[2023] UGHCLD 289

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CIVIL APPEAL NO. 001 OF 2016

(Arising from Civil Suit No. 036 of 2010 of the Chief Magistrates Court of Jinja at Jinja)

#### KAFEERO HENRY

APPELLANT $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

#### **VERSUS**

**BABU ISMAIL**

alias KANYAMA

$\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\\$

RESPONDENT

# **BEFORE: THE HON JUSTICE MICHAEL ELUBU JUDGMENT**

The Appellant lodged this appeal against the Judgement and Orders of H/W **Egessa Wilberforce Masaaka, Grade I Magistrate, Jinja.**

## **Background**

**Kafeero Henry,** the Appellant (who was the Plaintiff in the lower Court), filed Civil Suit No. 36 of 2010 against **Babu Ismail alias Kanyama**, the Respondent (who was the Defendant in the lower Court). The Appellant's claim against the Respondent was for a declaration that he is the sole owner of a piece of land situated at Rubaga village, Rubaga Parish, Mpumudde Division in Jinja Municipality.

In his plaint, the Appellant pleaded that his cause action was that the suit land was originally the property of one Djibril Kiguli, the son of one late Dawda Bossa. That on the 5^th of January 2010, Djibril Kiguli sold part of the suit land, measuring 50ft X 100ft,

to the appellant. The agreed purchase price was Ugx $10,000,000/$ =. That in the month of June 2010, the Appellant discovered that the Defendant had wrongfully entered upon the land and constructed a pit latrine thereon. The Appellant protested to the area Local Council I Chairperson who instructed the Respondent to stop trespassing on the Appellant's land, but the Respondent ignored the Order. Then in the month of September 2010, the Respondent constructed a hall on the land. It was the appellant's contention the Respondent's acts amount to trespass.

The appellant called four witnesses namely, DDjibril Kiguli, Dauda Bbosa, Yosam Mwanje and Himself.

The appellant's evidence was that the Respondent was his neighbour at Rubaga village, Mpumudde Parish, Mpumudde Division in Jinja Municipality. That on the 5^th of January 2010, the Appellant purchased a plot of land from one DDjibril Kiguli. Its dimensions are 50ft in width by 100ft in length. The neighbours on the different sides are the market for the veterans in the East, Butembe road to the West, the North is one Basoga and to the South was the Respondent Babu Ismail.

That a portion of the land originally belonged to Djibril Kiguli's step father while another part was purchased from the family of the late Semukaya. Kiguli gave the Appellant the original copy of his purchase agreement with the family of the late Semukaya.

In 2010, when the Appellant wanted to fence off the land, he found the appellant had constructed a pit latrine on it. That the Appellant inquired from the Respondent through the LC I Chairperson but the Respondent retorted that the land was sold to him by the same DDjibril Kiguli.

Kiguli informed the Appellant that he had indeed sold land to the Respondent, but it was a different portion, the one on which the Respondent had a video hall. There was about 20ft between the Respondent's video hall and where the latrine was constructed. That Kiguli indeed sold the Respondent a piece of land but that the Respondent decided to vacate that piece and enter another altogether. Kiguli had divided his plot and sold

one side to the Respondent at UgX 4,000,000/-. He then sold the other side to the Appellant, at UgX 10,000,000/-, in 2010, but did not take measurements of its dimensions. The Plot sold to the Respondent is Plot 4 Butembe Road, the one where the Respondent's video hall is located.

The purchase agreement was drafted by Yosam Mwanje who was also the Chairman LC I. The same Mwanje drafted the sale agreement between the Respondent and the and DDjibril Kiguli.

That the was a mango tree that marked the separation between the appellant's and the Respondent's land. The appellant did not occupy the land immediately after the purchase. The respondent, on the other hand, lives on the land.

That the Semukaya family, which had originally sold part of the land to Kiguli, instructed the Respondent not to construct on the land. That when Kiguli inquired from Mrs Semukaya she told him to pay her another UgX 1,000,000 for the land. This happened after the Respondent stated he was not interested in that portion anymore and wanted the other.

In his Amended Written Statement of Defence, the Respondent argued that the Appellant's suit was bad in law because it did not disclose a cause of action. That Djibril Kiguli purchased the suit land from Justine Nabasirye, the widow of Semukaya, as per agreement concluded on 13^th January 2009. That the Respondent thereafter purchased the suit land from Djibril Kiguli as per sale concluded on the 24^th March 2009. The Respondent therefore doubted the authenticity of the sale agreement presented by the Appellant saying that it was obtained fraudulently. That he is not a trespasser because he acquired the land lawfully.

The Respondent called two witnesses: Sheikh Kapata Issa and himself. They stated that Respondent has been a resident of the area since 2001. He earns a living by showing films at Mailo Mbili. That he first rented the premises from the widow, Nabisirye Semukaya, in 2004. That the Appellant has never been his neighbour. The respondent lives on the land.

The Respondent purchased his plot of land on 24^th of March 2009 from Djibril Kiguli who had also purchased the same from the widow of Semukaya. They were originally two plots which were joined to make one. That Kiguli did not complete the payment of the purchase price and wanted the Respondent to step in. Kiguli did not have the 2,500,000/- outstanding and approached the Respondent, since the Respondent was the one renting the land from Nabisirye, to purchase the land. Kiguli had only paid UgX 1,000,000/-. They agreed to a purchase price of Ugx. 4,000,000/-. The Respondent did not pay in cash as Kiguli had accepted to take payments in instalments. That Djibril had only made part payment of Ugx. 1m but failed to pay Ugx. 1,500,000/-. Whatever the Respondent paid to Kiguli is what he would take to the widow. That on the day when the last instalment was paid, they sat as the Local Council in the village and resolved the issues. Then Kiguli gave the Respondent all the original agreements he had used in his previous purchase.

That the respondent came to know the appellant when the chairman called a meeting over the land.

This was in the year 2010. That it was resolved that Kiguli, as the person who sold the suit land to two different people, should compensate the appellant to whom he sold the land later, considering the Respondent was the first to settle on the suit land.

The court visited the locus where several witnesses including those who had not testified in Court gave evidence.

Thereafter Judgment was entered for the respondent in the following terms: the suit was dismissed with costs and a declaration issued that the suit land belonged to the Defendant (Respondent). He was also awarded general damages of UgX 5,000,000/= which attracted an Interest.

$\overline{4}$

The appellant being dissatisfied with the orders filed this appeal with the following grounds:

- 1. The Learned Trial Magistrate erred in law and in fact to hold that the Plaintiff/Appellant bought "air" from one Djibril Kiguli and that the Plaintiff/Appellant got no title to the suit land, when there was overwhelming evidence to the contrary. - 2. The Learned Trial Magistrate failed to properly evaluate the evidence before him and arrived at a wrong decision. - 3. The Learned Trial Magistrate erred in law and fact to make a declaration that the suit land was property of the Defendant/Respondent in absence of a counterclaim in those terms. - 4. The Learned Trial Magistrate erred in law and in fact to award General Damages in the sum of UgX 5,000,000/= when they were not properly pleaded by way of counterclaim and when no evidence was adduced to prove the same.

## **Submissions**

The Parties were granted leave to file written submissions and the same are on court record and will not be reproduced here. I have however closely considered them in determining this matter.

#### Grounds $1 & 2$

The Learned Trial Magistrate erred in law and in fact to hold that the Plaintiff/Appellant bought "air" from one Djibril Kiguli and that the Plaintiff/Appellant got no title to the suit land, when there was overwhelming evidence to the contrary.

The Learned Trial Magistrate failed to properly evaluate the evidence before him and arrived at a wrong decision.

The parties argued Grounds 1 & 2 together.

It was submitted for the Appellant that the Trial Magistrate did not properly evaluate the evidence on record. That the portions the Appellant and the Respondent purchased from PW2 are different. That the plot purchased by the Appellant measures 50ft by 100ft. That there was a mango tree between the Appellant's plot and that of the Respondent. This tree was the boundary but the Respondent cut it down and then crossed to his side and built on the Appellant's plot of land.

That the Trial Magistrate was therefore wrong to hold that PW2 passed no valid title to the Appellant. Further, that it was wrong for the Trial Magistrate to hold that PW2 sold 'air' to the Appellant.

Thirdly, that the Trial Magistrate seems to have been swayed more by what was said at the locus as opposed to the evidence adduced in Court.

That regarding the Trial Court's holding that the Appellant did not have possession of the suit land and could not therefore maintain an action of trespass, it was submitted for the Appellant that it is not only a person in actual possession of land that can maintain an action of trespass. That a person entitled to possession can also sue for trespass. That the Appellant as a purchaser, was entitled to possession of the suit land and on that basis could maintain the action of trespass. That in any case, the Appellant's claim was not

only founded on trespass, but the Appellant also sought an Order or Declaration that the suit land is his property. Therefore, the Trial Magistrate did not properly evaluate the evidence on record.

The Respondent opposed these submissions. It was his contention was that the Trial Magistrate properly evaluated the evidence on record, and arrived at the right decision. That the Appellant (plaintiff) did not get title to the suit land. And that the seller Kiguli sold him 'air'.

That it was proper for the Trial Magistrate to observe that there was only one plot of land, which Kiguli sold to the Respondent (Defendant), who then occupied and developed it.

As for the locus in quo, it was submitted that the Trial Magistrate used it to cross check the evidence adduced at the Trial. That in any case, all witnesses who testified at the locus were cross examined by the Appellant's Counsel. These witnesses were not considered to be witnesses for either party.

Further, that the Respondent cannot be said to have trespassed on his own land lawfully purchased and which he immediately took possession of. That in a case of trespass, the Plaintiff must prove possession and not ownership.

It was submitted in Rejoinder for the Appellant that, a party entitled to possession can institute an action in trespass.

## Determination.

As this is a first appellate court it is enjoined by law to subject the evidence to a fresh scrutiny and, on a balance of probability, come to its own conclusions based on the law and evidence (see Uganda Breweries Ltd vs. Uganda Railways Corporation SCCA $6/2001$ ).

In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions. I will deal first with the locus in quo visit. The record shows that when the court was at the site, the two parties testified. Thereafter a number of other persons were called to give evidence. These were Kisola Magidu, Kooza Muhamed, Namwandu Semukaya Justine and Mayanja Abdu. None of these people had been called as witnesses in Court. The law on locus in quo visits was well stated in **Ononge vs Okallang (1986) HCB 63** where it was held that the purpose of the visit is not to call fresh witnesses unless this has been requested or intimated in advance. The purpose is for the parties who have already testified in court to clarify what they were stating in court and to indicate boundary features such as boundary marks, if any, to the court.

In a similar holding made in Acar vs. Acar (1982) HCB 61 In Acar Vs Acar (1982) HCB 60 it was held that when the Court deems it necessary to visit the locus in quo then both parties, their witnesses must be told to be there. When they are at the locus it is not a public meeting where public opinion is sought as it was in this case. It is a Court sitting at the locus in quo. In fact, the purpose of the locus in quo is for witnesses to clarify what they stated in Court. So when a witness is called to clarify what they stated in Court they must do so on oath.

Clearly it is only in exceptional circumstances that witnesses who have not testified in court are called to give evidence. Secondly, where that happens, even then all evidence must be oath.

In this case, the court heard a new set of witnesses. No basis was laid for these witnesses to testify. Secondly, this new set of people do not appear to have taken oath. In these two circumstances, the court cannot therefore accept their evidence.

That however should not affect the court's own observations including its sketch of the land. In sum the court rejects the testimony of the new witnesses but retains the evidence of the Courts observations

That however did not vitiate the entire trial. This court will now consider the remaining evidence, as it is empowered to do by S.166 of The Evidence.

The Appellant's claim against the Respondent was for a Declaration that the Appellant is the sole owner of the contentious piece of land situated at Rubaga village, Rubaga Parish, Mpumudde Division in Jinja Municipality and that the Defendant is a trespasser in the said piece of land.

Trespass to land occurs when a person directly enters upon land in possession of another without permission and remains upon the land, places or projects any object upon the land (see *Salmond and Heuston on the Law of Torts*, 19^th edition (London: Sweet & Maxwell, [1987] 46). A plaintiff may bring an action for trespass to land if he or she has exclusive possession of that land. The Court is not concerned with ownership but possession. Exclusive possession is possession of land to the exclusion of the others. The owner of property has a legal right to exclusive possession, unless she or he has leased it to a tenant. In the absence of any other person having lawful possession, the legal possession is vested in the holder of a certificate of title to the land. (See Justine E. M. N. Lutaaya v Sterling Civil Engineering Co. SCCA No.11 of $2002).$

As can be seen by the decision above, the emphasis in trespass is placed on possession. In this case, the appellant has been dispossessed by the respondent and wants to reclaim that possession and assert his ownership. In fact, the appellant's prayer was for a declaration that he was the sole owner of the suit land.

In looking at actions to reclaim possessory title it was held in Odyek Alex & Anor V Gena Yokonani & Ors Civil Appeal No. 9 Of 2017:

the claim is essentially in the nature of an out-of-possession claimant asserting his or her title or ownership i.e., proprietary title, as distinct from possessory rights. In essence, an action for recovery of land is founded on a special form of trespass based upon a wrongful dispossession. It is the mode by which conflicting claims to title, as well as possession, are adjudicated. Any person wrongfully dispossessed of land could sue for the specific restitution of that land in an action

of ejectment. An action for the recovery of land is the modern equivalent of the old action of ejectment (see Bramwell v. Bramwell, [1942] 1 K. B. 370). It is action by which a person not in possession of land can recover both possession and title from the person in possession if he or she can prove his or her title.

Therefore, although the Appellant pleaded trespass in his plaint, his claim was an action for recovery of land. The lower court had to determine who of the two conflicting parties had superior title.

Being an action for recovery of land, the Appellant bore the burden to prove that he had a better title to the suit land than the Respondent. It is provided in Section 110 of **The Evidence Act** that when the question is whether any person is owner of anything of which he is in possession, the burden of proving that he is not the owner is on the person who affirms that he or she is not the owner. In this instant case that burden falls on the appellant.

The Respondent appears to have been first in time to take possession of the land. He originally occupied as a tenant from the widow of Semukaya before he purchased a portion. Later, on the 24^th of March 2009, he bought another portion from Kiguli which he added to the piece already owned by him. Indeed, the respondent stated that the appellant had never been his neighbour. And that he had been in possession of the whole piece at all times.

When the appellant or his neighbours attempted to describe the land each gave a divergent set of persons as neighbours. That contradiction makes it impossible to identify the exact plot owned by the appellant and allegedly grabbed by the Respondent. The appellant stated that the neighbours were the veterans market in the East, Butembe Road to the West, the North is one Basoga and to the south was the Respondent Babu Ismail.

Kiguli who sold the land to the appellant outlined the neighbours as Butembe road to the North, to the south was the veterans market, to the East was the Respondent and the West the late Ssemukaya.

Looking at the site map of the land drawn by the learned trial magistrate, there is no demarcation shown as a boundary. There was no sign of the mango tree the appellant said showed the demarcation between him and the respondent. The appellant had said the respondent had moved from this portion and taken or entered upon the land. This is not borne out by the map which shows one piece of land.

The above lends credence to the finding of the trial magistrate that the Kiguli sold the same piece of land twice. That, as stated by PW 4, he attempted to pay off the respondent to leave the land for Appellant which offer was rejected by the Respondent. It is established that by the time the appellant made his purchase the respondent was in actual possession having purchased from the same Kiguli.

From the above, the Appellant failed to prove, on a balance of probabilities, that he had a better title over the Respondent to the suit land.

In the result, these two grounds of appeal fail.

## Grounds 3 & 4

The Learned Trial Magistrate erred in law and fact to make a declaration that the suit land was a property of the Defendant/Respondent in absence of a counterclaim in those terms.

The Learned Trial Magistrate erred in law and in fact to award General Damages in the sum of UgX 5,000,000/- when they were not properly pleaded by way of counterclaim and when no evidence was adduced to prove the same.

It was submitted for the Appellant was that the Respondent's Written Statement of Defence did not contain a Counterclaim but only prayers for General Damages for inconveniences. That without a Counterclaim, the prayers made by the Respondent in his Written Statement of Defence could not be sustained.

That it was erroneous for the Trial Magistrate to make a Declaration that the suit land belongs to the Respondent and further award the Respondent General Damages without a Counterclaim. That the Trial Magistrate ought to have dismissed the Appellant's suit with costs if the Appellant had not proved his case on a balance of probabilities. The Appellant cited Order 8 Rule 7 of **The Civil Procedure Rules SI 71-1** and the decision in John Nkosi v the Registered Trustees of Busoga Diocese Civil Appeal No. 46 of 2000.

In reply, the Respondent submitted that the award of General Damages is at the discretion of the Court and cited Robert Coussens v AG SCCA No. 8 of 1999 and Prof Gordon Wavamunno v Sekyanzi Sempijia Civil Appeal No. 27 of 2010. That pursuant to Order 8 Rule 4 of the Civil Procedure Rules, it was not necessary to file a Counterclaim for General Damages.

## Determination.

After making an Order dismissing the Appellant's suit with costs, the Trial Magistrate went ahead to make a declaration that the suit land is the property of the Defendant; he then awarded General Damages of Ugx 5,000,000/ $=$ and an order for Interest on the General Damages.

It is argued for the Appellant, that without a Counterclaim against the Appellant, the Trial Magistrate could not properly such orders. I agree with counsel for the Appellant's argument on these two grounds.

## Order 8 Rule 7 of the Civil Procedure Rules SI 71-1 stipulates:

Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he or she shall, in his or her statement of defence, state specifically that he or she does so by way of counterclaim.

In support of these two grounds, John Nkosi v the Registered Trustees of Busoga Diocese Civil Appeal No. 46 of 2000 where it is held that:

In law, a Defendant who alleges that he has any claim or is entitled to any relief or remedy against the Plaintiff which he wishes court to consider without having to bring a separate action makes a counterclaim.

Clearly the Trial Magistrate could not have made an award of general damages and interest to the Respondent, when the Respondent had not filed a Counterclaim against the Appellant. The orders made cannot therefore stand.

In the result, grounds 3 and 4 succeed.

This Appeal succeeds in part with the following orders:

- 1. This Appeal is allowed in part. - 2. The Declaration made by the Trial Magistrate that suit land is the property of the Respondent is confirmed. - 3. The Orders of the Trial Magistrate awarding the Respondent General Damages and Interest are set aside. - 4. The Respondent is awarded costs here and in the court below.

**Michael Elubu** Judge 17.03.2023