[2025] UGHC 306

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

## **HCT-17-CV-CA-0001-2022**

# **ARISING FROM LUWERO CHIEF MAGISTRATE'S COURT CASE NO. 176 OF 2016**

**KAREKAHO BYANYIMA VENNIE………………. APPELANT**

**V**

- **1. SEKANJI UMAR** - **2. ASIIMWE JULIET** - **3. MWESIGYE SAMUEL** - **4. LUBINGA IBRAHIM** - **5. MUYAMBI JOHN…………………………. RESPONDENTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

Introduction

1. By a memorandum of appeal filed on 29.9.2022, the appellant appealed the judgment of Principal Magistrate Grade One Isaac Rukundo dated 15.9.2022 on eight grounds of appeal to which I will revert later in this judgment. Both parties filed written submissions that I have carefully considered.

Background facts

2. By an amended plaint filed on 26.12.2016, the plaintiff Karekaho sued the five defendants for trespass. The brief particulars of her claim are that on 20.5.2009, she purchased land comprised in Bulemezi Block 495 Plot 23 measuring 27.3 hectares at Kyagali Kamira sub-county from Batte Sulaiman, the registered proprietor. The plaintiff claimed that the vendor had prior to the sale sub-divided Block 495 Plot 7 to create plots 24 and 25 and the defendants were in occupation of plot 25 except for Sekanji Umar the first defendant who was on plot 23.

- 3. The plaintiff claims that in 2010 but more actively in 2016, the four defendants moved into the suit land and started cultivating crops, grazing animals and have refused to move. - 4. In defense the four defendants denied the claim and averred that they were lawful and bona fide occupants. The first defendant Sekanji Umar averred that he is a lawful and bona fide occupant having purchased the bibanjas from Salongo Kityo and Kalumba Joseph with full knowledge of Batte Sulaiman. - 5. As for the second defendant Asiimwe Julian, she averred that she is a lawful and bona fide occupant having inherited the holding from her uncle late Emmauel Mbyemere who in turn had bought it in 1988 from Yosofati Lwanga. Furthermore, Asiimwe averred that she bought another kibanja on the suit land from Yosofati Lwanga on 7.2.2007. - 6. Regarding the third defendant Mwesigye Samwili, he averred that he is a lawful and bona fide occupant and bought his holdings from Kiwanuka Katoogore and David Kalema. The date of purchased on the sale agreement is 31.12.2014. - 7. The fourth defendant Lubinga Ibrahim averred that he is a lawful and bona fide occupant and bought his holding from Lutwama Michael on 16.2.2007. - 8. The fifth defendant Muyambi John averred that he is a lawful and bona fide occupant having bought his holding from Daudi Kasongovo on 13.10.2015. - 9. Sekanji and Asiimwe (first and second defendants) further averred that they had orally agreed with Batte Sulaiman and the plaintiff that the latter would process titles to bibanjas in return for their surrender of the remaining bibanja holdings but that Batte and the plaintiff reneged on the agreement after they had surrendered portions of their respective bibanjas. After hearing both parties, the learned trial magistrate entered judgment for the defendants in the following terms:

- a. The first to fifth defendants are bona fide occupants on the suit land. - b. The plaintiff bought the suit land subject to the bona fide interests of the defendants. - c. The defendants are not trespassers on the suit land. - 10. Dissatisfied with the judgment, the plaintiff appealed the decision of the trial court hence this judgment.

### Duty of the first appellate court.

- 11. It is an established principle that my duty is to re-appraise the evidence adduced in the trial court and arrive at my own conclusions on issues of fact and law bearing in mind that the trial court had an opportunity to hear the witnesses first hand**. Fr. Narsensio Begumisa and others v Eric Tibegaga Supreme Court Civil Appeal No. 17 of 2002**(often cited) refers. - **12.** In the trial court, the appellant Karekaho had a burden to prove her case on a balance of probabilities while both parties had a duty to prove the existence of facts each alleged to the same standard. **Section 101 and 106 of the Evidence Act Cap. 8** refers**.** - 13. I have carefully examined the record of the trial court and the judgment and the following facts emerge. It is an agreed fact that by a sale agreement dated 20.5.2009, Batte Suula Nkemba sold to Karekaho land comprised in Kyanjaga Block 495 Plot 23 at a consideration of 21,000,000/ which Batte acknowledged he had received. - 14. It is also not in dispute that the appellant took possession except that one David Kasongovu claimed he had a kibanja on Plot 23 which he sold to Muyambi John the fifth respondent. It is an agreed fact that the appellant paid compensation to Kasongovu in 2016, a fact he acknowledges in his witness statement when he

admits to receiving 4,000,000/ for three acres from Karekaho. Kasongovu testified as DW1.

- 15. In defense, Muyambi through his attorney Senkanja Umar confirmed in his witness statement that Kasongovu sold a kibanja on the suit land to Muyambi on 13.10.2015 at a cost of 2,450,000/. - 16. From the foregoing analysis, when Kasongovu purported to sell Muyambi the kibanja in 2015, the sale was void because it was without the authority of the landlady the appellant contrary to **Section 36 of the Land Act Cap. 236** that gives the land owner the first option to purchase. Fortunately, Kasongovu admitted to have resolved the matter when he accepted compensation of 4,000,000/ from the appellant. From the foregoing analysis, the sale was void for non-compliance with the law. - 17. Regarding Sekanji Umar, the first respondent, it was the appellant's case that Batte had earlier agreed to process him a title on the kibanja on his other land comprised in Plot 25 in return for his foregoing the kibanja that extends into plot 23. The deed between Sekanja and Batte is dated 7.10.2010 at page 196 of the record of proceedings. - 18. In defense, Sekanji admits being party to the October 2010 agreement with Batte to compensate him with a title on the part of the kibanja on plot 25. - 19. Regarding the second respondent Asiimwe Julian, Harriet Busulwa PW5 supported the appellant regarding the status of Asiimwe and Sekanji. Busulwa owned a kibanja on Nsubuga's land which neighbours the suit land. According to Busulwa, the bibanja of the two respondents were on Batte's land. She supported the appellant's case in as far as she confirmed that Batte and the two respondents Asiimwe and Sekanji had reached an agreement to get them titles for their bibjanja on Batte's land in return for forfeiture of the bibanja on the land he had sold to the

appellant. Furthermore, that Sekanji and others complained because they never got the promised titles.

- 20. Asiimwe DW3 agreed with the position that Batte was to give her and Sekanji titles on Plot 25 but this did not happen. - 21. It is therefore an agreed fact that Sekanji and Asiimwe owned bibanja on plot 23 that Batte sold to the appellant and that the two had agreed vacate on condition that they are given titles on the bibanja on Plot 25 which is owned by Batte. Their complaint therefore is that Batte breached the agreement to forfeit their interests on Plot 23 for titles on plot 25. - 22. As the appellant was not party to the agreement between Batte and the two respondents, she is not liable to compensate the two especially as they had lost possession in 2009 and only returned in 2016 to reclaim what they believed they had lost. Their remedy lies against Batte's estate and not against the appellant. - 23. I note from the record of the trial court that the only respondents who testified are Sekanji, Asiimwe and Muyambi. The other two respondents Mwesigye Samuel (Respondent No. 3); and Lubinga Ibrahim (respondent No. 4) did not testify in the trial court. As for Lubinga and Mwesigye, the trial magistrate did not enter judgment for them. I therefore find that the learned trial magistrate did not err entering judgment for Muyambi as he participated in the trial through his attorney Sekanji. - 24. Other evidence relevant to the determination if this appeal is a survey report dated 1.8.2022 by field surveyor Mayanja Paul. Worthy of note in this report is that Sekanji claims a kibanja measuring 7.03 acres on the suit land while Asiimwe claims a kibanja measuring 3.0 acres on the suit land. The surveyor also reports that there are coffee and mango trees on the suit land.

- 25. This report contradicts the sketch map drawn by the trial magistrate when he visited the locus on 21. 1.2022. The map clearly shows the boundary between the suit land (plot 23) and Plot 25 which is not under dispute. On the suit land, the trial magistrate records that Asiimwe's and Sekanji's kibanja on the suit land had been taken by the appellant. The magistrate also recorded that Asiimwe and Sekanji own bibanjas on the adjacent plot which is evidently plot 25. Asiimwe has mangoes and other crops in this kibanja. As for Sekanji, the trial magistrate records that he is supposed to get a title for the kibanja on the plot adjacent to the appellant's land. The map also shows Muyambi had a kibanja on the suit land - 26. Evidently, it follows that the surveyor made a general statement that there are mangoes and coffee trees on the land without distinguishing whether these are on plot 25 or 23. Therefore, it is an established fact that Sekanji and Asiimwe are no longer in possession of any portion of land on plot 23. - 27. Before I turn to the grounds of appeal, I agree with counsel for the respondent that the grounds of appeal are argumentative and repetitive. For this reason, I will group grounds that are similar for ease of analysis.

#### **Ground one**

*The learned trial magistrate erred in law and in fact to hold that the appellant bought the suit land Bulemezi Block 495 Plot 23 at Kyajagali subject to the interests of the respondents.*

#### **Ground three**

28. The learned trial magistrate erred in law and in fact to hold that Sekanji and Asiimwe were still bona fide occupants on the suit land after Batte had agreed to compensate them with land titles on Plot 25.

#### **Ground four**

*The learned magistrate erred in law and in fact to subject the appellant to an agreement between Batte and the first and second respondents (Sekanji and Asiimwe) when she was not privy to it.*

#### **Ground six**

*The learned magistrate erred in law and in fact to hold that Muyambi the fifth respondent had a bona fide interest in the suit land.*

- 29. I have re-evaluated the evidence and found that the first and second respondents were lawful occupants on the suit land having been so recognized by Batte Suleman who sold the legal interest to the appellant in 2010. However, I have also found that Sekanji agreed with Batte to forego his kibanja interest on Plot 23 in return for a land title on Plot 25. - 30. In these circumstances, the two respondents are estopped from making any claims to bibanja on the suit land as their remedy lies against Batte's estate and not the appellant**. Section 114 of the Evidence Act Cap.8** provides that where a person by declaration, act or omission permitted another party to believe a thing to be true and the person acted upon it, the person who made the declaration shall not be allowed to deny the truth of that thing. In **Dr. Diana Kazira V Rwanchwende and another( Civil Appeal 81 of 2020) 2023 UGCA 298( 2 November 2023)**, where the respondent had consented to purchase of land in his capacity as an administrator, the Court of Appeal held that the appellant was estopped from denying the legality of the sale. The Court in this case went on to state that estoppel is a legal principle that prevents someone from asserting a right that contradicts what they previously said or agreed to. - 31. The trial magistrate therefore erred when he found that the two respondents continued to own the bibanja on the suit land yet they had ceded possession in

light of the agreement with Batte and only returned later in 2016 to re-claim the bibanja.

32. With regard to Muyambi the fifth respondent, I have found that Muyambi bought the alleged kibanja from Kasongovu in 2015 long after the appellant had acquired the legal interest in the land. Moreover, Kasongovu in his witness admitted to have received 4,000,000/ from the appellant as compensation. Therefore, when he purported to have sold the same kibanja in 2015, such sale was void because he was estopped from denying the agreement between him and the appellant to vacate the suit land. Therefore, the learned magistrate erred in entering judgment for the fifth respondent against the appellant. Grounds one, fou, five and six succeed.

#### **Ground two**

*The learned magistrate erred in law and in fact when, after finding that the third and fourth respondents (Mwesigye and Lubinga) did not have an interest in the suit land, entered judgment for them.*

33. I have read the orders of the learned magistrate and he only entered judgment for Sekanji, Asiimwe and Muyambi. This ground of appeal is misplaced. Ground two fails.

## **Ground seven**

*The learned trial magistrate erred in law and in fact to hold that the plaintiff failed to prove trespass against the respondents.*

34. The police report dated 10.11.2016 attached to the plaint shows that Sekanji complained to the police a case of criminal trespass in 2016 against the appellant under police reference No. L/SD/35/05/07/2016. This report attests to friction between the appellant and respondents. Trespass is the unlawful interference by

an adverse party with the possession and enjoyment of land by the lawful owner. The fact that the appellant purchased the land in 2009 and in 2016, Sekanji and others began making claims and using the land without her consent, is sufficient proof that trespass was proved.

- 35. Having proved that she had bought the suit land in 2009 free of bibabja holders only for them to return later to grow crops and rear animals on it, on a balance of probabilities, the appellant proved trespass against the first and second respondent. Ground seven succeeds. - 36. In the premises, as grounds of appeal have substantially succeeded, the appeal is allowed and I make the following orders: - a) The judgment of the learned magistrate is set aside. - b) The appellant Karekaho Byanyima Vennie is the lawful owner of Bulemezi Block 495 Plot 23 at Kyagali, Kamira Sub-county. - c) The first and second respondent have no holdings or bibanja on Bulemezi Block 495 Plot 23. - d) A permanent injunction shall issue restraining all the respondents or their agents or successors in title from interfering with the appellant Karekaho's quiet possession of Block 495 Plot 23. - e) The two respondents Sekanji and Asiimwe shall pay costs of the appeal and trial court to the appellant.

## **DATED AT LUWERO THIS 20TH DAY OF MARCH 2025.**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO**

Legal representation Elgon Advocates for the appellants Legal Aid Project of the Uganda Law Society for the respondents