[2023] UGHCCD 378

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL APPEAL NO. 44 OF 2019 (Arising from Nabweru Civil Suit No. 138 of 2018) BRARUHANGA SAMUEL MILTON =====================APPELLANT -VERSUS-GUMISIRIZA JOSEPH==============================RESPONDENT**

### **BEFORE: HON. MR. JUSTICE PHILLIP ODOKI**

#### **JUDGMENT**

#### **Introduction:**

[1] This appeal arises from the judgement of the Magistrate Grade 1 of Nabweru Chief Magistrates Court (His Worship Mfituninde George) dated 8th May 2029 wherein he dismissed the Appellant's suit against the Respondent. The Appellant being dissatisfied with the judgement, appealed to this court. The Appellant prayed that the appeal be allowed and his original prayers in the plaint be granted.

#### **Background:**

[2] The Appellant is the father of the Respondent. On the 25th October 2018 the Appellant instituted Civil Suit No. 138 of 2018 against the Respondent before the Chief Magistrates Court of Nabweru in which he pleaded that the Respondent, without his (Appellant's) permission and consent had built a 3 roomed house on his land situated at Nansana West Zone 1, Nansana Munispality, Wakiso District (hereinafter referred to as "the suit land") using bricks and sand belonging to the Appellant. The Appellant further pleaded that the Respondent's house has no toilet and bathroom facilities and his tenants use the toilet and bathroom of the Appellant and litter the compound of the Appellant which amounts to nuisance. The Appellant prayed for orders that, the Respondent be declared a trespasser of the suit land; an eviction order be issued against the Respondent; an order of demolition of the house of the Respondent on the suit land; a permanent injunction to restrain the Respondent from further trespass on the suit land; an order of special damages of Ugx 6,440,000/= being the value bricks and sand of the Appellant; a declaration that the Respondents tenants littering the Appellants compound amount to nuisance; general damages and costs of the suit.

[3] The Respondent denied the allegation of the Appellant. He instead pleaded that the alleged house was built by his mother (Teddy Nyirakamana) who is the wife of the Appellant. The Respondent that he lives in Wamala – taba within Nansana Municipality. He only came back to his home to take care of his sickly mother and to protect her mother against acts of malicious damage to property and domestic violence meted on her by the Appellant.

[4] The plaintiff testified as PW1. He called Betty Amanya (his second wife) who testified as PW2 and her son testified as PW3. The gist of the Appellant's evidence was that the suit land belongs to him, having bought it. The Respondent constructed a 3 roomed house on the suit land using the bricks and sand of the Appellant without his consent. He was stopped by his mother but he refused to comply. The Respondent testified as DW1. He called Nuwamanaya Peace as DW2 and his mother as DW3. Their evidence was that the 3 roomed house was constructed by the mother of the Respondent.

[5] On the 8th May 2029 the Learned Magistrate Grade 1 gave his judgement wherein he dismissed the Appellant's suit against the Respondent. According to the Magistrate Grade 1, the house was built by the mother of the Respondent. The Magistrate Grade 1 also found that the Respondent was not a trespasser on the suit land. The Magistrate Grade 1 stated that it is the Appellant's right to divide his land into 2 equal parts and give to each of his wives a share in a manner that he thinks fit.

[6] On the 15th May 2019 the Appellant filed in this Court a Notice of Appeal and stated that the Memorandum of Appeal would be filed after obtaining certified records of proceedings and judgement. On the 8th December 2021, the Appellant filed a document which he termed as "GROUNDS OF APPEAL". The document states that, the Respondent is still trespassing on the suit land; the eviction order was not issued; the demolition order was not issued; the order for special damages was not given; General damages was not granted; the judgement is unaccepted since the construction was not with his permission; and that the order of the Magistrate Grade 1 that the suit land be divided into 2 equal parts is not consistent with the Appellant's original claim.

[7] The Appellant and the Respondent were not represented both in the lower court and before this court. At the hearing of this appeal, the Appellant only stated that the judgement did not address his legal grievances. The Respondent on the other hand only stated that the appeal was only filed to divert attention form as criminal case between his mother and the Appellant.

## **Consideration and determination of the court:**

[8] I note that since the Appellant was not represented, what he termed as "GROUNDS OF APPEAL" would suffice as a Memorandum of Appeal. Under Order 43 Rule 2 of the Civil Procedure Rules, the Memorandum of Appeal must state the grounds of objection to the decree appealed from. In the instant case, the Appellant has not set out the grounds of objection to the decree or judgement. All he stated is that his prayers were not granted. The failure on his part to state the grounds of objection to the decree appealed from deprives him to receive any adjudication or due consideration on any objection by the Appellant would have wished the court determine. I am however mindful that as a first appellate court, this court has the duty to reconsider all material evidence that was before the trial court and to come to its own conclusion on the evidence. In *Rwabugande Moses versus Uganda, Supreme Court Criminal Appeal No. 25 of 2014* the Supreme Court stated that;

*"It is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on the evidence. In so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. It is only through such re – evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. [Baguma Fred versus Uganda SCCA No. 7 of 2004]"*

[9] The Magistrate Grade 1 was of the view that the issues for the determination of the court were, first, whether the Respondent trespassed on the suit land and secondly, what remedies are available to the parties. Having, examined the pleadings in the lower court, the proper issues for the determination of the court should have been;

- i. Whether the Respondent trespassed on the suit land. - ii. Whether the Respondent committed the tort of nuisance on the suit land. - iii. Whether the Respondent committed the tort of conversion of the Appellants building materials. - iv. What remedies are available to the parties.

[10] On issue 1, the law on trespass is fairly settled. In *Justine E. M. N Lutaya vs Sterling Civil Engineering Company Ltd Civil Appeal No. 11 of 2002***,** at page 6, Mulenga, J. S. C held that;

*"Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land."*

# [11] In *Sheik Muhammed Lubowa versus Kitara Enterprises Ltd, Court of Appeal Civil Appeal No. 4 of 198*, at page 4, Manyindo V-P held that;

*"…it seems clear to me that in order to prove the alleged trespass, it was incumbent on the appellant to prove that the disputed land indeed belonged to him, that the respondent had entered upon that land and that that entry was unlawful in that it was made without his permission or that the respondent had no claim or right or interest in the land."*

[12] In the instant case, it is common ground that the Respondent is a son to the Appellant and the mother of the Respondent is the wife of the Appellant. The suit land is where the mother of the Respondent resides. The plaintiff testified that the Respondent has been on the suit land since 1997. The suit land is clearly the land where the family of the Appellant resides. In my view, any entry by the Respondent cannot amount to trespass since he has an interest on the land as a family member. Although the Appellant testified that the Respondent built a house on his land without his consent, the Respondent denied building the house. He instead testified that the house was built by his mother. The mother of the Respondent testified that she is the one who built the said house. According to her, the Respondent only helped her to oversee the construction. She further testified that it is the Appellant who showed her where to build the house. The evidence of the Appellant that the mother of the Respondent did not have any income to build the house was disproved by the mother of the Appellant who testified that she used to do business and even obtained a loan. She tendered in court her loan statement. The Appellant himself in cross-examination admitted that the mother of the Respondent used to do business. I am therefore convinced that it is the mother of the Respondent who built of the impugned house on the suit land. I therefore find no fault in the finding of the Magistrate Grade 1 that the Respondent did not trespass on the suit land.

[13] On issue 2, a private nuisance is the unlawful interference with a person's use and enjoyment of land or some right over or in connection with it. See: *Hunter versus Canary Wharf [1998]1 WLR 434*. In the instant case, much as the Appellant pleaded that the Respondent's house has no toilet and bathroom facilities and his tenants use the toilet and bathroom of the Appellant and litter the compound of the Appellant which amounts to nuisance, he did not adduce any evidence to support that allegation.

[14] On issue 3, the Appellant testified that the Respondent used his bricks and sand to construct the impugned house. His evidence was supported by the evidence of PW3. The Respondent denied using the building materials of the Appellant. The mother of the Respondent testified that it is the Appellant who allowed her to use those materials. The Appellant did not challenge the evidence of Teddy Nyirakamana regarding her evidence that he is the one who authorized her to use the building materials. I therefore have no reason to disbelieve her evidence. I therefore find that the allegation of conversion by the Respondent was not proved by the Appellant.

[15] On issue 4, given that the Appellant did not prove his case against the Respondent, he is not entitled to the remedies he sought. The trial Magistrate was therefore at no fault when he did not award the Appellant the remedies he sought for.

[16] In the end I find that this appeal has no merit. It is accordingly dismissed with costs to the Respondent.

Iso order.

Dated and delivered by email this 30th June 2023.

**Phillip Odoki JUDGE.**