[2025] UGHC 380

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT LUWERO

# clvlL APPEAL NO. HCT-17-LD-CA-0015-2023

KATUMBA TOM (administrator of the estate of late Erasito Kafeero) APPELLANT

V

### BUSUULWA CHRIZESTOM...... RESPONDENT

# BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT

#### lntroduction

- 1. The appellant Katumba Tom appealed the judgment of Kavuma Mugagga John, magistrate grade one, Luwero Chief Magistrate's Court , on four grounds of appeal reproduced below: - a. The learned magistrate erred in law and in fact when he held that therespondentisabonafideoccupantofthesuitlandcomprised in Bulemezi Block 13 Plot 50, Kyetume' - b. The learned magistrate erred in law and in fact when he reached a verdict without conducting a locus visit' - c. The learned magistrate erred in law when he accepted busuulu receipts as proof of the respondent's occupancy even when the receipts did not relate to the appellant or his predecessors in title. - d. Thelearnedmagistrateerredinlawandinfactwhenhefailedto properly evaluate the evidence and arrived at a wrong conclusion.

#### Preliminarv issue

- 2. ln ground two, the appellant complains that the trial magistrate did not visit the locus and therefore, his judgment is not supported by physical evidencethatcanbeobtainedbyalocusvisit. Counselforthe respondentconcedesthatnolocusvisitwasconductedandpraysfor a re-trial - 3. On perusal of the trial court proceedings, I found an undated meaningless document with the title 'notice at locus visit'. ln this document, the trial magistrate simply documents his findings that the plaintiff is the registered proprietor while the defendant is a kibanja holder'lnotherwords,nolocusvisitwasconducted. Forthese reasons,lexercisedmydiscretionunderOrder43Rule22oflhe civil Procedure Rules and ordered additional evidence on appeal in form of a locus visit to be conducted by HW Atto Franca Okello' lVlagistrate grade one Luwero Chief Magistrate's Court' - 4 This locus visit was conducted on 27.11.2024 in the presence of both partiesandHWAttorecordedherobservationsinareportdated 27.1l.2024. Partiesappearedbeforemeon1l.12.2024andcounsel for the respondent who was in attendance, indicated that she did not wishtomakeadditionalsubmissions. Thereportshowsthatthe appellant was in physical possession of the suit land with a few coffee trees that had been planted by the respondent. There was also a pit latrine for the appellant and a few jack fruit trees'

#### Bac koround facts

- 5. By a plaint lodged on 16.9.2015, Katumba Tom (administrator of the estateofLastoKafeero),suedthedefendantBusulwaChrizestomfor trespass to land. lt was Katumba's case that he is the registered proprietor of Bulemezi Block 13 Plot 50 land at Kyetume Katumba claimedthatonorabout20. S.2ol5,Busulwaenteredhislandand began harvesting and ferrying out sand without authority from Katumba. - 6. ln his written statement of defense, Busulwa denied Katumba's claim and averred that he is a kibanja holder having purchased the kibanja from one Yusuf Luzoza. Furthermore, that he has utilized the kibanja for ten years and that several people claim ownership of the legal interest - 7. After hearing both parties, the trial magistrate found for Busulwa . The gistofthejudgmentofthetrialcourtisthatBusulwaisabonafide occupant having been in possession since 1996. Being dissatisfied with the judgment, Katumba lodged an appeal hence this judgment'

## Duty of the first aPPellate court

8. As the first appellate court, I have a duty to reappraise the evidence adduced in the lower court and arrive at my own conclusions on issues of fact and law bearing in mind the trial court had an opportunity to listen first hand to the witnesses. Narsensio Begumisa and Anor ^v Eric Tibegaga and others SCCA NO' 17 OF 2002(often cited)' The trial court determined two issues:

- a) Whether the defendant has an interest in the suit kibanja - b) Remedies - 9. The trial court as a court of first instance had a duty to evaluate the evidence while bearing in mind that it was the plaintiff who had the legal burden to prove his case on a balance of probabilities while both parties had a burden to prove on a balance of probabilities, existence of facts each relied upon. Section 101 of the Evidence Act Cap'8 ^I now turn to the grounds of aPPeal.

#### Ground one

The learned tial magistrate erred in fact and in law when he held that the respondent is a bona fide occupant of the suit land comprised in Bulemezi Block 13 Plot 50.

#### Ground three

The learned trial magistrate erred in law and in fact when he accepted busulu receipts as proof ofthe respondent's occupancy even when the receipts did not relate to the appeltant or his predecessor in title.

10. lt was not disputed that Katumba the respondent is the registered proprietor of Block 'l 3 Plot 50, measuring 5 acres, land at Kyetume He was registered in Februa ry 2013 as administrator of the estate of late Erasto Kafeero who was the first registered proprietor having been registered in May 1961. A copy of the certificate of title is on record except that what is visible is the month and year of registration. Katumba who testified as PW1 denied knowledge of any kibanja

interest on the suit land. He conceded that at the time he processed letters of administration, he was staying in Kampala and never visited the suit land.

- 11. On the other hand, the respondent's case is that he bought a kibanja on the suit land measuring five acres way back in 1996 from Yozefu Luzooza. An examination of the sale agreement shows that he purchased five acres from Luzooza at 300,000/ The kibanja purchased is described as on the land of Lawulensio Kazibwe without a block and plot number. - 12. Although the respondent affirms that he had used the land since 1996, the locus visit report of HW Franca Atto magistrate grade one shows the appellant is in physical control of the land while a few coffee tree seen during the locus visit belong to the respondent' - 13. From the foregoing analysis, the respondent's claim to the suit land is without evidential basis. The respondent's case is based on very weak and unreliable evidence since Kazibwe, the alleged registered owner, does not feature on the land title. Moreover, the sale agreement does not identify the land by Block and Plot number. Even if the neighbor SempafeaturesontheagreementasindeedheistheneighboraSper locus visit report, this is insufficient to demonstrate that the respondent is a kibanja owner on the suit land. - 14. DW2 Kagwa David Salongo who testified on the respondent's behalf wasoneofthewitnessestotheallegedsaleofthekibanjatothe

I

respondent ,however, his evidence helps the appellant in as far as it confirms that the appellant's family litigated over the land and the appelIant,sfamilygotjudgment. Havingpreviouslysuccessfully litigated over the land, it is not possible that the family lust owned the legal title while someone else had exclusive physical possession of the entire five acres.

- 15. Even if I were to accept that Kagwa was a witness to the sale, the fact that the sale was for a kibanja on land owned by a one Kazibwe means that the respondent made a purchase without the consent of the legal registered owner. Moreover, the existence of a kibanja interest on the suit land is in doubt in view of my finding that the appellant's family had litigated over the land before the current dispute arose and the absence of credible evidence of physical possession by the respondent. - 16. The finding by the learned trial magistrate that the respondent is ^a bona fide occupant in the absence of credible proof of purchase of ^a kibanja on the appellant's land and physical possession, is without factual and legal basis. The few scattered coffee trees is insufficient evidence of possession especially when the respondent claims the entire five acre which constitutes entire the legal interest of the appellant. Evenwithoutthelocusreport,theevidenceadducedbythe appellant is a lot more credible than that of the respondent who allegedlyboughtthekibanjafromoneLuzoozawhichwaslocatedon the land of one Kazibwe, a total stranger to the suit land as he is not the registered proprietor nor has he ever been one'

- 17. I agree with submissions of counsel for the appellant that the respondent is not a bona fide occupant having failed to adduce credible evidence of such status. - 'l 8. Regarding the busulu tickets, the proceedings are silent on any busulu tickets as none were tendered. This means the reference to these unknown tickets by the trial magistrate is tantamount to the judicial officer smuggling into his judgment non-existent evidence' - 1g. ln the premises, lfind thatthe appellant discharged his legal burden of proof that he is the registered owner while the respondent does not have a kibanja interest on the suit land. I find that the trial magistrate erred when he found without evidence, that the respondent is a bona fide occupant. Ground one and three of the appeal succeed'

## Ground four

The learned tiat magistrate erred in law and in fact when he decided the case without visiting the locus in quo.

20. counsel for the respondent conceded this ground and in fact asked this court to declare a mistrial. lnstead I exercised my powers under order 43 Rule 22 of the cPR to order a locus visit which report I have factored in my reappraisal of evidence' This ground of appeal is therefore moot. ln the premises, the appeal is allowed and I make the following orders:

- a. The judgment and orders of the trial court are set aside and substituted with the judgment of this court. - b. The appellant Katumba Tom is declared the rightful owner of the suit land comprised in Block 13 Plot 50, measuring 5 acres, land at Kyetume and is entitled to quiet possession. - c. A declaration shall issue that the respondent Busuulwa Chrizestom has no interest in the suit land. - d. A permanent injunction shall issue restraining the respondent Busulwa Chrizestom and his agents or successors in title from interfering in the quiet possession of the appellant Katumba Tom and from making any further claims to Block 13 Plot 50 land at Kyetume. - e. The respondent Chrizestom Busuulwa shall pay the appellant Katumba Tom costs of this appeal and the trial court'

# DATED AT LUWERO THIS 16TH DAY OF JANUARY 2025.

# LADY JUSTICE HENRIETTA WOLAYO

Le al representation

Kasumba, Kugonza & Co. Advocates for the appellant

Nyote& Co. Advocates for the respondent