[2024] UGHCLD 296

# ⁵ THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT I{AMPALA ILAND DTVTSTONI HCT-OO-LD-C. A-OO95 0F 2022

#### (ARTSING FROM CHIEF MAGTSTRATE',S COURT OF I{ASANGATI AT I(ASANGATMDE C. S NO. OO41 OF 2OL6l

BUKULU SAMUEL KATUMBA. ................ APPELL4NT VERSUS

CHARLES JEMBA RESPONDENT

#### BEFORE: HON. LADY WSTICE ELIZABETH JANE ALIVIDZA JUDGMENT 15

#### Representation

The Appellant is represented by M/S Mugera Kusaasira & Co. Advocates while the Respondent is represented by M/S Nabukenya

Mulalira & Co Advocates. 20

## Introduction.

This is an Appeal against the decision of His Worship BariSre Said, Magistrate Grade One sitting at Chief Magistrate Court of Kasangati in Civil Suit Number 04 1 of 20 16 delivered on O5th August 2O2 1.

The Plaintiff/Appellant Bukulu was dissatisfied with the decision of the trial Magistrate hence filed this Appeal against znd Deferldarrt f 2nd Respondent on the following grounds; 25

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#### ³⁰ Ground ofAppeal

- 1. The learned trial Magistrate erred in law and fact in holding that the Respondent is a Kibanja holder on the Appellant's land. - 2. The learned trial Magistrate erred in not properly evaluating the evidence of the Appellant's witness and thereby arriving at a wrong conclusion.

The Appellant sought the following declarations that;

- ^a The declarations of the lower Court that the Respondent is a Kibanja holder on the Appellant's land be set aside. - That an order granting the Appellant vacant possession of the suit land be made. a

## Background to the Appeal

In the lower Court, the Plaintiff Bukulu Samuel through his legal Attorney sued Kamukama Ismail and Jjemba Charles respectively for declarations that they had trespassed on part of the Plaintiffs land comprised in Block 113 Plots 44O and 441 land situate at Bumba, Nangabo sub county in Wakiso District, vacant possession, an order for demolition of illegal structures, a permanent injunction, general damages, interest and costs of the suit.

The Plaintiff stated that he was the registered proprietor of both Plots which he bought before 2OO3 as Kibanja from a one Israel Mugambe but the registered interests were purchased from a one Kibirango Mbeyi Festo Salongo [son to the Late Mugambe]. That in 2014,

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Kibirango signed transfer forms for the Plaintiff that enabled him to effect the registration in 2016.

55 That the 1"t Defendant owns the land adjacent to the Plaintiff in Plot 438 but started extending into the Plaintiffs land to the extent that the 1"t Defendants'perimeter wa-ll blocked the road and entrance of the Plaintiffs land.

That the 2"d Defendant/Responent in 2Ol7 also started extending into the Plaintiffs land with a perimeter wall to date and a1l attempts to stop him were futile. That the Plaintiff conducted a survey that showed encroachment from both the Defendants'sides.

He purported that the Defendants have no legal justifications to stay on part of his land and he stated the particulars of trespass which included getting on his land without his consent, continuing to build and maintain a perimeter wall on part of the Plaintiff's land and lasfly refusing to vacate.

The Defendants Iiled a joint written statement of defence in which they first raised a preliminary objection that the suit was prolix, misconceived, frivolous, vexatious, bad in law and was improperly filed which is an abuse of Court process and revea-ls no cause of action.

The Defendants averred that they were good neighbors to the Plaintiff since 2003 and 2O06 respectively as Bibanja holders until the Plaintiff became a registered Mailo owner. That a joint survey between the Plaintiff and the 1"t Defendant was carried out and it

indicated that the latter's portion had been encroached on by about 6 inch.

80 The Defendants contend that they have never trespassed on the Plaintifl's land but rather it's the Plaintiff who wants to fraudulently and stealthily take the Defendants'land. They also averred that in the alternative when they started construction, the Plaintiff was around and the Plots were demarcated with Mpaanyi.

85 That the Plaintiff's transfer forms were forged. That the said survey was the Plaintiffs private undertaking and was done in the absence of the Defendants. That by the time the suit land was sold to the Plaintiff, it was not yet surveyed and he was aware of its actual size so he cannot therefore claim trespass at that moment.

90 That the Plaintiffs title contains a fraudulent description of the exact size of his original Kibanja. They stated the particulars of fraud and stated that the Plaintiff is not entitled to any demolition orders but rather rectification of the Register.

The parties agreed on the following issues for determination.

1. Whether the parties owned distinctive pieces of Bibanja as of 20t6.

2. Whether the Defendants are trespassing on part of the Plaintiffs land comprised in Block 113 Plot 44O and 44 1 located at Bumba.

3. Whether the Plaintiffs acquisition of the suit land was tainted with fraud and illegalities.

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4. What remedies are available to the parties.

The Plaintiff called one witness Bukulu Harriet, the wife and Attorney of the Plaintiff. The Defendants had six witnesses who included the following; DW1 Kibirango Festo Mbeeyi Sa-longo, son of the late Israel Magambe who sold the Kibanja to the Plaintiff in 2003. DW2 Kamukuma Isrea-l, the 1"t Defendant. DW3 Zaake Godfrey Semambo, the area LCI Kiteezr Bumbu. DW4 Daudi Kasuja, the Surveyor who opened boundaries and DWS Jjemba .

110 Court visited locus in quo on l2l12 l2O2O. A11 parties were present and so was the area LCl chairperson. Evidence was taken from Salongo Kibirango who sold land to all the parties and he confirmed that it was the Plaintiff who got the title last and he signed on his transfer and mutation forms.

115 1,20 In his judgement, the trial Magistrate found that the parties owned distinctive pieces of land. That by possession of a certificate title, the Plaintiff is the owner of the suit land leaving the onus on the Defendants who seek to impeach the title to prove fraud to the required standard. The trial Magistrate added that the particulars of fraud adduced by the Defendants had no merit and were dismissed and therefore there was no fraud on the side of the Plaintiff.

Further, the trial Magistrate in determining whether the Defendants were trespassers found that 2"d Defendant fJjemba] had equitable interest in the land he occupies as a Kibanja holder and so he was not a trespasser. Therefore, since the second Defendant wasn't given the first option of buying himself off, his interest was only given to

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the Plaintiff with his consent. That the l"t Defendant remains ^a trespasser only on the 6 feet onto the Plaintiffs land. He ordered the Plaintiff to give the 2"d Defendant quiet possession and that the l"t Defendant to give vacant possession to the Plaintiff.

The Plaintiff/ Appellant being dissatisfied with the trial Magistrate decision filed this Appeal against the 2"d Defendant/Respondent. 130

#### The Role of the Appellate Court.

135 This first Appellate Court is under an obligation to re-hear the case by subjecting the evidence presented to the trial Court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion.

This duty is well explained in Father Nanensio Bequmisa and three Others v. Eric Tiberaea SCCA 17of 2000; [2OO4l KALR 236 as thus;

- 140 145 "It is a uell-settled pinciple that on a first appea| the parties are entitled to obtain from the appeal court its oun decision on issues of fact as well as of lau. Although in a case of conJlicting euidence the appeal court has to make due allouance for the fact that it has neither seen nor heard the witnesses, it must weigh the conJlicting euidence and drana its otan inference and conclusions." - Therefore, in the first Appeal, the parties are entitled to obtain from the Appellate Court its own decision on issues of fact as well as of law See PqldAq!-B [195n EA. 336. It is incumbent on this Court therefore to weigh the conflicting evidence and draw its own

6r - 150 inferences and conclusions in order to come to its own decision on issues of fact as well as of law and remembering to make due allowance for the fact that it has neither seen nor heard the witnesses. - 155 160 The Appellate Court is confined to the evidence on record. Accordingly, the view of the trial court as to where credibility lies is entitled to great weight. However, the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any materia-l feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court.

Right now, this Court is not bound to blindly follow the trial Magistrate's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanor of a witness is inconsistent with the evidence in the case generally. It is on this basis that I will go to resolve the grounds as stipulated by the Appellant.

## Resolution of grounds

t7Q The lower Court found in favour of the Appellant save for issue number two which was decided in favour of the 2"d Defendant/Responden who was declared not to be a trespasser hence this Appeal.

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I will resolve both grounds concurrently since they both revolve around failure of the trial Magistrate to eva-luate the evidence in regards to entitlement of the different pieces of land.

L75 Both Counsel filed written submissions that I have carefully read through the argument and acknowledge Counsels'efforts'

Inorder to distil the truth from the evidence presented, the Court must consider the body of evidence as a whole, as well as evaluate the persuasiveness of each individua-l piece of evidence. Weight should not be assigned unjustly or arbitrarily.

I have taken time to re-read and reeva-luate all evidence that was given in the lower Court. I confirm that the following facts have been proved on a balance of probabilities.

- 185 1. That all the three parties in the lower Court hold distinct pieces of land. - 2. TLLe Plaintiff/Appellant holds a title to Block 113 Plots 44O and 441 land situate Bumba, Nangabo Wakiso District which he first acquired under Kibanja interest in 2003 as per the witness statement of Harriet Bukulu [Appellant's wife and lawful attorneyl . - 3. This land was bought from Israel Mugambe at UGX 2,300,000 and they have been occupying the land since then. - 4. Ten years later, the couple purchased the suit land from Kibiraango Festo, son ald heir to the Late Mugambe and here they acquired registerable interests therein.

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I noted that a copy of certificate of titte was produced in Court and wasn't challenged. It shows that the Appellant was registered in 2016 under instrument number WAKO008044 1. The seller/transferor was Kibirnago Festo as indicated on the title and he signed for the Appellant transfer forms to effect the same.

It is also a fact that in2016 and2OI7, the Plaintiff/Appellant reahzed that both the Defendants were encroaching on his land by construction of perimeter walls respectively.

There is also evidence of a survey conducted. It established that there was encroachment on both sides by both of the Defendants/Respondents. The report indicated that there was a mistake and an omission of 6 inch difference.

- 210 I have read through the survey report and it stipulated that old mark stones were found and used as a reference though some had lost their original positions. That a mistake was made and part of the Kibanja for Mr. Kamukama was omitted during demarcation of his plot i.e plot number 438 and it's from this omission that some of the - 2T\ mark stones on ground were not in the anticipated positions, which anomaly was discovered when Mr Kamukama availed them with copies of his sales agreement. The area of omission had approx. 6 feet difference which was the cause of difference between Kamukama and Bukulu. So these 6 feet were residue between the both of them. - 220 That the piece of land originally belonged to Kamukama as a Kibanja but later left on the residue plot which now belongs to Mr. Bukulu.

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In cross examination, the Plaintiff/Appellant clarified that he was buying title over his initial land. I agreed with the reasoning of the trial Magistrate as to reliable facts. The finding that the disputed suit property is part of the Respondent's Kibanja.

I am persuaded by cogency of the evidence. In his written statement, DW2 Kamukama Israel stated that he purchased the land in 2006 and it was bordering the Appellant on one side measuring 86ft and Festo Kibirango on the other [residue] measuring 63ft. He purchased more 52ft by 33ft from Kibirango's residue.

That Kibirango then signed for him transfer and mutation forms and he cut himself off from the mother title. That in 2016, the Appellant ca-lled informing him that he had acquired a title for his land but the surveyor is showing different demarcations from the original ones and the new ones were passing through Kamukama's compound.

The 1"t Defendant added that there was resistance between the two (Appellant and Respondent until a joint surveyor was brought as earlier stated above, who stated that the part in contention wasn't portrayed on plot 438. That it was left out as residue on the vendor's mother title and was taken up and mistakenly added on the Appellant's title. 240

That residue was on plot 440 which is clearly an access road for all to use. That the surveyor advised them to resolve the issue but instead, the Appellant took the matter to police and the Kamukama was arrested for criminal trespass.

It is also not clear how trespass can suddenly emerge in 2016 on the same portions of land? Nevertheless since I did not hear the case and even visit locus in quo. Therefore my observations as regard this particular point are not helpful.

250 255 What is clear is that all the parties have been in possession peacefully since 2002 and the Appellant even went ahead to demarcate his portion with eucallptus trees. Therefore each of parties was using their portions as before. The change that occurred is that the Appellant had acquired revisionar5r interests over parts of the land occupied by others.

However, my findings are that the trial Magistrate rightly held that the Respondentf 2"d Defendant still owns rights in his Kibanja since he was not even given first priority to buy himself.

260 The Land Act is very clear on the transactions involving Kibanja holdings. Section 36 (3) of Cap 236 is very clear. Revisionary interest first option of sale lies with the tenant in occupancy. It was wrong for the registered proprietor to sell the land to the Appellant without offering it to the 2"d Defendant/Respondent as first option.

I am aware that the lega1 and policy framework in Uganda protects the rights of Kibanja holders.

I accordingly confirm the decision and orders of the lower Court and accordingly dismiss the Appeal.

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Since the parties are neighbors, let each party bear their own costs in this Court and the lower court.

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I so order.


## Elizabeth Jane Alividza

Judge Date $12||2||2024$ .

12/12/2024 Date

Judgement delivered via ECCMIS

Elizabeth Jane Alividza

Date ....................................

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