolera from the Respondent's

grandmother, Kaawa Kulyenvu, the undisputed original owner of the kibanja.

Appellant's alleged purchase of the suit kibanja by his grandmother.

[23] At Para. 31 of the Appellant's record of appeal, the trial Magistrate found and held thus:

> ".../t is credible the plaintiff fpresent Respondent] was willed ownership of the suit kibanja by her grandmother Kaawa. The same Kaawa brought the defendant's [present Appellant] grandmother on the suit kibanja and died leaving her on the suit kibanja. I am not in a position to believe the defendants' [present Appellant & Anor] allegation that his grandmother bought the suit kibania. But be that as it may, the defendant's [present Appellant] grandmother and indeed the defendant [Appellant] got onto the kibanja lawfully and cannot be adjudged a trespasser".

[24] What the trial Magistrate was saying, in other words, is that though the Respondent was bequeathed the suit kibanja by her grandmother, Kaawa Kulyenvu, she is the same person who brought the Appellant's grandmother, Khadija Kyokolera, on the kibanja where she stayed with the Appellant and therefore, the Appellant cannot be adjudged a trespasser on the kibanja.

[25]The Appellate Judge on the other hand, at Pgs. 6 & 7 of the Appellant's record of appeal, on this issue found and held as follows:

> "In deciding that the Respondents [present Appellant & Anor] are not trespassers, the learned trial Magistrate tried to trace ownership of the kibanja. He found that both the grandmother of the Appellant [Present Respondent] and of the Respondent fpresent Appellant] Iived on the same kibanja for a very long period. That the kibanja originally belonged to Kulyenvu Kaawa who willed it to the Appellant [present Respondentl. But the same Kulyenvu Kaawa allowed Khadija to live on it..."

> The Respondents [present Appellant & Anor] derived their title from Khadija since they allege that she bought the land from Kaawa they had to prove the purchase as a basis of ownership. The Magistrate ruled that he did not believe the claims of that purchase. Having ruled so, the same Magistrate could not rule that they were not trespassers.

> The evidence on record shows that Khadija was invited to stay on the kibanja by Kaawa Kulyenvu. I did not find any evidence of purchasing the kibanja".

[26] I agree with the above findings of the Appellate Judge. The findings are supported by the evidence on record. The Appellant/Defendant's claim that he derived his interest from his grandmother, Khadija Kyokolera, who allegedly bought the suit

land from the Respondent's grandmother; Kaawa Kulyenvu is not supported by any evidence. The Appellant testified as DW2 thus:

> "The dispute kibanja belonged to Kaawa. I did not meet her but she died in 1973. Kaawa gave my grandmother Khadiia the kibanja in 1972. I knew about the sale because there is an agreement to the effect". The original was given to someone but lost it. It was given to Muswain Akidra but he lost it".

It is the same evidence as adduced by Anna Maria Kibirango who testified as DW1 thus:

"The owner of the said kibania was Khadija. Kaawa had sold it to her... The agreement was written by Nabungo, the father of the Plaintiff [present Respondent] .... The L. C secretary was also present. He is still alive.

At the time of the sell (sic), Kaawa was the owner and was in possession. Khadija bought the kibanja when the deceased Kaawa realised she was growing old".

[27] As seen from the above, the Appellant's case was that his grandmother, Khadija Kyokolera purchased the kibanja from the Respondent's grandmother, Kaawa Kulyenvu. The Appellant therefore had to establish his grandmother's ownership of this kibanja by production of the sale agreement. If the original agreement was lost as he claimed, he ought to have applied to tender in court the photocopy he claimed to possess as secondary evidence under Ss. 6O & 64 of the Evidence Act, through the relevant witnesses. The relevant witnesses would include Nabungo who is alleged to had written the agreement, Muswain Akidra who is alleged to have had custody of it and lost it and, the then L. C. I Secretary who allegedly witnessed it by endorsement.

## [28] 5.60 of the Evidence Act provides thus:

## "60. Proof of contents of documents.

The content of documents may be proved either by primary or by secondary evidence".

5.62 of the Evidence Act provides thus:

## "62 : Secondary evidence.

Secondary evidence means and includes-

(a) ----

(b) Copies made from the original by mechanical processes which in themselves ensure accuracy of the copy...".

## 5.63. proof of documents by primary evidence.

"Documents must be proved by primary evidence except in the cases hereafter mentioned" (under S.64).

An example of the exception under 5.64 is when the original has been destroyed or lost, or is in the possession or power of any person not legally bound to produce it, and who refuses to or does not produce it after a reasonable notice or when the party offering evidence of its contents cannot, for any other reason not arising from his or her own default or neglect, produce it in a reasonable time, [S.64 (c)].

- [29] The Appellant instead of invoking the above provisions of the evidence Act regarding proof of secondary documentary evidence, he adduced evidence through Pastor Mukasa Nsubuga (DW3) who produced a suspicious document authored and solely signed by him (DW3) in the year 2000 which was to the effect that the "Busoga people gave the defendant's fPresent Appellant] father authority over the suit kibanja" [D. Exh.3] following its purchase by the Appellant's grandmother in 1972. - [30] I find that the "Busoga people" could not definitely confer the Appellant any rights over the suit kibanja that had, as concurrently found by the Appellate Judge and the trial Magistrate, clearly been bequeathed to the present Respondent by her grandmother, Kaawa Kulyenvu (P. Exh.l). - [31] During further cross-examination, at page 68 of the Appellant's record of appeal, the Appellant stated thus:

"The agreement was found but the father of the Plaintiff [Respondent] denied it at the last funeral rites".

If the agreement was found at the last funeral rites of the Appellant's grandmother, Khadija, there is no explanation from the Appellant as at what stage this agreement mysteriously disappeared. According to the Appellant, the original copies of the purchase agreement had been retained by the Respondent's grandmother, Kaawa and the Appellant's grandmother, Khadija and a copy was kept by Muswain Akidra which he lost. There is no explanation as to what happened to the original copy left with Khadija if at all, the sale took place.

Appellant's lawful occupation of the suit kibanja.

- [32] Counsel for the Appellant submitted and argued that the Appellant is a lawful occupant of the suit kibanja under S.29(1) (b) of the Land Act and his grandmother, Khadija, a bonafide occupant within the meaning of S.29 (2)(a) of the Land Act. - [33] I find this argument flawed. Counsel deviated from his client's case which is that his grandmother purchased the suit kibanja. Nevertheless, S.29 (1)(b) of the Land Act provides thus: - "(1) "Lawful occupant" means- - (b) A person who entered the land with the consent of the registered owner, and included a purchaser;"

While S.29 (2Xa) of the Act provides that:

- "(2) "Bonafide occupant" means a person who before the coming into force of the constitution- - (a) had occupied and utiltsed or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more;" - [34] In the first instance, the above, "lawful" or "bonafide" occupation of the Appellant on the suit land was not the Appellant's case. The Appellant's case was that at all material times, he has been in occupancy of his late grandmother's kibanja she acquired from the late Kaawa (through purchase). It is settled law that parties are bound by their pleadings. In Interfreight Forwarders (U) Ltd vs East African Development Bank S. C. C. A. No. 33 of 1993, it was held:

"A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings."

- [35] In the instant case, the Respondent explained in his evidence that the Appellant's grandmother, Khadija was brought onto the suit land by the Respondent's father, Nabungo Ebiasafu to assist in taking care of the Respondent's grandmother, Kaawa Kulyenvu which she did up to when she died in 1999. The Appellant on the other hand claim that the said Kaawa Kulyenvu sold the suit land to the Appellant's grandmother Khadija. As concurrently found by the Appellate Judge and the trial Magistrate, no such sale of the suit land to the Appellant's grandmother, Khadija ever took place. The Respondent's reasons explaining the presence of the Appellant's grandmother on the suit land remained unchallenged. - [36] Secondly, clearly neither the Appellant nor his grandmother fell under the provisions of S.29 of the Land Act as either lawful or bonafide occupants of the suit kibanja.

## Appellant's Tenancy Registration Card.

- [37] In his evidence, the Appellant stated that the kibanja is on Kabaka's Iand as the landlord and presented to court a Tenancy Registration card which was admitted in evidence as D. Exh.2 dated 3/12/2009. I find the card without any evidential value. There is no evidence that the card does refer to the kibanja in question as being the land on which the Appellant is a tenant. The Appellant must have secured this Card as part of his design, for purposes of grabbing the Respondent's land upon the death of their respective grandmothers who had lived together on the land without any conflict. The burial of the Appellant's grandmother, Khadija on the suit land had to be upon request which had to involve the L. C.l Chairperson of the area. This is further proof against the Appellant's further claims of ownership of the suit kibanja. - [38] In conclusion, I find that the Appellant got onto the suit land on account of his grandmother, Khadija Kyokolera, who was brought by the Respondent's father and was allowed to live with the Respondent's grandmother Kaawa Kulyenvu on the suit kibanja as her caretaker. The Respondent's grandmother, Kaawa Kulyenvu bequeathed the suit kibanja to the Respondent and upon her grandmother's death, she acquired Letters of Administration to administer her estate. The WILL (P. Exh.l) bequeathing the kibanja

to the Respondent was in respect of the estate of the late Kaawa Kulyenvu.

- [39] It is evident on record that the entry on the suit kibanja by the Appellant's grandmother Khadija was lawful as it was with the consent of the Respondent's grandmother, Kaawa Kulyenvu and her son, Nabungo for purposes of Khadija taking care of Kaawa Kulyenvu. The Appellant's staying on the land with his grandmother Khadija was therefore also equally lawful. However, upon the death of the Appellant's grandmother, Khadija, the consent to stay on the land in favour of the Appellant that was implied in Khadija's stay on the land expired since the Appellant had been on the land on account of Khadija's stay thereon. It follows therefore that upon the death of the Appellant's grandmother, the Appellant's licence on the suit land expired and by his undesired conduct, he definitely became persona non grata. - [40] The Appellant's forceful continued stay on the land, though the initial entry was lawful, suffices for a finding of trespass. Trespass to land occurs when a person directly enters upon another's land without permission and remains upon the land, places or projects any object upon the land, Salmond & Heuson on the law of Torts, 19'h edition (London: Sweet & Maxwell (1987)46. It consists of not only in making an unauthorised entry upon private property of another but also in lawful entry but exceeding the scope of the authority granted or remaining on the property after that authority

has been revoked because the original lawful entry would no Ionger be justified once the grounds for it are gone or have expired; see Robson vs Hallet U96712 QB 939, Hillen vs ICI (Alkali) Ltd [1936] A. C 65, Wood vs Leadsbitter (1845) 13 M & W 838 and Okee Benjamin & 2 ors vs Otim Eronayo H. C. C. A. No. 41 of 2015.

[41]As a result of the above, I find that the Appellate Judge properly evaluated the evidence on record and rightly came out with ^a decision that the Appellant is a trespasser on the suit kibanja. Neither the Appellant nor his grandmother, Khadija Kyokolera was a lawful or bonafide occupant on the suit land thus neither had any equitable interest on the land. The 3 grounds of appeal are found devoid of any merit and they accordingly fail.

## Ground 4: The learned Judge erred in law and fact when he found that the matter was not barred by law of limitation:

[42] Counsel for the Appellant submitted that the Appellant grew up from the suit land and his grandmother, Kyokolera entered and stayed on the suit kibanja way back in the 1970s and died on the land in 1999. He argued that the cause of action accrued to the Respondent in 1973 upon the death of Kaawa Kulyenvu, the original owner of the land and therefore, that the suit was clearly out of time and the Appellate court erred when it ruled that the cause of action accrued in 2003. He relied on Ss.5 & 6 (2) of the Limitation Act and Mugyenzi Justus & 2 ors vs Kateeba & 3 ors C. A. C. A. 162 of ZOZL for the proposition that "No action to assert

title or interest in land can be sustained outside the limitation period. A suit barred by limitation is a suit barred by law."

- [43]The issue of limitation was never raised and therefore traversed in the trial court. The same issue did also not form any of the grounds of appeal to the High Court. Counsel for the Appellant however raised the issue of limitation as a point of law, for the appellate court to consider and determine the legality of the Respondent's entire suit. - [44] The Appellate Judge considered the issue in the negative, that Ss.5 & 6 of the Limitation Act are not applicable to the facts of this case because the Appellant [Present Respondent] brought her suit against the Respondents [Present Appellant and Anor.] 7 (seven) years after the cause of action and therefore she was in time.

S.5 of the Limitation Act provides thus;

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person." Then, S. 6 (2) of the Act provides that:

"Where any person brings an action to recover any land of the deceased person, whether under a Wiil or on an intestacy, and the deceased person was on the date of his or her death, in possession of the land...and was the last person entitled to the Iand to be in possession of it, the right of action shall be deemed to have accrued on the date of his or her death."

In the case of F. X. Miramago vs A. G. [1979] HCB 24, it was held that;

"The period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed. Once a cause of action accrued, for as long as there is capacity to sue, time begins to run against the plaintiff."

See also Eridad Otabong Waimo vs A. G. S. C. C. A. No. 1 of 1990 [199r] ULS rsO.

[45] The "right of action" accrues when the cause of action arises. In this case, I think Counsel for the Appellant confused what a "right of action" and "cause of action" is. Though a" right of action" and ^a "cause of action" are related, they should not be used interchangeably. They are distinct legal concepts. A "right of action" is the legal ability to bring a case to court i.e. pursue a claim. It is the underlying legal principle that entitles someone to seek redress in court when his/her rights have been violated or infringed. A "cause of action" on the other hand simply refers to the facts, if proven, entitle a plaintiff to a court judgment. In Annebrit Aslund vs A. G [2OOf -2005] HCB 103, a cause of action was defined as a fact or the combination of facts that give rise to a right of action. A cause of action must exist for a right of action to be valid.

- [46] The above means that one cannot exercise his/her right of action before a cause of action arises. In other words, the right to sue begins when the facts that support the legal claim occur i.e., when the Plaintiff's rights are violated or infringed. - l47lln the instant case, it follows that the Respondent's right of action which accrued by virtue of the WILL wherein she was bequeathed the suit kibanja upon the death of the testator, could only be exercised when the cause of action arose i.e. when her rights were violated or infringed allegedly by the Appellant/Defendant and not before the violation of her rights as Counsel for the Appellant want this court to find. The Respondent would exercise her right of action which accrued on the death of the testator only upon her rights being violated or infringed. - [48] It is the law that when court is considering whether a suit is barred by any law, it looks only at the plaint and anything attached to the plaint forming part of it, Madhvani International S. A vs A. G. c. A.c. A. No.48 of 2OO4. This is consistent with O.7 r.11(d) CPR which provides for rejection of a plaint in the following case -

"11(d) Where the suit appears from the statement in the plaint to be barred by any law".

[49] In the case at hand, the Respondent pleaded under para. 5 of the plaint thus:

"...the defendants [Appellant & Anor] on or about the 8/1/2001 unlawfully entered upon the kibanja and cut down other property including a house."

Then, under para.7 of the plaint, she added thus:

"... In the month of January 2OO3, the defendant [Appellant] resumed making bricks on the said kibanja despite protests from the plaintiff [Respondent], have randomly cultivated the same and have lent portions of the same to strangers."

t50l The learned Appellate Judge found and ruled that the cause of action arose around 2003 and the Respondent brought her suit against the Appellant 7 years after the cause of action arose. I find that the Respondent exercised her right of action in 2003 when the cause of action arose i.e. when her rights over the suit kibanja were allegedly violated by the Appellant/Defendant. She could not exercise her right of action upon the death of her grandmother, Kaawa Kulyenvu in 1973 without a cause of action or before it arose. The cause of action arose in 2003 when the Appellant violated her rights over the suit kibanja and she filed the suit in August 2010.

[51] In this case, the Respondent having filed the present suit on 6/8/2010, i.e. 7 years from 2003 when the cause of action accrued, Iimitation time started running from then. In the premises, this court has no reasons to fault the learned Appellate Judge. The Respondent's suit was not filed out of time. - [52] As a result of the above, ground 4 is also found devoid of any merit and it accordingly fails. Since all the grounds of appeal have been found unsuccessful, the appeal is found to be without merit and as a result, it is dismissed with costs. The judgment and orders of the High Court are accordingly upheld and confirmed. - [53]With the determination of this appeal, the Appellant's court of Appeal Misc. Application No. 250 of 2021 arising from this appeal for stay of execution pending before this court stand disposed of by way of dismissal on account of being overtaken by the event.

# Competence of the appeal

- [54] Before I take leave of this appeal, it is deserving that I make ^a comment as regards the Notice of Appeal which commenced this appeal. Upon perusal of the notice of appeal, I found its competence questionable as regards its lodgement to this court. The Notice of Appeal lodged in court in respect of this appeal bear neither a seal of the court nor the endorsement of the Registrar of this court and therefore appear offending Rule 76 (5) of the Judicature (Court of Appeal Rules) Directions SI 13-10. This brings the competency of this appeal in question. - [55] Rule 76 (l) of the Court of Appeal Rules provides thus: "76. Notice of appeal in civil appeals.

(1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court.

(2)

(5) A notice of appeal shall be substantially in Form D in the first schedule to these rules and shall be signed by or on behalf of the appellant."

Form D in the first schedule of the Court of Appeal Rules requires that the Notice of Appeal be signed by or on behalf of the Appellant and bear an endorsement of the Registrar of the High Court as proof that the Notice of appeal has been lodged in the relevant court.

# [56] Rule l1 of the Rules provides that:

# "l l. Endorsement of documents lodged.

Whenever any document is lodged in the registry or in a subregistry of the High Court under or in accordance with rule 10 of these Rules, the registrar or deputy registrar or registrar of the High court, as the case may be, shall immediately cause it to be endorsed showing the date and time when it was lodged."

[57]The Notice of appeal in the Appellant's record does not have ^a provision for and an endorsement of the Registrar and lacks the seal of the Court as proof of its lodgement in the relevant court.

- [58] Under 5.56 of the Evidence Act, pleadings are not one of the documents that the courts are required to take judicial notice of. It is under S.56 (1) (e) of the Act that courts take judicial notice of all seals of the Court of Uganda duly established. It follows therefore that without a court seal, such a document is not legally recognised and cannot be used in court or pass as a court document. This is the principle in Kaur City vs Auction Mart Ltd [1967] E. A. 108, Nakitto Brothers Ltd vs Katumba 119831 HCB 70 at p.12 and Kinyara Sugar Ltd vs Kyomuhendo Pamela H. C. M. A. No. 61 of 2020. - [59] The court seal on official documents serves to authenticate and give legal weight to court processes. It signifies the court's authority and ensure that documents are not fraudulent or fraudulently issued. The seal verifies that a document originated from court and is genuine. The court seal is the basis for courts to take judicial notice of a court document and its content. - [60] The effect of a Notice of Appeal offending rule 76 (5) of the rules is that it has to be struck off for being a nullity thus render the appeal incompetent. In Gaba Beach Hotel Ltd vs Cairo International Bank Ltd [20031 KALR 104, rhe Respondent purported to have filed ^a Notice of Appeal in the High Court registry which appeared with ^a High Court Received stamp but without a date and endorsement by the Registrar of the High Court. This court held:

"Rule 10 C. A. R [Now Rule 11] provides that

Whenever any document is lodged in the Registry or in Registry of High Court for transmission to the Court of appeal, such document shall be dated and it shall be endorsed by the registrar of the high court. A Notice of appeal provided under rule 75 C. A. R [Now 76] is such a document that must be lodged in the High Court Registry, dated then endorsed by the Registrar. The intending appellant's Notice of appeal was incompetent for failure to have it dated and endorsed as required by law."

This Court went further to justify the striking out of the appeal for improper or non-lodgement of the notice of appeal thus:

"It is now necessary to determine first whether a notice of appeal was lodged in the High Court in respect of Civil Appeal No.83 of 2002 as required by the rules of this court... It bears ^a stamp....of High Court Commercial Court - Division... However, the date of lodging is not stated where it is required to be stated and it is not signed by the Deputy Registrar of the High Court as required by law. Rule 10 [Now 11] of the rules of this court require it to be endorsed by the Registrar or Deputy Registrar as the case may be and should indicate the date and time when it was filed. We do not accept Mr. Mubiru's argument that since there is evidence of a stamp that the document was presented to court the signature of the Registrar does not matter since that is internal administration of the courts. With Respect, if that was acceptable, it would enable any rubber stamps from the streets to be used without verification from court officials... A purported

notice of appeal without such an endorsement is a nullity and cannot initiate a valid appeal."

Court did not regard the rules relating to the institution of appeals in this court to be mere technicalities that parties can dispense with under Art. 126(12) (2) of the Constitution. Failure to comply with the rules rendered the appeal incompetent.

[61]The Supreme Court sealed this issue in Herbert Semakula Musoka & Anor vs Lawrence Nabamba & 2 ors S. C. Civil App. NO. 22 of 2019 which binds this Court when it held that;

> "The Respondent's Notice of Appeal offended RuIe 72 (s) of the Rules of this court as it was not in conformity with the First schedule to the Rules. Form D in that schedule requires the hearing to be as in proceedings appealed from..."

# RuIe 72(5) of the Rules states:

"(S) A notice of appeal shall be substantially in Form D in the First schedule to these rules and shall be signed by and on behalf of the appellant" ...

Clearly the above rule is couched in mandatory terms and failure to comply with it impairs the competence of the Notice of Appeal... Suffice to say there was no valid Notice of Appeal to serve...

Rule 72(5) of the Rules of the Supreme Court is the equivalent of Rule 76(5) of the Rules of this court.


- [62] In the premises, that the Appellant's purported Notice of Appeal in this case lack a court seal and an endorsement of the Registrar or ^a person authorised by him on that behalf, it would be found a nullity which could not initiate a valid appeal. The appeal would be struck out on this sole ground. - [63] The end result of this appeal is that it is dismissed with costs to the Respondent.

Dated at Kampala this day of 2025.

Byaruhanga Jesse Rugyema JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 275 OF 2020

[CORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESE, JJA]

$\mathsf{S}$

BAGALANA MOSES:::::::::::::::::::::::::::::::::::

#### **VERSUS**

BESI MUSUBIKA:::::::::::::::::::::::::::::::::::: $10$ (*Appeal from the Judgment of Justice Batema, J. sitting at Mukono High* Court in Civil Appeal No.110 of 2018, arising from Lugazi Magistrate's Land Case No. 83 of 2010 delivered on 1/10/2020)

#### JUDGEMENT OF STELLA ALIBATEESE, JA

I have had the benefit of reading the draft judgement of my learned brother, Hon. Justice Jesse Byaruhanga Rugyema, JA. I am in agreement with his reasoning and the orders proposed.

Dated and delivered at Kampala this $\sqrt[8]{\text{day of}}$ $\mathcal{J} \cup \mathcal{J}$ 2025 20

Plibateese

**JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

ICORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESD, JJA]

## CIVIL APPEAL NO. 275 OF 2O2O

(Aising from Mukono High Court Ciuil Appeal No.110 of 2018)

(Also arising from Luqa.zi Magistrate's Land Case t/o. 83 of 20 10)

# BAGALANA MOSES:::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS

BESI MUSUBIKA: : : : :: : : : : : :: : : : : :: : : : : : : : : : : :: : : :: : : : : : : 3 : : :: : : : : : : RESPONDENT

[Appeal from the Judgment of Batema, J sitting at Mukono High Court in Ciuil Appeal No.11 0 of 2018 deliuered on 1/ 1O/20201

# JUDGMENT OF HON. LADY JUSTICE EVA K. LUSWATA JA

I have had the benelit of reading in draft the Judgment of my learned brother Hon. Justice Byaruhanga Jesse Rugrema. I agree with it and I have nothing more useful to add.

Since Hon. Lady Justice Stella Alibateese also agrees with the judgement of Justice Byaruhanga Jesse Rugzema, we agree that the appeal is dismissed with costs to the Respondent.

t-/ Dated at Kampala this ..... / { day of 2025.

JUSTICE OF APPEAL ) LUSWATA