[2025] UGHC 304

## **THE REPUBLIC OF UGANDA**

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

## **HCT-17-LD-CA-0004-2022**

# **(ARISING FROM THE CHIEF MAGISTRATE'S COURT OF LUWERO AT NYIMBWA CIVIL SUIT NO.006 OF 2020)**

**KAYONDO JACKSON SSERWADDA………………………………APPELLANT**

#### **VERSUS**

#### **NTEGE YUSUF………………….…………...…………………RESPONDENT**

#### **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

#### **JUDGMENT**

#### Introduction

1. By a memorandum of appeal lodged on 12.10.2022, the appellant Kayondo appealed the judgement of HW Kayaga Salima, magistrate grade one at Nyimbwa delivered on 5.09.2022 on seven grounds to which I will revert later in the judgment. On 15.2.2024, I had dismissed the appeal for non-appearance of the appellant but on perusal of the court record, I found the appellant's submissions that I have carefully considered. The respondent did not file although he attended court on 18.10.2023, 15.2.2024 and 19.2.2024.

#### Background facts

2. By a plaint lodged on 20.8.2020, Kayondo Jackson Sserwadda sued Ntege Yusuf for declarations that the plaintiff is the rightful owner of kibanja measuring two and a half hectares at Bowa LC1 Kagogo Parish, Makulubita subcounty, Luwero district and that the defendant is a trespasser; Additionally, an order for demolition of the illegal structures, compensation for the illegal activities of the defendant, general damages and costs of the suit.

- 3. It was the plaintiffs' claim that in 1997, he purchased the above kibanja from Nabakemba Rosa who is since deceased. In 2002, Ntege in the absence of Kayondo and without his consent trespassed on the said kibanja by erecting illegal structures to wit a house. Kayondo also claimed that he complained to family members and Ntege was advised by the family members to vacate but this was all in vain. He further claimed that the matter was reported to police and Ntege tried to vacate but after (2) two months, he returned with his children without the consent of the plaintiff. Kayondo contends that the kibanja is neither family nor customary property. - 4. Ntege filed a written statement of defense on 7.9.2020 in which he denied the claim. He averred that while Kayondo bought the kibanja, no sale agreement was executed by then. He averred that he agreed with Kayondo to construct a structure on his kibanja which was nearby to their late mother's kibanja in order to monitor her. He further averred that he was given a portion of kibanja now measuring approximately one acre by Nanabakemba Rose, but no agreement was executed then, which he decided to clear. Ntege further averred that he was not removed by the police as alleged by Kayondo, rather, he has more than one wife. Ntege further averred that he only slashed a portion of land where he has ownership interest. - 5. In her judgment, the learned trial magistrate found for the respondent Ntege on the grounds that the plaintiff Kayondo did not adduce documents of ownership of the suit land while Ntege showed that he occupies the suit land on the basis of the fact that he got a gift inter vivos from Nabakemba herself. She then dismissed the suit with costs.

## Consideration of the appeal

- 6. Dissatisfied with the judgment, the appellant Kayondo appealed the decision on the following grounds: - *i. The learned trial magistrate erred in law and fact when she ruled that the defendant is not a trespasser on the suit land.* - *ii. The learned trial magistrate erred in law and fact when she ruled that the agreement for sale of the suit land was not exhibited by the plaintiff whereas it was duly exhibited and marked as PE1.* - *iii. The learned trial magistrate erred in law and fact when she held that the suit land was not bought by the plaintiff whereas not.* - *iv. The learned trial magistrate erred in law and fact when she held valid the defendant's hearsay evidence that he was paying busulu for the suit land but neither did he present any busulu nor bring any witness to prove the same.* - *v. The learned trial magistrate erred in law and fact when she ignored the contradictions of DW2 and DW4 where DW2 stated that the defendant bought the suit kibanja from Nabakemba Rose and DW4 stated that the suit kibanja was given to the defendant as a gist inter vivos by the same Nabakemba.* - *vi. The trial magistrate erred in law and fact when she didn't consider the evidence of the respondent where he stated that the suit kibanja was bought by the four children including the appellant.* - *vii. The learned trial magistrate erred in law and fact when she did not properly evaluate the evidence on the record.*

## Duty of the first appellate court

- 7. It is the duty of this court as a first appellate court to re-evaluate the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny before coming to its own conclusion. - 8.**In Father Narsensio Begumisa and 3 Others v Eric Tibebaga SCCA 17 of 2002; [2004] UGSC 18 (22 June 2004) ulii,** court observed that it is a well-settled

principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although 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 inference and conclusions.

9.**Order 43 rule 1(2)** of the Civil Procedure Rules requires among others, that a ground of appeal should not be argumentative. In the premises, I will collapse all grounds under two main grounds:

#### **Ground one**

The learned trial magistrate erred in law and in fact when she failed to properly evaluate the evidence and thereby arrived at a wrong conclusion

#### **Ground two**

The learned trial magistrate erred in law and in fact when she found that the respondent was not a trespasser.

10. At the trial, the burden of proof was on the appellant Kayondo to prove his case on a balance of probabilities. The standard of proof has been well articulated in **Miller v Minister of Pensions [1947]2ALL ER 372 at 373-374.** Denning J when speaking on the degree of cogency of evidence required to discharge the burden of proof in civil cases had this to say:

> *''That degree is well settled. It must carry a reasonable degree of probability, but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not'*

#### **Ground one**

*The learned trial magistrate erred in law and fact when she did not properly evaluate the evidence on the record.*

- 11. It was not disputed that the parties are siblings along with Sekibule now deceased. According to the appellant Kayondo Jackson Sserwadda PW1, a 43-year-old Christian and farmer, resident of Bowa LC1 Kagogo Parish, Makulubita subcounty, Luwero district, he went to Kirudu on Nabakemba Rosa's kibanja in 1997 where he found Sekibule, his late brother in the land. According to the appellant, one Walakira informed him that Nabakemba sold to him the remaining kibanja upon which he went to her for confirmation. It was Kayondo's testimony that Nabakemba told him she had asked Ntege to give her one hundred thousand Uganda shillings (100,000/=) to save the kibanja but he refused. - 12. It was further Kayondo's testimony that he then approached Ntege with a proposal that the two should give the late Nabakemba one hundred thousand Uganda shillings (100,000/=) so that she could give them the kibanja. The two were given three days within which to pay. According to Kayondo, Ntege did not get the money and so Ntege escorted him to Nabakemba to pay for the suit land. - 13. Kayondo then paid 100,000/= but Nabakemba asked him to add 60,000/= to pay for the kitchen area and toilet, which money he would use to bury her. Serwadda Jackson PW2, a 49-year-old farmer, resident of Bowa also testified that Ntege went with Kayondo to Nabakemba where he paid the 100,000/=. - 14. The trial magistrate raised a red flag as to who was present when Nabakemba sold her kibanja to Kayondo and whether the sale actually happened. She based this on the fact that Kayondo testified that Ntege the defendant was not present when the agreement was drafted but a one Kagyero was present. It is surprising that Ntege who went with Kayondo to Nabakemba to pay the 100,000/= was absent when the agreement of purchase was drafted, moreover Kagyero whom Kayondo

claims to have been present did not testify to confirm his presence when the agreement was being drafted.

- 15. Related to this is that the purported agreement of purchase of the kibanja dated 28.12.1997 between Nabakemba Rosa and Kayondo, PID1 purportedly has a thumb mark of Nabakemba. Kayondo testified in cross examination that Nabakemba asked him to draft it and this in itself is an admission that Nabakemba would be legally categorized as illiterate. - 16.**Section 2** of the **Illiterates Protection Act, cap 288** provides for verification of the illiterate's mark on any document, and that prior to the illiterate appending his or her mark on the document it must be read over and explained to him or her. Furthermore, **Section 3** of the **Illiterates Protection Act (supra)** requires that the document written at the request, on behalf or in the name of any illiterate must bear certification that it fully and correctly represents his or her instructions and was read over and explained to him or her. - 17. The purported agreement of purchase of the kibanja dated 28.12.1997 falls short of the requirements highlighted in the above mandatory provisions of the **Illiterates Protection Act (supra)** and therefore cannot be relied upon by a party who desires court to determine ownership of the kibanja in his favour. To this end, the authenticity of the said agreement cannot be guaranteed and I agree with the trial magistrate that it is highly probable that it was crafted to defeat the interest of the defendant. In the premises, the learned trial magistrate correctly found that the appellant failed to discharge his burden of proof and dismissed his claim. Furthermore, the fact that the alleged purchase took place in 1997 while the dispute commenced in 2020 is a relevant fact that further weakens the appellant's case especially, as Ntege entered possession in 2004 when he built his house. It follows that the learned trial magistrate properly evaluated the evidence and arrived at a correct conclusion. Grounds one of appeal fails.

#### **Ground two**

*The learned trial magistrate erred in law and fact when she ruled that the defendant is not a trespasser on the suit land.*

- 18. It was the evidence of Ntege DW1, that the suit kibanja was bought by the four children, Sekibule and Ndagire having bought the first portion of the kibanja and Ntege and Kayondo having bought the other portion. According to Ntege, the family grazed cows on the suit land in 1996 and it is Kayondo who suggested that they sell coffee and buy the suit kibanja to graze cattle. In 2004, he built his house which was entered in 2005. According to Ntege, in 2007-2008, he planted matooke which was shared with Kayondo who built a store for medicine and it is Ntege's builder who built Kayondo's house in 2014. - 19. The fact that Matovu Abdul DW3, aged 61 years old, a farmer and resident of Kabuga, Makulubita sub-county, Luwero district also testified that he purchased coffee from both Kayondo and Ntege at 100,000/= corroborates Ntege's testimony that the suit land was purchased by both Kayondo and Ntege. - 20. It is further Ntege's testimony in cross-examination that Nabakemba gave him the suit kibanja in 1995 after he looked after her and even died under his care. It was also Nangendo DW4's testimony that Ntege was gifted the suit kibanja by Nakabemba who was impressed with the financial support he rendered to both herself and Ntege's mother Nakato while he worked at Wobulenzi. Ntege also presented receipts of payment of busuulu to Buganda Land Board. All these facts point to the fact that the suit kibanja was utilized by the entire family altogether. I arrive at this conclusion based on Ntege's testimony that Sekibule and Ndagire bought part of Nabakema's land while Ntege and Kayondo bought the other part. - 21. Ntege's case is further strengthened by the lack of police involvement in the dispute which culminated in Ntege vacating the land a fact Ntege flatly denies. I did not see the police reference number and moreover, the un-translated documents

presented by the appellant as proof of alleged consent by Ntege to vacate the land are of no evidential value.

- 22. Having found that Kayondo failed to prove that he bought the suit kibanja, I find that the learned trial magistrate correctly dismissed the appellant's claim that Ntege is a trespasser. This ground of appeal accordingly fails as well. - 23. In the result, I dismiss the appeal and uphold the judgment and orders of the lower court. The appellant Kayondo shall pay the respondent Ntege costs of this appeal and of the lower Court.

## **DATED AT LUWERO THIS 1ST DAY OF APRIL 2025.**

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**LADY JUSTICE HENRIETTA WOLAYO Legal representation** Self –represented litigants