[2024] UGHC 1085

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – LD – CA – 026 0F 2022 BEGUMISA GEOFREY :::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS** 6 **OWEYESIGIRE BAMWENEGWIRE ::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA JUDGMENT**

#### 9 **Introduction***:*

The appellant being aggrieved with the judgment and orders of His Worship Kirya

Martins, Magistrate Grade One at Kamwenge, dated 14 12 th October 2021, lodged this appeal.

### 15 **Background***:*

The appellant and the Respondents are biological brother and sister. It was the

- 18 Appellant's case that he bought the suit land in 1987 from Begyirira James who had bought the same land from Fred Sebusin in 1983. That after purchase, the appellant took immediate possession of the same. The appellant took possession and started - 21 to cultivate the same and spent 33 years without any interruption. That in November 2020, the Respondent returned from Mubende where she had lived since 1985 and she trespassed on and started claiming ownership of the suit land. - 24

The Respondent on the other hand contended that she purchased the suit land from Alfred Sengiyunva in 1980 and took possession for about 6 years and after she got 27 married, she relocated in 1986 to Rukungiri with her husband. That the Respondent requested the appellant to take care of her land and utilize it. In October 2020, she


returned and took possession of her land and started to utilize the same. The Respondent included a counter claim seeking among others a declaration that the 3 land belonged to her. In reply to the counter claim, the appellant denied the Respondent ever owning the suit land.

#### 6 **Findings of the trial Court:**

Judgment was entered in favour of the Respondent on the counter claim where court 9 declared that the appellant was a caretaker of the suit land who had refused to hand it over to the Respondent and thus a trespasser, and made relevant orders.

### 12 **Grounds of Appeal:**

- **(1)The learned trial Magistrate erred in land and in fact when he failed to properly evaluate the evidence in record thereby reaching to an** 15 **erroneous decision which caused injustice.** - **(2)The learned trial Magistrate erred in law and fact in reaching his decision when he engaged in conjuncture and speculation thereby basing his** 18 **decision on erroneous assumptions not supported by the evidence on record and caused a miscarriage of justice.** - **(3)The learned trial Magistrate erred in law and fact when he held that the agreements dated 20** 21 **th August 1983 and 4/08/1987 were concoctions when no fact to invalidate them was led by the defendant.** - **(4)The learned trial Magistrate erred in law and fact when he held that** 24 **Begirira James did not pass good title to the plaintiff/counter defendant thereby causing a miscarriage of justice.**


- **(5)The learned trial Magistrate erred in law and fact when he held that Alfred Sengiyunva passed on good title to the defendant/counter claimant** 3 **thereby causing a miscarriage of justice.**

**(6)The learned trial Magistrate erred in law and fact when he awarded general damages to the counter claimant/Respondent when she didn't not** 6 **specifically plead and strictly prove them in her counter claim thereby causing a miscarriage of justice.**

- **(7)The learned trial Magistrate erred in law and fact when he ordered the** 9 **counter defendant/appellant to be evicted within 30 days from the date of judgment thereby by causing a miscarriage of justice.** - **(8)That the learned trial Magistrate erred in law and fact when he failed to** 12 **carry out a locus in quo per the law hence causing a miscarriage of justice.**

**(9)The learned trial Magistrate erred in law and fact when he ordered the counter defendant/appellant to pay costs of the suit to the Respondent** 15 **thus causing a miscarriage of justice.**

**Legal Representation and Hearing:**

The appellant was self-represented while the Respondent was represented by M/s 18 Legal Aid Project of ULS Kabarole. The appellant filed written submissions in support of his case as well as learned counsel for the Respondent.

## 21 **Duty of this Court:**

As the first appellate court, my duty is to subject the evidence presented to the trial 24 court to a fresh and exhaustive scrutiny and re-appraisal before coming to my own conclusion. *(See: Father Nanensio Begumisa & 3 others vs Eric Tiberaga SCCA 17 OF 2000 [2004] KALR 236)*. I am duty bound to do a re-evaluation of the 27 evidence on record of the trial court as a whole weighing each party's evidence,


keeping in mind that as opposed to the trial court, I had no chance of seeing and hearing the witnesses testify to assess their demeanor and consistency. *(See: Uganda*

3 *Breweries v Uganda Railways Corporation 2002 E. A)*

## **Consideration of Grounds 1, 2, 3,4 and 5 of the Appeal:**

The appellant Begumisa Geofrey *(PW1)* aged 58 years testified that he purchased the suit land from Bigirira James the husband of his sister (the Respondent) on 9 4/08/1987 at shs 120,000/= and an agreement of sale was made to that effect (*PEX1*).

- Bigirira James had bought the land from Fred Sebusin. After selling the land to the appellant, Bigirira then went and bought land at Mubende where he stays with his - 12 wives. The Respondent continued returning to Kamwenge without asking about the suit land. That she returned in 2020 claiming ownership of the suit land. In cross examination, he stated that Bigirira had originally bought the suit land for his wife - 15 the Respondent. The appellant stated that at the time he bought the suit land from Bigirira, he never bothered to consult his sister the Respondent. - 18 *PW2 (Bigirira James)* aged 70 confirmed that he bought the suit land from Fred Sebusin per the agreement in PEX2 and later sold it to the appellant and shifted to Mubende with his two wives including the respondent. In cross examination he 21 stated that they had lived on the suit land with the respondent. That they were cultivating part of the same and the rest was a bush and his home was on the same

land.

*PW3 (Ntamuhanga Jackson)* stated that he had known the appellant since 1989 as a neibour and that the suit land belonged to the appellant. In cross examination he 27 stated that he became a neighbor to the appellant in 1989.


*PW4 (Mugisha Kelly)* testified that she came to stay in the area in 1982 after leaving 3 Kabale and that she knew the land was for the appellant because the appellant was on the suit land. In cross examination she stated that she did not know how the appellant acquired the suit land. That she was born at Kabale and shifted to 6 Kamwenge in 1982.

*PW5 (Karegesa Samwiri)* who was a parish chief in 1980's testified that the 9 appellant called him to sign on his land agreement in 1983 as a parish chief. That the agreement was between Begirira James and Begumisa and the land was at Kyabandara. In cross examination he stated that he signed the agreement on 12 **20/08/1983**. That the agreement dated **4/08/1987 (***PEX1***)** was not signed by himself.

That he signed on another.

- 15 *DW1 (Oweyesigire Jeniphera Bamwenegwire)* stated that they shifted from Kabale Rubaya to Kamwenge with their mother Jovans Kabana (deceased) and uncle Kasana (deceased), and settled at Kyabandara, Kamwenge around 1965 when she 18 was aged 19 years. That her mother and uncle had sold off the land they inherited - from Kabale to buy the land at Kyabandara. That she stayed at Kyabandara for two years and later got married to a man in Kyabandara called John Meziyeka who took - 21 her to Bombo barracks in Kampala. That occasionally, with her husband, they would visit the parents at Kyabandara and later identified land which they bought. That the husband died in war and later she returned home with two daughters she had - 24 produced with him and other two children. That while on the said land, her uncle introduced her to another man called Bigirira James whom she later married and produced six children. That her in-laws, the brothers of John Meziyeka, did not like - 27 Bigirira James and subsequently, she shared the land she had bought with John


Muziyeka with his the children. That after sharing, she remained with her portion which she later sold and bought land adjoining that of the appellant. That she erected

- 3 a house and planted a banana plantation. That later Bigirira James joined her and they stayed on the suit land. That the said Bigirira James also married her cousin sister and this annoyed her clan, and her husband thus decided to take both of them - 6 to Rukungiri. That she openly handed over her land to the appellant in the presence of all the people and told him that if returns, she would own up her land. That she also left him with her daughter she had with the deceased husband John Meziyeka. - 9 That while in Rukungiri, she produced 6 children 4 boys and two girls. That later, Rukungiri became small, and they had to shift to Mubende. That while in Mubende, the husband sold off 8 acres of the land they had and shifted to Bunyoro with her - 12 cousin sister who was the second wife and left her with only 2 acres. That she later returned to Kamwenge, Kyabandara where she had left her land with her brother in October 2020. That on 31/11/2021, she called the appellant at the mother's home - 15 and informed him of the plans to regain her land. That he told her that she should not talk about land. That she reported the case to authorities and while before the committee, the appellant claimed that he had bought the suit land from Begirira her - 18 husband. That he was told to bring an agreement and he said that the same was with Begirira. That her agreement when she bought the land got lost due to the numerous migrations they had. No write up was made when living the land with the brother in 21 1986.

*DW2 (Alfred Sengiyunva)* aged 65 years testified that he was a resident of 24 Kyabandara- Kamwenge District. That he knew the parties as brother and sister. That he sold land to the Respondent. That he had also inherited the same from his father


Phillipo Binekwa in 1977. This land prior belonged to Sebusin before 1977. That he sold the land to the respondent in 1980 in the presence of Kamili Mpizze, 3 Rutamanya, Baseneri (the author and Kasana, father to the parties), Simon Kazooba, elder brother to the appellant. That he sold it at shs 6000. At the time of purchase, the respondent had lost her husband

*DW3 (Zabikile Simeo)* aged 75 years testified that the appellant his nephew and the respondent his niece. The Respondent got married to Miziyeka John, who took her 9 to Bombo where he died during Amin's war. That he picked her and stayed with her in Kampala where he lived. That it was then that she got the current husband. Her late husband had land in Kamwenge where they stayed before. That the respondent 12 indicated that she wanted to return home since the cost of living in Kampala was a bit high. That she later stayed on the land of her late husband which was later divided with his children. That the respondent sold off her share and used the proceeds to 15 buy the land in dispute. That the clan members chased Begirira from their land having married two sisters and Begirira shifted with his two wives. That the respondent left the daughter that the defendant had with John Meziyeka with the

- 18 appellant and she grew up on the said land till she got married but later passed on. When the respondent left, he did not know the person with whom she left the land but used to see the appellant use the same. That she left secretly since the in-laws - 21 wanted to kill Begirira James. That she knew the respondent as the owner of the suit land and offered her a tree while constructing a house on the suit land. That at the time the house was constructed, Begirira James was not around. In cross 24 examination, he indicated that the land boarders a stream from his premises where he used to stay.


*DW4 (Kazooba Simon)* aged 55 years testified that the appellant was his biological brother and the respondent was their elder sister. That in 1977, the respondent got 3 married and came to check on them in Kyabandara with her husband John Meziyeka. That they loved the place and John Meziyeka decided to buy land. The land was bought from Uwimana. Later they sent money to construct a house thereon. In 1979, 6 John Meziyeka died in the Amin war and the sister (respondent) returned with the children. That they stayed on the land and later Simeo their uncle came with Bigirira James. That the relatives of John Meziyeka got jealous because Bigirira James had 9 married their in-law. The children of the late John Meziyeka shared the land with the respondent who sold her share and approached him to help her get better land. That Fred Segiyunva had land that his father had left for him which the father got 12 from Sebusin. Bigirira James started staying with the respondent, which sparked controversy with the relatives of late John Meziyeka who wanted to kill him. That there was a banana plantation on the land thus they agreed that the daughter that the 15 defendant had with the late John Meziyeka stays with the grandmother and the appellant to keep caretaking the suit land. That the appellant kept using the suit land and when the respondent would return, she would check on the same. That he later 18 heard that the appellant bought land from Begirira. That he had no idea about the alleged sale. That he was present when the land was handed over to the Begumisa (appellant). That the defendant and her husband called him and informed him that 21 they desired to shift but leave the suit land under the care of Begumisa and her late mother was also present. That he was present when the respondent was buying the

land. The secretary was Businari Sengiyunva Fred who was known to them as a

24 neighbor.

#### *Analysis of the Evidence:*

 The appellant claimed that he bought the land in dispute from PW2 (James Begirira) 3 and exhibited PEX1 as his purchase agreement and PEX2 as PW2's purchase agreement with Fred Sebusin. PEX2 was not signed by Fred Sebusin and it is clear there from, that the person who wrote the document is the one who wrote the name 6 of Sebusin. Eyebrows are also raised by the fact that the same PEX2 was signed by the appellant who in his testimony as noted by the trial Magistrate was silent on such fact. Under section 92(a) of the Evidence Act, oral evidence is admissible if it is 9 intended to discredit a document. The learned trial Magistrate noted that mere admission of document does not make the contents thereof valid. That court must examine the said document in relation to other material evidence to test its credibility 12 and authenticity. The learned trial Magistrate made a valid observation that the appellant was silent on being a witness to the sale between PW2 and Sebusin. This was crucial since the appellant derived interest there from. The learned trial 15 Magistrate thus validly observed that the document on which the appellant derived interest (PEX2) had serious issues of authenticity and validity. None of the witnesses who witnessed on PEX2 appeared in court to confirm the existence of the said 18 document. I thus agree with the trial Magistrate that PEX2 was forged to create interest in the suit land by PW1 and thus declared it forgery. As rightly observed by the trial Magistrate citing the position of the Court of Appeal in *Godfrey Ojwanga v*

- 21 *Wilson Bagonza, C. A. C. A No. 25 of 2002* that;*"In order for the appellant to claim interest in the land, his title ought to be derived from someone who had a recognized right and title on the land.".* Where the person from whom title is derived has none, - 24 no valid subsequent interests can be passed to another person. PW2 failed to substantiate his claim over the suit land as such he could not pass any valid interest to the appellant. Suspicion of connivance between the appellant and PW2 to abate


the interest of the Respondent was seen in the admission by the appellant that he did not bother to contact her sister the Respondent who was using the suit land. He was

- 3 fully aware the land was bought for the Respondent. PW2 also confirmed that the land was bought for the Respondent. - 6 The Respondent's evidence on the other hand was cogent and not contradicted in cross examination. She gave a detailed, elaborate, clear, consistent and well corroborated account of how she acquired the suit land. Her account was not - 9 successfully challenged in cross-examination. I thus agree with the observation of the trial Magistrate that the evidence of the defense was credible and not discredited. The totality of the evidence ably demonstrated that the appellant was only a care- - 12 taker of the suit land belonging to the respondent, but not owner. A care-taker, no matter for how long, remains a trustee of the owner of the land or property and his authority over such property or land is abated the moment the owner revokes such - 15 trust. Whereas the appellant stayed on the land and used the land for 33 years as claimed, he had no interests in the suit land. He was only to look after the said land and handover to the owner on the demand or revocation of the trust. A care-taker is - 18 a trustee and only enjoys rights over trust property in the currency of such trust. Once the trust is revoked by the owner of the property either by word of conduct, his further use of the land constitutes trespass as rightly noted by the trial Magistrate. - 21 This is because his further entry or stay is against the will and consent of the owner of the property which has the resultant effect of interfering with the lawful possession of the owner of the suit land.(See: *Justine E. M. N Lutaya v Stirling Civil* - 24 *Engineering Co. Ltd, SCCA No. 11 of 200*2). In this case DW1 stated that on 31/11/2021, she called the appellant home and informed him that she had intention to regain her land. Therefore, the permission to continue lawful possession and use


of the suit land by the appellant abated when the authority was terminated or revoked by the appellant. Therefore, any further stay and use of the suit land without the 3 consent of the Respondent constituted actionable trespass. I therefore find that the learned trial Magistrate rightly found that the appellant failed to prove his claim. The Respondent on the other hand placed cogent evidenced on record proving that the 6 suit land was for Respondent/Counter claimant and the continued use of the same against her will and permission constituted actionable trespass. Therefore, grounds 1, 2, 3,4 and 5 fail.

## **Ground 8: The learned trial Magistrate erred in law and fact when he failed to carry out a locus in quo per the law hence causing a miscarriage of justice.**

- 12 It is a settled principle of law that the essence of locus in quo is for court to verify the evidence presented by the parties at trial with what is on ground. At locus in quo, parties are not allowed to lead fresh evidence and if it arises, the opposite party must - 15 be given an opportunity to cross examine such witnesses. Whereas locus in quo is essential, the non-conduct or irregular conduct of the same is not a ground to set aside a well-reasoned judgment of court as long as there is evidence on record to - 18 support the finding arrived at by Court. (See: *Yeseri Waibi Vrs. Edisa Lusi Byandala (1982) HCB 28; Manweri Manwa Anthony v Wabalayi John HCCA No. 7 of 2007*). Where court can determine the claims of the parties by virtue of the 21 evidence on record, there would be no reason to set aside a decision of the trial court - on account that locus was not conducted or it was irregularly conducted. - 24 In the present case, the court visited locus on 10/09/2021 at 10:00am. The defendant showered court the boundaries of the land and these were not contested. No fresh evidence was adduced at locus that warranted cross examination from either party.


Court stated the facts which were agreed upon at locus. The fundamental issue that took court at locus was to establish the existence of the land and its extent. This was

3 done and parties consented to the boundaries of the land the developments thereon. I therefore find no fault in the manner in which the locus proceedings were conducted by the trial Magistrate. Therefore, ground 7 fails.

**Ground 6: The learned trial Magistrate erred in law and fact when he awarded general damages to the counter claimant/Respondent when she did not** 9 **specifically plead and strictly prove them in her counter claim thereby causing a miscarriage of justice.**

- 12 It was submitted by the appellant that the learned trial Magistrate awarded general damages to the Respondent which were not pleaded and proved. Learned counsel for the Respondent on the other hand contended that the sum awarded as general 15 damages was fair. That the Respondent had sought to recover 10,000,000/= which - was reduced to 3,000,000/=. - 18 The Supreme Court guided in relation to the power of the appellate court to examine or interrogate an award of damages by the appellate court in *Crown Beverages Ltd v Sendu Edward, SCCA No. 01 of 2005* thus: *"I turn now to the trial court's* - 21 *discretion on matters of damages. The law is now well settled that an appellate Court will not interfere with an award of damages by a trial Court unless the trial court has acted upon a wrong principle of law or that the amount is so high or so* - 24 *low as to make it an entirely wrong principles of law or that the amount is so high or so low as to make it an entirely an erroneous estimate of the damages to which the plaintiff is entitled."* - 27

The general principle of law is that *'general damages'* are such damages as the law presumes to be the natural or probable consequence of the Defendant's act and need


not be specifically pleaded. It arises by inference of law, and need not, therefore, be proved by evidence, and may be averred generally. General damages consist, in all,

- 3 items of normal loss which the plaintiff is not required to specify in his pleading in order to permit proof in respect of them at the trial*. See: Haji AsumanMutekanga v Equator Growers Ltd, SCCA No. 7 of 1995* - 6

General damages are compensatory in nature and intended to put the successful party to the position he or she was before the wrong complained of happened. In the 9 present case, the Respondent sought recover general damages for the inconveniences caused. The trial court awarded shs 3,000,000/= as opposed to 10,000,000/- which

- was prayed for by the Respondent's counsel. I find the award fair and reasonable. - 12 There is no cause to interfere with the same. Therefore, ground 6 of the appeal fails **Grounds 7 and 9:** - 15 **The learned trial Magistrate erred in law and fact when he ordered the counter defendant/appellant to be evicted within 30 days from the date of judgment thereby by causing a miscarriage of justice.** - 18 **The learned trial Magistrate erred in law and fact when he ordered the counter defendant/appellant to pay costs of the suit to the Respondent thus causing a miscarriage of justice.** - 21

It was submitted by the appellant that Rule 9 (1) of the Constitution (Land Evictions) (Practice) Directions 2021, is to the effect that in the event of eviction, court should

- 24 issue adequate notice not less than 90 days. That the trial court thus erred to direct that if he remained adamant he would be evicted within 30 days contrary to the practice direction. - 27


In my re-evaluation, the trial court appears to have proposed the 30 days given the age of the crops which were still young. The Learned Trial Magistrate noted at page

- 3 20 of the judgment and the crops were young and suggestive they were for the appellant. That the appellant was to remove his crops and in the event he remained adamant, he would be evicted within 30 days. Therefore, he took into account the - 6 period the crops were to take to maturity which reasonably sums up to the 90 days provided for under the practice direction. - 9 In the final orders, the trial Magistrate ordered that; "*An eviction order is hereby issued against the plaintiff/counter defendant from the suit land in line with rule 9 of the Constitution (Land Evictions) (Practice) Directions, 2021."* This order - 12 presupposed that the requirement of the rule was to be complied with. I therefore find no merit in ground 7 and the same fails. - 15 Regarding Ground 9, Section 27 (2) is to the effect that costs follow the event. Therefore, a successful party is entitled to costs unless there are exceptional circumstances prevailing against the grant. In this case the Respondent was a 18 successful party. The conduct of the appellant asserting ownership over the suit land - with full knowledge that he was merely a caretaker invited an award of costs against him. It was his conduct that led to the dispute at hand. I therefore find no issue with - 21 the award of costs by the trial court. Therefore, ground 9 also fails.

Consequently, all the grounds of appeal fail and the appeal is accordingly dismissed 24 with costs awarded to the Respondent. The judgment and orders of the trial Court are hereby confirmed by this court. I so order.


Vincent Wagona

**High Court Judge**

3 **FORTPORTAL DATE: 14/11/2024**