[2025] UGHC 180

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KABALE HCT - CIVIL APPEAL NO. 0028 OF 2022 (Arising from Civil Suit No. 0014 of 2014 at Kabale Chief Magistrate's $Court)$

BEYANGA APPOLLO::::::::::::::::::::::::::::::::: $10$

**VERSUS**

# 1. LUCIA BARYEZO BYABAYI

# 2. NZERA TABWEGANO NFUNDIRWE::::::::::::::::::::::::::::::::::::

## BEFORE: THE HON. JUSTICE KAROLI LWANGA SSEMOGERERE 15 JUDGMENT.

This is an appeal from the judgement and orders of the learned Magistrate Grade I, Her Worship Tabaruka Racheal, at Kabale Chief Magistrate's Court (hereinafter referred to as the "Trial Court") delivered on October 14^th, 2022 in Civil Suit No. 0014 of 2014.

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The Plaintiff in the trial court hereinafter referred to as the "Appellant sued the defendants hereinafter referred to as the "Respondents" in an action for special and general damages for trespass to property and malicious damage to property"

The brief facts are the Appellant and Respondents are children of the late Kazenga Tiburisio., and Kotera Kazenga both now deceased formerly of Kabale. That on or 25 about 1975, the deceased gave the Plaintiff his own share of family property, located at Nyamurengyere Ntaraga village, Nyaruhanga Parish, Ikumba Subcounty, Rubanda District, the subject of this suit.

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The alleged cause of action arose on February 7^th, 2014, when the Defendants $\mathsf{S}$ through their workers who were also their relatives, to wit, Byarugaba Emmanuel s/o the second Respondent; and Niwagaba, a charge of the second Respondent cut down 300 pine trees belonging to the Appellant who claims ownership of these

trees who had been in quiet possession of the land since 1975. This information came from Byarugaba Emmanuel and Niwagaba when they were arrested. 10

The Respondents denied the Appellant's claim and asserted they had never individually nor through their agents trespassed on the Plaintiff's land. Rather, that they had sent their workers to plough for them land located at Hanturo whose ownership was not in dispute, as it had been granted to the Respondents as a result of a later distribution of their late father's estate.

The trial Court correctly treated this as a property dispute and at scheduling, the parties framed the following issues for court to resolve;

Whether the Respondents through their workers or agents $(i)$ trespassed on the appellant's land;

Whether the Respondents' agents or workers cut the (ii) Appellant's pine trees; and

**What remedies were available to the parties?** (iii)

At trial, through locus, Court established that the two different descriptions and 25 locations of the Suit land were referring to the same land. The trial Court found that the Suit land is on a hill situated in Ntaraga village, and there are two places on this hill named Nyamuregyere and Hanturo, and the former was at the top of the hill, while the latter was at the foot of the hill.

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The trial Court answered the first issue in the negative when in its evaluation of $\mathsf{S}$ the evidence found that the Appellant had failed to establish ownership of the land. The trial Court stated at page 7 after hearing the Appellant's evidence stated as follows:

"Mere possession and usage of unregistered land does not confirm ownership of the same."

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Further, the trial Court found that the Appellant had failed to prove ownership of the suit land, while the Respondents had proved that the Suit land formed part of the estate of their late father, Tiburisio Kazenga. The Appellant's testimony was contradictory in two respects. First the Appellant stated that he acquired the land in 1983 while litigating with his parents in Murole. There was no written evidence adduced as proof of this gift. His testimony was to the effect that he planted eucalyptus trees contrary to the claim of pine trees in the Plaint. In the circumstances, a claim for trespass could not hold as its first ingredient, proof of ownership had not been established in the Appellant's favour.

- The trial court admitted an inventory distribution document at page 8 and $20$ believed the Respondents' claim that they started using the land after distribution of the estate of their late father. Court also found that the Respondents were the lawful beneficiaries of their late father's estate and could not be trespassers on land where they had an interest. - Dissatisfied with the Judgement and orders of the trial court, the Appellant filed 25 grounds: framed the following appeal and this

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- The learned Trial Magistrate erred in law and fact when she failed to $1.$ evaluate the evidence on record thus occasioning injustice to the Appellant. - 2. The learned Trial Magistrate erred in law and fact when after the Appellant [omission unintended] challenged the distribution document concluded that the suit land formed part of the undistributed estate of the late Tiburisio Kazenga. - 3. The learned Trial Magistrate erred in law and when she failed to realise that the Suit land did not form part of the undistributed estate of the late Kazenga. - 4. The learned Trial Magistrate erred in law and fact when she said that in Uganda, any marriage gift inter vivos must be reduced in writing. - 5. The learned Trial Magistrate erred in law and fact when she failed to consider adverse possession and the law of limitation. - 6. The learned Trial Magistrate erred in law and fact when she declared the defendants not trespassers on the land, she declared the land to form part of the estate of the late Tiburisio Kazenga.

### **Representation:**

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The Appellant is represented by Messrs. Bikangiso & Co. Advocates, while the Respondents are represented by Messrs. Bakanyebonera & Co. Advocates. 25 Respective Counsel proceeded by way of written submissions.

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#### **Discussion and Analysis of Court:** $\mathsf{S}$

This court is the first Appellate Court, and is therefore under a duty to evaluate the evidence on the Court record and come up with its own conclusions. This duty was enunciated by the Supreme Court in *Kifamunte Henry v Uganda, Supreme Court Criminal Appeal No. 10 of 1997.* This duty on the first appellate Court is to subject the evidence to a fresh exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusions from it. In doing so, the Court has to [sic] to bear in mind that it has neither seen nor heard the witnesses and should therefore make an allowance in this respect,

See Selle v Associated Motor Board 1968 EA 123 cited with approval in Kifamunte (ibid) and followed by Emokor J., this Court in *Kyampaire* 15 Peninah v Turinawe Emmanuel and another, Civil Appeal No. 37 of 2019 decided on April 10, 2025.

I have perused the submissions of Counsel and studied the authorities made reference to by Counsel. I will adopt the same grounds with some modification for resolution of this appeal.

Ground 1: Whether the learned Trial Magistrate erred in law and in fact when she failed to evaluate the evidence on record thus occasioning injustice to the plaintiff.

It is important to note from the outset that the suit land was unregistered land outside of the provisions of the **Registration** of **Titles Act**, **Cap 240** and other laws pertaining to registered land. The testimony of both parties alluded to the fact that it was family land. The locus visits which is good practice under the **Land**

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Practice Directions, 2007 established that whereas each party had a distinct $\mathsf{S}$ description of the land, the land was one and same land, to wit, land at Ntaraga village, and that there are two places on this hill named Nyamuregyere and Hanturo, and the former was at the top of the hill, while the latter was at the foot of the hill (emphasis mine). While registration would produce more certainty, I find no reason to depart from this description as sufficiently descriptive of the $10$ land in terms of its location. It is also not in contention from the evidence of both the parties that this land was once owned by Tiburisio and Koreta Kazenga, the parents of all the parties, and now deceased.

That said, the testimony of the Appellant in the trial Court departed materially from his claim in the Plaint. In the Plaint, Appellant contended he had been given $15$ the land by his father in 1975, whereas in court his testimony referred to proceedings in another suit decided in 1983, the settlement of which resulted in his ownership of the land.

I find that the learned trial magistrate carefully evaluated the testimony before Court and applied the rules of evidence specifically, **Section 101** of the **Evidence Act, Cap 8** to show that the Appellant failed to discharge the burden of proof of the fact of allegation of ownership under Section 101(1) of the Evidence Act (ibid). This evidence was evaluated by the learned Trial Magistrate at pages 3 and 4 of her judgment.

In the alternative, the appellant denied that his parents owned any land in 25 Hanturo at page 19 of the record of proceedings, which land had been given to the Defendants, at page 4 of the judgment. The Appellant's own testimony contradicted the testimony of Byamugisha Andrew his own witness, PW2, at page

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- 22 of the record who stated that the land was located in Ntaraga cell. Once the $\mathsf{S}$ Appellant denied this fact of ownership, of land which the locus visit proved to be land owned by the estate of his parents, he precluded himself from any claim of ownership, whether by grant, by his father or by right as an offspring of his parents. - The trial magistrate correctly did not have to inquire into distribution under the $10$ Letters of Administration, and indeed the suit was for trespass rather than actions under the grant of Letters of administration. It was also immaterial who had planted the trees on this land. A distribution agreement under the grant of letters of Administration tendered in Court showed that the land had been distributed to - 15

the Respondents. The learned Trial Magistrate admitted and believed the respondents' evidence.

Whereas, the Learned Trial Magistrate may erroneously have stated that the law does not recognize verbal gifts of land to produce certainty of ownership, the definition of "gift" according to Black's Law Dictionary, 6^th Edition (1990) at page **688**, does not include a requirement that a gift be made in writing.

"A gift is voluntary transfer of property to another made gratuitously and without consideration.... Essential requisites of a gift are "capacity of the donor, intention of the donor to make a gift, completed delivery to or for donnée and acceptance of the gift by the donnée."

The requirement that the gift in writing is not anywhere in this definition. 25

That said, at no time, in the proceedings was the Appellant able to satisfy Court from his own testimony that he had ownership of the land or had received a gift

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$\overline{7}$ of the same from his father. I find no reason to interfere with the findings of the $\mathsf{S}$ Trial Magistrate, faced with oral claims on the part of the Appellant and distribution under a grant of Letters of Administration on the part of the Respondents.

It is my finding that having agreed with the Learned Trial Magistrate on the evaluation of evidence.

### Ground 1 must fail.

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Learned Counsel for the Appellant chose to argue grounds 2 and 3 together, I reproduce them below;

2. The learned Trial Magistrate erred in law and fact when after the Appellant [omission unintended] challenged the distribution document concluded that 15 the Suit land formed part of the undistributed estate of the late Kazenga.

3. The learned Trial Magistrate erred in law and when she failed to realise that the Suit land did not form part of the undistributed estate of the late Kazenga.

- With due respect, the learned Trial Magistrate should have noted the fact in the 20 Appellant's testimony at page 19, where he stated that he had sued one of the Defendants and the Administrator General in respect of the same land in the High Court. No evidence of this fact was adduced at the hearing. At this point, the question of multiple suits addressing the same land should have been addressed by this Court under Section 98 of the Civil Procedure Act, Cap 282 to avoid - 25 abuse of Court process. It is not clear from the record, whether proceedings to

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revoke the grant under Section 230 of the Succession Act, Cap 268 or any other $\mathsf{S}$ provision of the law were brought before this Court.

In the absence of an action to revoke the grant of Letters of Administration, it is impossible to challenge the distribution of land under the same grant. The only conclusion is that Grounds 2 and 3, must fail.

# Ground 4: The learned trial magistrate erred in law and fact when she said $10$ that in Uganda, any marriage/gift inter vivos must be reduced in writing.

In my resolution of ground 1, I have already stated that this isn't the correct position of the law. That said, the ground should have been framed correctly, as "erred in law" rather than "erred in law and fact"., to allow quick appreciation and disposal of the issue. I agree with the Appellant that the learned Trial Magistrate erred in law when she stated that in Uganda, any marriage/gift inter vivos must be reduced in writing.

This is the law in Uganda. In Matovu and others v Igga and others HCT-5-CV-**MC17 of 2024**, Nshimye J., at Mbarara High Court stated the law as follows:

The law is that a gift inter vivos takes effect when three conditions are fulfilled, $\mathcal{U}$ 20 that is, there is intention to give the gift, the donor must deliver the property, and the donee must accept the gift."

The customs of the people of Uganda have subsisted for centuries without any requirement for written testimonials of the same, including blood brotherhood, payment of bride price and others.

Ground 4 accordingly succeeds.

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## Ground 5: The learned trial Magistrate erred in law and fact when she $\mathsf{S}$ failed to consider adverse possession and the law of limitation.

With due respect, to the Appellant, this ground is misplaced. This was an action for trespass. The claim in the Plaint is clearly reproduced at the beginning of this judgment. Second, this ground clearly offends the rule against departing from pleadings, which contain the plaintiff's best possible representation of the

- Second, adverse possession is a defence rather than a sword. Adverse possession is a defence in legal disputes where a person who is not the original owner can gain ownership of another person's land by openly using it. Similarly, limitation is also a defence and not a sword. Section 5 of the Limitation Act, Cap 290 - 15 provides that:

claimant's case and his or her entitlement to relief.

"No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or her, if it first accrued to him or her or if it first accrued to some person through whom he or she claims to be that person."

In the instant case, I don't find anywhere in the record, any allusion or deduction that the Respondents, while defending the suit raised limitation to extinguish any land title.

This provision is a codification of the common law doctrine of adverse possession. The proper action for the Appellant would have been applying to the Registrar for $25$ a vesting order under **Section 78** of the **Registration** of **Titles Act**, **Cap 240**.

This ground, too, must fail.

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Ground 6: The learned trial Magistrate erred in law and fact when she declared the defendants' land, to form part of the estate of the late Tiburisio Kazenga.

In my resolution of ground 1, I have already stated that the Appellant failed to establish by clear and convincing evidence that he owned the land. Trespass is a 10 tort. The law is fairly settled in Uganda. In the case of Sheikh Mohammed Lubowa v Kitara Enterprise Civil Appeal No. 4 of 1987, cited by Namanya, J., of the High Court's Land Division in Stephen Mubiru & another v Twaha Semakula alias Smart & Another High Court Civil Suit 1068 of 2020, the Supreme Court highlighted the essential ingredients of trespass to include: 15

- The disputed land <u>must belong</u> to the plaintiff; *emphasis mine*. $(a)$ - The Defendant had entered upon it; $(b)$ - $(c)$ The entry was unlawful and that it was made without permission or that the Defendant had no claim or right or interest in the disputed land.

The law does not provide that an action for trespass could succeed if any of the ingredients absent. Having found the appellant failed to establish ownership of the land, it is irrelevant to make a finding on the other elements.

But suffice it to say, evidence adduced by the Respondents is to the effect that there is an unchallenged distribution of the deceased parents' estate. The inventory of the estate dated on January 17^th, 2014 admitted on September 27^th, 2019 has contents in direct contradiction to the Appellant's claims. These are, at page 1, a distribution to him of a house at Kagunga trading center and a piece of land located at Nyarugaragara Lower; at page 2, two pieces, each of land located

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at Hanturo, the suit land are allocated to Lucia Baryazo Byabayi and Nzera $\mathsf{S}$ Tabwegano Nfundirwe, the Respondents.

Further perusal of the record shows that immediately prior to the institution of the claim, there was a family meeting, and minutes of a family meeting held on January 17, 2014 to distribute estate land were admitted into evidence. These minutes show that the Appellant, Apollo Beyanga was absent without apology. Lastly, in respect of the Appellant's share of the estate, the meeting noted the location of his pieces of land in Kagunga trading center and Nyarugarara Lower were "distinct and had clear boundaries, and since no other beneficiary shared a boundary with him there was no need to draw a detailed map." Emphasis mine. I find no reason to doubt the veracity of this record, especially the fact that the meeting was before a judicial officer, His Worship Mugisha Elias and has the seal of the magistrate's Court.

This ground accordingly must fail.

#### Comment. 20

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It is a possibility that the Appellant has legitimate claims, but he was wrongly suited, asking the court for remedies he is not entitled to as a matter of law. The dispute having arisen from a distribution of estate property should have been an Administration Cause in which Court would review the process leading to the grant, distribution and final inventory of the estate to the beneficiaries under the Succession Act. Notwithstanding my orders, I appeal to the parties for the sake of reconciliation to come together for the sake of peace in the family.

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#### **Judgment and Final Orders by Court:** $\mathsf{S}$

Grounds 1, 2, 3, 5 and 6 fail. Ground 4 succeeds.

As this appeal substantially fails, I award costs to the Respondents in this Court and the Chief Magistrate's Court below.

I so order,

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DOUNDQQUELE

Ssemogerere, Karoli Lwanga. Judge, April 15^th, 2025.