[2024] UGHC 917

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVIL APPEAL NO. 11 OF 2022 [Appeal from the judgment and orders of H/W Wagana A. M. I. the Magistrate Grade I, Kibaale Chief Magistrate's Court in Land Civil Suit No. 017 of 20131

BAGUMA ANDREW::::::::::::::::::::::::::::::::::::

#### **VERSUS**

MIKAIL KYESEREKA:::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **JUDGMENT**

#### **Background**

- [1] The Appellant named above was the Plaintiff in **Civil Suit No. 017** of 2013 which he filed against 12 Defendants for a declaration that the Appellant and his brother Bageya Rafairi are the rightful owners of the suit land located in Kibingo L. C. I, Bwamiramira subcounty, Kibaale District and that the Respondents are trespassers. The Appellant sought for general damages for trespass, an eviction order and any other relief court deemed fit. - It was the Plaintiff/Appellant's case that he and his brother Bageya $[2]$ Rafairi inherited the suit land in 1990 as their share from their father a one Edward Tinkamanyire where upon with the knowledge of the Respondents, they took possession of the same and jointly started utilising the land by way of cultivation of various permanent and seasonal food crops uninterrupted by anybody with the knowledge of the Respondents. - That in 2012, the Defendants without the consent and knowledge $[3]$ of the Appellant, entered on the suit land and slashed and, or destroyed his crops which they accordingly harvested from the suit land. The Defendants then grew maize, beans, ground nuts

and constructed a temporary house thereon despite the Appellant's protests which were in vain thus prompting him to institute the present suit.

- On the other hand, the Defendants, denied the Appellant's claim $[4]$ and contended that the suit land belonged to Karubanga Leonard (5^th defendant), brother to Kyesereka Mikail, the Respondent, who inherited it from his late father Rwakaikara Banage before his demise in 1976 as his share. - The 5^th Defendant and his brother, the 6^th Defendant [Respondent $[5]$ on appeal] averred and contended that upon the 5^th Defendant acquiring the suit land from their late father Rwakaikara Banage, he took possession of the land and developed it by way of construction of a house and planting various crops like avocadoes, coffee, bananas etc. thereon until in 1979 when he mentally fell sick and was taken to his mother in Karama where he stayed until 2012. - That it was during that time when the 5^th Defendant was $[6]$ undergoing treatment at his mother's place in Karama village that the father of the Appellant Edward Tinkamanyire and his sons encroached on the suit land claiming that he bought it from Karubanga Leonard (5^th Defendant) in 1984, the period that he was still sick. That when the said Karubanga Leonard (5^th Defendant) returned to his land in 2012, he found when the Appellant and his brother Bageya Rafairi having occupied the land, destroyed his crops and constructed a house thereon. - Initially the Plaintiff/Appellant had sued 12 Defendants in the $[7]$ lower court. During scheduling conference before the trial magistrate, the Defendants, save the 5^th and 6^th Defendants, declared that they had no interest in the suit land. The $5^{th}$ **Defendant** unfortunately passed on during the pending of the suit and as a result, the trial magistrate struck him off the record. The suit was in the premises heard against the 6^th Defendant only, now the Respondent.

$\mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{L}^{\mathcal{L}}] = \mathbb{E}[\mathcal{$

$\mathcal{L} = \frac{\mathcal{L}(\mathbf{r})}{\mathcal{L}(\mathbf{r})}$

The trial magistrate upon correctly directing herself on the burden $[8]$ of proof in civil suits that the burden of proof is on the Plaintiff/Appellant to prove his case on the balance of probabilities found as follows:

$\frac{1}{2}$

- (a) That Edward Tinkamanyire (PW3), father to the Appellant's claim that he bought the suit land from the Respondent in 1978 is acknowledgment that the land initially belonged to the Respondent's family. That however, the Respondent could not have disposed of the property of his late father Rwakaikara Banage who died in 1976 without obtaining letters of administration as provided for under S. 191 of the **Succession Act.** - (b) The Appellant relied on a **Deed of gift** dated 20/6/1990 (P. EXH. 1) as proof that his father Rwakaikara gifted him the land which bore its address as "LC Kibingo" which never existed in 1990. That at that time it was the "RC" system that existed and that besides, the document did not indicate what was given to the Appellant and his brothers. $\mathcal{L}^{\text{GNN}}_{\text{max}}$ $\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L}$ - The trial magistrate concluded that the Appellant/Plaintiff failed $[9]$ to prove on a balance of probabilities ownership of the suit land and accordingly dismissed the Appellant's case with costs and decree the suit land to the Respondent. - [10] The Appellant/Plaintiff was dissatisfied with the judgment and orders of the trial magistrate upon which he lodged the present appeal on the following grounds of appeal. - The learned trial magistrate erred in law and fact when she $1.$ failed to properly evaluate the evidence on record thus leading $\mathbf{e}^{\mathbf{r}_0}$ $\cdots$ her to reach a wrong decision. - The learned trial magistrate erred in law and fact when she $2.$ - held that the law on estoppels did not apply to the respondent $\mathcal{O}_{\mathcal{O}_{\mathcal{O}_{\mathcal{O}}}}(x)$ in the instant case thus leading her to reach a wrong decision. - 3. The learned trial magistrate erred in law and fact when she held that the suit land belongs to the respondent hence leading her to reach a wrong decision.

$\overline{3}$

$\mathbf{e} = \mathbf{e} \mathbf{e}^{\mathbf{a}}$ , $\mathbf{e}^{-1}$ $\mathbf{e}^{\mathbf{a}} = -\frac{\cos^{-1} \theta}{\sin^2 \theta}$ $\mathbf{e}^{\mathbf{a}} = -\frac{\cos^{-1} \theta}{\sin^2 \theta}$

$\Omega = 10.05 \frac{\text{m}}{\text{m}}$

$\begin{bmatrix} 1 & 1 & 1 \\ 1 & 1 & 1 \end{bmatrix}$

$\mathbf{a} = \mathbf{a} \mathbf{b} = \mathbf{c} \mathbf{a}$

$\omega_{\rm{max}} = \omega_{\rm{max}} - \omega_{\rm{max}}$

- The learned trial magistrate erred in law and fact when she $4.$ granted to the Respondent remedies such as eviction order, general damages etc. yet the Respondent was a defendant and had not filed a counterclaim to entitle him to such remedies. - The learned trial magistrate erred in law and fact when she 5. general damages of shs. Respondent the awarded 10,000,000/= which the Respondent had not pleaded or led evidence to prove the same and without giving reasons to justify the award of the same and that the award of shs. 10,000,000/= as general damages was so excessive and too high thus prejudicing the appellant. - The learned trial magistrate erred in law and fact when she $6.$ held that the law of limitation was not applicable to the instant case thus leading her to reach a wrong decision.

# **Counsel legal representation**

$\frac{1}{\sqrt{2}} = \frac{1}{\pi}$

$\omega = 1$ $\omega = \frac{\pi}{8}$ $\omega = \frac{\pi}{8}$ $\mathcal{L} = \mathcal{L}$

$\mathbf{e}^{-\infty}$

$\frac{\epsilon}{\epsilon}$

- [11] The Appellant was represented by Mr. Aaron Baryabanza of M/s Baryabanza & Co. Advocates, while the Respondent was represented by Mr. Wosamwa Emmanuel of M/s P. Wettaka Both Counsel filed their respective Advocates. Kampala. submissions for consideration in the determination of this appeal. - [12] This court is alive to its duty as a $1^st$ appellate court to subject the evidence on record as adduced before the trial court to fresh and exhaustive scrutiny. It is to re-appraise the evidence adduced at trial and draw inferences therefrom, bearing in mind that this court did not have the opportunity to observe the demeanour of witnesses at trial Fr. Nansensio Begumisa & Ors Vs Eric Tiberaga, S. C. C. A. No. 17 of 2000 [2004] KALR 236 and Kifamunte vs Uganda S. C. Crim. Appeal No. 10 of 1997. - [13] Both counsel in this appeal submitted on and argued grounds 1, 2, 3 and 6 together for they appear to revolve around how the trial magistrate evaluated the evidence before her and grounds 4 and 5 separately to arrive at the dismissal of the suit. This court shall determine this appeal in the same order.

$\overline{4}$

$\mathcal{M} = \mathcal{M}_{\text{max}}$

$\langle \psi \rangle = \langle \psi \rangle = \langle \psi \rangle = 2.2$ (8)

$\mathbf{x} = \mathbf{x}^{-1} \qquad \mathbf{z} = \mathbf{z}$

# Grounds 1, 2, 3, & 6 - Evaluation of the evidence.

$\frac{1}{\sqrt{2}}$

- The trial magistrate concluded that the Appellant/Plaintiff failed $[9]$ to prove on a balance of probabilities ownership of the suit land and accordingly dismissed the Appellant's case with costs and decree the suit land to the Respondent. - [14] Counsel for the Appellants submitted that the trial magistrate refused the evidence of the Plaintiff/Appellant and his witnesses on the ground that there was no sale agreement (proof of purchase of the suit land from the Respondent) for reason that there was no sale agreement which was tendered in court. That she also based her decision to reject the evidence of the Plaintiff/Appellant's father (PW3) on the ground that no report of the loss of the sale agreement was made to the police or any authority. That the trial magistrate erroneously rejected the evidence of the loss of the sale agreement between the Appellant's father (PW3) and the Respondent yet there was explanation from PW3 that the agreement got lost in his house although he never knew when it got lost and therefore that he could not have reported its getting lost to the authorities. - [15] In my view, in absence of the purchase agreement (claimed to had got lost) upon which the Appellant's father bought the suit land, the Appellant was under duty to adduce any other available evidence to prove the purchase, such evidence would have included the evidence of the witnesses to the agreement. The Appellant failed to do so i.e., adduce evidence of any of the witnesses to the agreement. - [16] In the instant case, the Appellant adduced evidence of his father, Edward Tinkamanyire (PW3) who testified that there were people who witnessed the purchase and the agreement. He however claimed that he could not recall their names and therefore, none of the witnesses testified in court to confirm his claims that he indeed purchased the suit land from the Respondent. The Respondent on the other hand denied ever selling him the land. $\mathcal{L} = \mathcal{L}$

$\mathsf{L}$

$y_i = \infty$ el $\mathbb{F}_2$

$\kappa \cdot \hat{\sigma}^{\kappa}$ , $\sigma \cdot \hat{\theta} = \frac{\kappa}{\pi}$ , $\sigma \cdot \hat{\theta} = \frac{\kappa}{\pi}$ and $\hat{\theta} = \frac{\kappa}{\pi}$ .

$\alpha$ $\beta$ $\alpha$

$\label{eq:1} \mathbf{a} = \frac{\mathbf{a} \mathbf{a} - \mathbf{a} \mathbf{a}^T}{\mathbf{a} \mathbf{a}^T} \quad \mathbf{a} = \frac{\mathbf{a} \mathbf{a}^T}{\mathbf{a} \mathbf{a}^T} \quad \mathbf{a} = -\frac{\mathbf{a} \mathbf{a}^T}{\mathbf{a} \mathbf{a}^T} \quad \mathbf{a} = -\frac{\mathbf{a} \mathbf{a}^T}{\mathbf{a} \mathbf{a}^T} \quad \mathbf{a} = -\frac{\mathbf{a} \mathbf{a}^T}{\mathbf{a}^T}$

$\begin{array}{lll} \scriptstyle{\text{SG}} & \scriptstyle{\text{11}} & \scriptstyle{\text{6}} & \scriptstyle{\text{7}} & \scriptstyle{\text{7}} \end{array}$

The onus was on the Plaintiff/Appellant to prove the purchase. Neither his brother Byaruhanga Christopher (PW2), nor Isingoma Lutaya (PW4), an LC official who heard the Appellant's claim case before the L. C.s. PW4, aged 40 years stated categorically that he did not know how the Appellant acquired the suit land.

[17] The other evidence the Appellant relied on was the Deed of Gift dated 20/6/1990 (P. Exh.1) to prove that his father, Edward **Tinkamanyire** (PW3) gifted him the suit land. This deed (P. Exh.1) was amply discredited by the Respondent and the trial magistrate correctly found it not authentic for it had an address of "L. C. I Kibingo" yet at the time in 1990, L. Cs were not existent. The Appellant failed to explain how the purported deed of gift came to bear the address of "L. C. I Kibingo" instead of "R. C. I Kibingo", as the system was at the time. During cross examination, the Appellant (PW1) stated thus:

$\overline{u} = u$

$\mathbf{u} = \mathbf{u}_0 = \mathbf{0} \mathbf{u}$

$\frac{1}{2}$ $\mathcal{A}^{\mathcal{A}}$

"In 1990 the local council was called L. Cs. You may be right if you said they were called R. Cs (shown a document of donation). It reads Kibingo LC I".

Clearly, the Appellant failed to explain the anomaly.

[18] On the other hand, the Respondent explained the Appellant's possession and use of the suit land for a long time. Whereas the Appellant's father claimed to had purchased the suit land from the Respondent, the Appellant's father did not reveal when he actually bought the land from the Respondent. The Appellant himself claimed that his father (PW3) told him that he bought the suit land from the Respondent in 1978. The Respondent as (DW2) testified thus:

"The suit land belonged to my grandfather Byekwaso who is in fact buried on the suit land. Upon **Byekwaso's** death, the land was inherited by his sons Rwakaikara Banage (my father) and Mijumbi. My father died in 1976 and left his estate to his sons Karubanga Leonard and Myself (now defendant).

My brother ran mad in 1979 and was brought to Karama to be taken care of by our mother leaving the land unattended.

$\tilde{E}_{\mu}$ = $\pi$

$\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

$a^{-1} = c$ $g_{\alpha} \beta_{\alpha} \frac{a^2}{a^2} + \cdots + \beta_{n-2} g_{n-1}$ $a = -a^{n-1} + \cdots + a^{n-1}$ .

$\mathcal{S} = \mathcal{I}$

$\begin{array}{ccccccccccccccccccccccccccccccc} & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &$

$\mathbf{a} = \begin{bmatrix} \mathbf{a} & \mathbf{a} & \mathbf{a} & \mathbf{a} \\ \mathbf{a} & \mathbf{a} & \mathbf{a} & \mathbf{a} \end{bmatrix}$

$\frac{u}{\omega}$ + $u = \frac{1}{\omega}$ + $u = \frac{1}{\omega}$

At the time, I was still young and was then staying with my mother at Karama. My brother Karubanga Leonard died in 2014.

In 1983, Edward Tinkamanyire (Plaintiff) took advantage of our absence and encroached/grabbed the suit land and started utilising the same..... That in 2012, my brother Karubanga Leonard returned to claim the suit land but was denied access of the same. Having been denied just and fair assistance in the recovery of the suit land, he sought help from the Resident District Commissioner (RDC), who summoned the Plaintiff to furnish him with purchase agreements and as the said Plaintiff and his father failed to bring proof of ownership of the suit land, the RDC ordered the Defendant's brother [Karubanga Leonard] to take ownership of the suit land".

- [19] The above evidence of the Respondent (who testified as DW2) was not challenged at all during cross examination of the Respondent by the Appellant's counsel and no evidence had been adduced by the Appellant to refute it. - [20] It follows from the above therefore, the Appellant's submission that the Appellant's father having taken possession of the suit land from 1983 to 2012 when the Respondent started claiming it, that then, he is estopped from claiming the same hold no substance. The Respondent and his late brother Karubanga Leonard were entitled to commence claims over their land in 2012 when they returned from Karama village and found the Appellant in unlawful occupation of the land. They could not reclaim their land that was left unattended while in absentia. They had to claim it upon their return. - [21] As regards the claim by the Appellant that the Respondent's claim of the suit land in 2012 had been extinguished under S.5 Limitation Act, I agree that it is now established law that the Limitation Act is no longer limited to registered land only, it extends to land held under customary tenure, John Oitamong vs

$\overline{7}$

$\alpha^2$ = $\alpha_2^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha_3^2$ = $\alpha$

Mohammed Olinga [1985] HCB 86 and Badiru Mbazira vs Abasagi Nansubuga [1992 - 1993] HCB 241. The trial magistrate in the premises erred in law and fact when she found and held that the Limitation Act does not apply to customary tenure.

- [22] However, in the instant case, I find that nevertheless, the trial magistrate was correct to conclude that the law of limitation does apply to this suit on the grounds that it is the not Plaintiff/Appellant himself who had sued in the matter. The Appellant cannot properly raise the notion of limitation in a suit that was commenced by himself against the Respondent. The limitation doctrine can only be invoked as a shield and not as a sword. The notion of limitation would only be available to the Respondent as the Defendant against the Appellant as the Plaintiff. - [23] In the premises, I find that Ss.5 and 16 of the Limitation Act being invoked by the Appellant are not available to him as the Plaintiff against the Respondent who was the Defendant in the instant matter since the limitation of action exclusively runs against the Plaintiff, see F. X. Miramago vs Attorney General [1979] HCB 24. - [24] Counsel for the Appellant submitted relying on the doctrine of adverse possession. Again, I find that the doctrine of adverse possession is not available to the Appellant because, in the first place, the doctrine was not pleaded by the Appellant and secondly, the evidence on record does not support it. The Appellant's possession of the suit land was straight away contested by the Respondent and his brother Karubanga Leonard upon their return from Karama village in 2012, where they had been when the Appellant and his father took advantage of their absence and encroached on the suit land. For one to qualify under the doctrine he/she must have utilised the land uninterrupted for 12 years or more and with the owner's knowledge/consent as a lawful occupant. To avail the Appellant the doctrine which he never pleaded would amount to permitting him to depart from his pleadings which is contrary to 0.6 r.7 CPR.

$\mathcal{S}$

$\overline{X}$ $\overline{z}$ $\overline{z}$

$\tilde{t} = \tilde{u}$ :

$\frac{1}{2} \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left($

- [25] As regards the claims by counsel for the Appellant that there were contradictions or/lies in the Respondent's witnesses, on perusal of the record, this court has not been able to find any of the alleged contradictions and or lies. It is the context counsel for the Appellant perceived the evidence that led him to believe so. The The Respondent and his brother Respondent's case is clear. Karubanga returned to their land and found the Appellant and his father having illegally occupied and were using the land. The Respondent and his brother tried to re-occupy their land but were denied access by the Appellant and his father. This is when trespass is taken to had commenced in view of the fact that the Defendant and his brother had left the land unattended. In the premises, this court finds that there were not any serious contradictions in the Respondent's evidence that the trial magistrate ignored to occasion a miscarriage of justice to the Appellant. - [26] For the reasons above, I find that grounds 1, 2, 3 and 6 are devoid of any merit and they in the premises accordingly fail. - Grounds $4 & 5$ : - The learned trial magistrate erred in law and fact $(a)$ when she granted to the Respondent remedies such as eviction order, general damages etc. yet the Respondent was a defendant and had not filed a counterclaim to entitle him to such remedies. - The learned trial magistrate erred in law and fact $(b)$ when she awarded the Respondent general $10,000,000/=$ when the damages of shs. Respondent had not pleaded or led evidence to prove the same. - [27] I agree with counsel for the Appellant's submission that the learned trial magistrate erred in law and fact when she awarded the Respondent remedies which are only available to a successful Plaintiff or counterclaimant.

The pleadings of the parties are clear. The Respondent never filed a counterclaim in the amended written statement of defence and therefore did not seek any payers. It is now well established that a party cannot be granted relief which it has not claimed in its pleadings, Damara Agro Processing C. Ltd & Anor vs Nathan Tabahikiza, Civil Appeal No. 101/2014 (CA) and Butera Edward vs Mutalemwa Godfrey Civil Appeal No. 391 of 2017 (C. A).

- [28] In the premises, I find that the trial magistrate erred in law and fact when she awarded the Respondent general damages of shs. suffered by the alleged inconvenience $10,000,000/=$ for Respondent. However as regards the orders declaring that the suit land belongs to the Respondent, vacant possession in favour of the Respondent and a permanent injunction against the Appellant, I find these orders being consequential to the trial magistrate's decision. It was the finding of court that the Appellant had no interest at all in the suit land thus his suit was dismissed with costs. It follows therefore that since he was found to have no interest in the suit land, the above orders by the trial magistrate did not occasion any miscarriage of justice to the Appellant to warrant court's intervention. - [29] In the premises, the $4^{th}$ and $5^{th}$ grounds of appeal succeed in part. The trial magistrate's judgment and orders are upheld save for orders of general damages of shs. 10,000,000/= as awarded to the The Appeal is Respondent which are accordingly set aside. therefore all in all found to be devoid of merit and it is accordingly dismissed with costs.

Dated at Hoima this 13^th day of September, 2024.

$\mathbf{z} \times \mathbf{z} \times \mathbf{z} = \mathbf{z} \times \mathbf{z} \times \mathbf{z} \times \mathbf{z}$ Byaruhanga Jesse Rugyema JUDGE $\mathcal{L}^{\mathcal{L}}$

$10$