[2025] UGHC 489

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

## **CIVIL APPEAL NO. 112 OF 2024**

### **[ARISING FROM CIVIL SUIT NO. 005 OF 2017]**

## **1. JOBERO PAUL**

- **2. KITUTU JOSEPH** - **3. ISENGEDE OKIA NATHAN :::::::::::::::::::::::::::::::::::::::::::: APPELLANTS** - **4. NABAFU AGNES BAZIWE MUKHOBEH**

## **VERSUS**

- **1. KIGE ABDALLAH** - **2. KAKAI DINAH MUKHOBEH ::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. JUSTICE LUBEGA FAROUQ JUDGMENT**

## **1. Introduction**

- 2. Kige Abdallah Plaintiff/1st Respondent instituted Civil Suit No. 005 of 2017 against the defendants/Appellants for general damages for trespass, permanent injunction, vacant possession, declaration that the construction of the structure on the suit land was illegal, mesne profits, punitive and exemplary damages and costs of the suit. - **3. Background** - 4. *The 1st Respondent/Plaintiff's case* - 5. The 1st Respondent's case in the lower court was that the plaintiff is the owner of land situated at Nakaloke, Mbale district measuring approximately 50ft by 100ft having purchased it from Kakai Dinah Mukhobeh who bought the same from the 3rd defendant. He cleared the whole purchase outstanding balance to the former owner of the suit land. In or around January 2017, the 1st and 2nd defendants jointly encroached the plaintiff's land, cut all the trees and started constructing a permanent structure. The destroyed properties were taken by the 1st, 2nd and 3rd defendants jointly and were appropriated to their own use.

- 6. He contended that the 4th defendant illegally instructed the 1st and 2nd defendants to cultivate the suit land and that the defendants have no interest whatsoever in the suit land and that the 1st, 2nd, 3rd and 4th defendants forged a land purchase agreement in respect of the suit land in order to claim interest in the same. - 7. *The Appellants' case* - 8. The Appellants in their amended written statement of defence denied the plaintiff's allegation and contended that the suit land and property was originally owned and held by the 3rd defendant who transferred his interest in the same to the 4th defendant at a monetary consideration of Ugx: 7,200,000/=. That following the acquisition, the 4th defendant assumed and has since then enjoyed undisturbed occupation of the suit land and property utilizing the same for crop farming. - 9. The Appellants contended that the land sale agreement executed between the plaintiff and Kakai Mukhobeh is illegal, null and void abnitio for want and capacity since the said Kakai Dinah Mukhobeh lacked any proprietary interest in the suit land and property. That the plaintiff in connivance with Kakai Dinah Mukhobeth fraudulently executed the said land sale agreement in an attempt to defeat the 4th defendant's interest in the suit land and property. - 10. The 4th Appellant further filed a counter claim for a declaration that the counter claimant is the lawful proprietor of the suit land and property, a declaration that the land sale agreement executed between the counter Respondents on the 10th day of August, 2016 is illegal null and void ab initio, an order for the nullification or revocation of the land sale agreement executed between the counter Respondents on the 10th of August, 2016, a permanent injunction restraining the counter respondent from trespassing upon the suit land and property, general damages for trespass, punitive damages,

costs of the suit and any other relief that the court may deem appropriate.

# **11. Issues for the trial court's determination**

- (a) Who is the rightful owner of the suit land? - (b) Whether the defendants are trespassers on the suit land? - (c) Whether the defendants committed fraud? - (d) Whether there are any remedies available to the parties? - 12. The trial magistrate resolved all the above issues in favour of the Respondent. The Appellants were dissatisfied with that decision hence, this appeal.

# **13. Grounds of appeal**

- (a) The learned trial magistrate erred in law and fact when she failed to give an exhaustive scrutiny of the evidence pertaining the competing interests over the suit land and erroneously decreed the suit land to the 1st Respondent. - (b) The learned trial magistrate erred in law and fact when she failed to properly evaluate the evidence in support of the 4th Appellant's interest in the suit land and property and thus arrived at an erroneous decision. - (c) The learned trial magistrate erred in law and fact when she failed to exhaustively examine the evidence regarding the fraudulent nature of the 1st Respondent's interests and thus arrived at an erroneous decision. - (d) The learned trial magistrate erred in law and fact when she held that the land sale agreement executed between the 3rd and 4th Appellants was null and void ab initio. - (e) The learned trial magistrate erred in law and fact when she awarded the 1st Respondent colossal amounts and general damages and punitive damages and without any evidence in support thereof.

- (f) The learned trial magistrate erred in law and fact when she dismissed the 4th Appellant's counterclaim. - (g) The learned trial magistrate erred in law and fact when she failed to find that the land sale agreements between the counter respondent on the 10th of August was illegal, null and void - (h) The learned trial magistrate erred in law and fact when he failed to give an exhaustive scrutiny and proper evaluation of legal arguments on the court record thus arriving at a wrong decision. - 14. The Appellants prayed that the appeal be allowed, the orders and decision of the trial court be set aside, the 4th Appellant be declared as the lawful proprietor of the suit land and property, the land sale agreement executed between the Respondents on the 10th of August, 2016 be nullified, the Appellants be awarded general and punitive damages, a permanent injunction doth issue restraining the Respondent from trespassing upon the suit land and that the Appellants be awarded costs here and in the court below.

#### **15. Legal Representation**

- 16. Nangulu & Mugoda Advocates represented the Appellants whereas Kob Advocates & Solicitors represented the Respondent. - 17. This appeal proceeded by way of written submissions and all parties complied. The submissions have been considered by this court in this judgment.

#### **18. Duty of the first appellate court.**

19. The duty of this court as a first appellate court is well elaborated in *Fr.* **M. Begumisa & Ors V. E. Tibegana SCCA No. 17 Of 2003** where court held that-

> *"The appellate court has to bear in mind that its duty is to rehear the case and the court must consider the trial before the Judge with such materials as it might have decided to admit. The court must then make up its own mind not disregarding the judgment appealed from but*

*carefully weighing and considering it and not shrinking from over ruling it if on full consideration, the court comes to the conclusion that the judgment is wrong"*

20. The above principle will guide this court in the determination of this judgment.

#### **21. Analysis of court**

- 22. I will determine grounds 1, 2, 3, 4, 7 and 8 together and the other grounds will be resolved separately as below. - **23.** Ground No.1: *The learned trial magistrate erred in law and fact when she failed to give an exhaustive scrutiny of the evidence pertaining the competing interests over the suit land and erroneously decreed the suit land to the 1st Respondent.* - **24.** Ground No.2: *The learned trial magistrate erred in law and fact when she failed to properly evaluate the evidence in support of the 4th Appellant's interest in the suit land and property and thus arrived at an erroneous decision.* - **25.** Ground No.3: *The learned trial magistrate erred in law and fact when she failed to exhaustively examine the evidence regarding the fraudulent nature of the 1st Respondent's interests and thus arrived at an erroneous decision.* - **26.** Ground No.4: *The learned trial magistrate erred in law and fact when she held that the land sale agreement executed between the 3rd and 4th Appellants was null and void ab initio.* - **27.** Ground No.7: *The learned trial magistrate erred in law and fact when she failed to find the land sale agreements between the counter respondent on the 10th of August is illegal, null and void* - **28.** Ground No.8: *The learned trial magistrate erred in law and fact when he failed to give an exhaustive scrutiny and proper evaluation of legal arguments on the court record thus arriving at a wrong decision.*

- 29. I have carefully reviewed the lower court record and I was able to note that although the land in dispute now measures 50ft by 100ft, the claim arise from the bigger piece of land measuring two acres from which the disputed land was divided. - 30. In the lower court, the 1st Respondent claimed that he purchased the suit land measuring 50ft by 100ft from the 2nd Respondent in 2016 at a consideration of Ugx: 5,000,000/=, the 2nd Respondent having purchased the same from the 3rd Appellant in 2009. The 4th Respondent on the other hand, alleged that she purchased the suit land from the 3rd Appellant through her sister the 2nd Respondent. - 31. The Respondents tendered in court Pexh.1 (the sale agreement between the 2nd Respondent and the 1st Respondent), Pexh.4 (the sale agreement between the 3rd Appellant and the 2nd Respondent) and Pexh.3 (the back dated agreement between the 3rd Appellant and the 4th Appellant) among others. - 32. The Appellants on the other hand tendered in court Dexh.2 (an agreement for the sale of the plot dated 18/09/2006), Dexh.3 receipt of Ugx: 13,120,000/= from the 4th Appellant to the 2nd Respondent and Dexh.5 (the backdated agreement between the 3rd Appellant and the 4th Appellant) among others. - 33. DW1 and DW2 testified that prior to the purchase of the 2 acres of land, DW2 approached the 2nd Respondent and informed her about the intentions of DW1 to sale the said land. That the 2nd Respondent contacted her sister (the 4th Appellant), a resident of United Kingdom and informed her about the presence of the land for sale. According to DW2 (the defence secretary), also communicated to the 4th Appellant on phone regarding the availability of the said land for sale. That the 4th Appellant agreed to purchase the land and requested for two weeks to mobilise the funds and transmit it to the 2nd Respondent. To support their evidence, the Appellants tendered in court Dexh.3. Their evidence was further corroborated by DW3 and DW4.

- 34. Given that piece of evidence, one would have reasonably expected DW1 and DW2 to have executed a written purchase agreement for the sale of the two acres, clearly indicating the 4th Appellant as the purchaser. However, no such agreement was produced or tendered in evidence before the court. - 35. What the Appellants tendered in court was instead a backdated agreement which was allegedly executed after a conversation between the 4th Appellant and the 2nd Respondent. The said agreement which was admitted as Dexh.5 was not witnessed by the Chairperson of the area nor was it signed by the 2nd Respondent as the 4th Appellant's agent. - 36. Secondly, the alleged conversation was denied by the 2nd Respondent who testified as PW3. - 37. The original agreement, from which the allegedly backdated agreement is said to have arisen, was never tendered in court. Consequently, the Appellant's claims were solely based on the backdated agreement. - 38. It is important to note that the act of backdating the agreement was illegal and amounted to fraud. The issue of fraud was thoroughly addressed by the trial magistrate, and I do not find it necessary to revisit it here. - 39. Unlike the Appellants, who relied on a backdated document, the 1st Respondent relied on a valid purchase agreement between the 2nd Respondent and the 3rd Appellant, dated 13th May 2009, which was admitted as PExh.4. In his testimony, the 3rd Appellant confirmed that it was the 2nd Respondent who paid him for the purchase of the two acres, and that a written agreement was executed to that effect.

- 40. I have had a benefit to peruse the said agreement and noted that it was witnessed by the LC.1 Chairperson, signed by the 3rd Appellant as the vendor and by the 2nd Respondent as the purchaser. The agreement was written on the agreement form of the Local Council of the area. The Chairperson who testified as PW4 confirmed to court that the two acres of land were purchased by the 2nd Respondent in 2009. - 41. The Appellants tendered in court a receipt for UGX 13,000,000/=, allegedly sent by the 4th Appellant to the 2nd Respondent as payment for the purchase of the land. However, this claim is inconsistent with the evidence on record, which indicates that the land was purchased for UGX 7,000,000/=, not UGX 13,000,000/= as claimed by the 4th Appellant. - 42. Secondly, the said land as per Pexh.4 was purchased in 2009 and not in 2007 when the money was transmitted. - 43. The standard of proof in civil cases is on the balance of probabilities and the burden of proof is on that person who alleges the existence of a fact. (See: sections 101 and 103 of the Evidence Act Cap 8.). - 44. In **Okonkwo V. Ezeonu & Ors Per Bolaji Yusuf JCA Pg.7 at Para C-F,** it was stated that-

*"The Law is settled that the onus is on the plaintiff to prove his case with cogent and credible evidence. Where a defendant fails to file a defence or lead evidence to rebut or challenge the evidence led by the plaintiff, the onus on the plaintiff is discharged on a minimal proof…"*

- 45. In this case, the 1st Respondent called witnesses and also tendered in court documents to support his claim unlike the Appellants. - 46. The Appellants further alleged the agreement between the 2nd Respondent and the 3rd Appellant to be a forgery but failed to prove that allegation in the presence of the strong evidence which was put forward by the 1st Respondent.

- 47. To support the legality of Pexh.4, the 1st Respondent called PW2, PW3 and PW4 who were present when the alleged agreement was written. - 48. Therefore, in absence of the original agreement from which the backdated agreement arise, the Appellants failed to prove that the two acres were purchased by the 4th Appellant. - 49. In **Legal Brains Trust Limited V. Attorney General of the Republic of Uganda EACJ Appeal No.4 of 2012**, it was stated that-

*"Hypothetical, academic, abstract, conjectural and speculative should not be entertained by court…. the reason for this doctrine is to avoid the hollow and futile scenario of a court engaging its efforts in applying a specific law to a set of mere speculative facts"*

50. The above principle was reiterated in **Victor Isonguyo V. State (2023) 3 NWLR (PT. 1872) 519,** where the Supreme Court of Nigeria held that-

> *"a court should not decide a case on mere conjecture or speculation. Court of laws are courts of facts and law. They decide issues on facts established before them and on law. They must avoid speculation, no matter how close what it relies on may seem to be the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the court. Inference is a reasonable deduction from facts. Whereas speculation is a mere variant of imaginative guess which, even when it appears plausible should never be allowed by a court of law to feel any hiatus in the evidence before it."*

51. Therefore, the mere fact that there was a conversation between the 2nd Respondent, DW2 and the 4th Appellant regarding the purchase of the two acres of land in 2007 without more, the Appellants' evidence remained merely speculative.

- 52. No evidence was led to prove that in 2009, the 2nd Respondent could not afford purchasing the alleged land. - 53. Grounds No. 1, 2, 3, 4, 7 and 8 are answered in the negative. - 54. Ground No.5: *The learned trial magistrate erred in law and fact when she awarded the 1st Respondent colossal amounts and general damages and punitive damages and without any evidence in support thereof.* - 55. In **Principles Governing the Award of Damages, Justice Bart Katureebe (CJ Emeritus)** stated that-

*"Damages are, in their fundamental character, compensatory, not punishment. Whether the matter complained of is a breach of contract or tort, the primary function of damages is to place the plaintiff in as a good position, so far as money can do it, as if the matter complained of had not occurred…. damages are usually measured by the material loss suffered by the plaintiffs. As a general rule, the plaintiff must not receive more, nor should he receive less than the appropriate measure of damages commensurate with his material loss."*

- 56. The position of the law is that general damages are awarded at the discretion of the court and the purpose is to restore the aggrieved person in the position they would have been in, had the breach or wrong not have occurred. - 57. The 1st Respondent contended that he purchased the suit land in 2016 and he took immediate possession of the same and started using it for agriculture. However, in 2017, the Appellants without any colour of right entered the suit land and cut all the trees and started constructing a permanent house thereon. - 58. He testified that he suffered great loss and suffering by virtue of the fact that he demanded for the Appellants to cease from their actions of trespass to land but refused.

- 59. In light of the above evidence, it is evident that the 1st Respondent was utilizing the suit land for agricultural purposes. Accordingly, I find the general and punitive damages awarded by the trial court to be excessive and hereby revise them as follows: general damages are reduced from UGX 10,000,000/= to UGX 3,000,000/=, and punitive damages are reduced from UGX 5,000,000/= to UGX 2,000,000/=. - 60. With the above, Ground No. 5 is answered in the affirmative. - 61. Ground No.6: *The learned trial magistrate erred in law and fact when she dismissed the 4th Appellant's counterclaim.* - 62. Following my analysis and finding under Grounds No.1, 2, 3, 4, 7 and 8, this ground automatically fails. - 63. Consequently, this appeal partially succeeds in the terms below- - (a) The judgment and orders of the lower court are upheld save for the following; - (i) The general damages are reduced to Ugx: 3,000,000/= (Three Million Shillings) - (ii) The punitive damages are reduced to Ugx: 2,000,000/= (Two Million Shillings) - (b) The Respondents are awarded 50% of the costs of this appeal.

I so order.

**………………………………….. LUBEGA FAROUQ Ag. JUDGE**

*Judgment delivered via the emails of the Advocates of the parties on the 8th of July, 2025.*