[2012] UGHC 418

## **THE REPUBLIC OF UGANDA**

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

**CA 17/2010**

**KAZINGA FRED**

**NDIHE CHARLES APPELLANTS**

**VERSUS**

#### **BUTANWA FARMERS COOP SOCIETY RESPONDENT**

# **BEFORE HON. JUSTICE MIKE J. CHIBITA**

# **JUDGMENT**

This is an appeal from the judgment and orders of His Worship Moses Lubangula, Magistrate Grade 1, Sembabule, delivered on 22nd April, 2010.

The appellants raised seven grounds of appeal in their memorandum, to wit:-

- 1. That the trial Magistrate erred in law and fact when he failed to conceive that the appellants' father one Semuwemba Zakayo only offered one plot to the Cooperative Society but not the entire kibanja. - 2. The trial Magistrate erred in law and fact when he failed to conceive that the remaining chunk of the kibanja had been given to the children and Flavia Kebirungi in 1996 long before his death in 1998. - 3. The trial Magistrate erred in law and fact when he failed to conceive that the evidence given by the plaintiff/respondent was contradictory.

- 4. The trial Magistrate erred in law and fact when he failed to realize that much as the plaintiff's evidence states the contrary Zakayo Semuwemba was a member of the Cooperative Society. - 5. The trial Magistrate erred in law and fact when he failed to realize that there was no proof of surrender of the land by Zakayo Semuwemba. - 6. The trial Magistrate erred in law and fact when he failed to note that at the time of filing the suit, the defendants were acting as agents of Zakayo Semuwemba and not as Administrators. - 7. The trial Magistrate erred in law and fact when he failed to conceive that the plaintiff was duty registered in 2006 and so Zakayo Semuwemba could not have donated to a non existing entity in 1978.

The brief facts of the case are that the plaintiffs/defendants are the registered proprietors of land comprised in Block 210 Plot 4 land at Lutanwa, Lwebitakuli, Mawogola, Sembabule District.

In November, 2008, the defendants/appellants entered onto the said land and started cutting trees and cultivating thereon without the plaintiffs'/respondents consent.

The plaintiffs/respondents then sued them in the Magistrates court at Sembabule and won whereupon the appellants filed this appeal.

At the hearing, the appellants represented themselves while the respondents were represented by M/S Matovu, Kamugunda and Co. Advocates who filed written submissions.

The 1st appellant who was in court argued the appeal by restating the grounds of appeal without substantiation. He prayed for an expeditious conclusion to the appeal and for costs of the appeal.

Counsel for the appellants, for his part, asked court to dismiss the appeal with costs for lack of merit.

$54$

He contended that the appellants by their own admission cultivated the respondents land knowingly, they failed to prove their father's membership in the Cooperative Society and even if they had, they would have no basis for their claim since they did not follow the established procedure for becoming members of the Society.

I have perused the proceedings of the trial and the judgment of the learned trial Magistrate. Only two issues were framed at the trial:-

- 1. Whether the defendants trespassed into the land of the plaintiff. - 2. What are the appropriate remedies?

In resolving issue number one, the learned trial Magistrate cited article 237 of the Constitution of Uganda, which provides for the land tenure systems in Uganda. He then cited section 5% of the Registration of Titles Act, which provides that a Certificate of title shall be conclusive evidence of ownership of land.

He therefore concluded that since the plaintiffs/respondents were registered proprietors of the land in question then they were the legal and rightful owners of the suit land.

He further referred to section 38 of the Cooperative Societies Act which sets out the procedure for taking over shares of a deceased member.

He then concluded this point by stating that the defendants/appellants had not proved that their father was a member of the Society. Neither could they prove therefore, that they are beneficiaries of those interests.

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The learned trial Magistrate resolved this issue in favour of the plaintiffs/respondents. ^I find that he evaluated the evidence properly and came to the right conclusion.

Having resolved the first issue in favour of the plaintiffs/respondents it was logical that he resolved the second issue in line with their prayers. This was the only logical way to resolve that issue.

^I therefore find that the appeal has no merit and dismiss it with costs.

The judgment and orders of the learned trial Magistrate are hereby upheld.

**Dated at Masaka this 2nd day of April, 2012**

\_\_\_\_\_\_\_\_\_\_\_

JUSTICE MIKE J. CHIBIT^A

JUDGMENT READ AND DELIVERED IN THE PRESENCE OF:-

1. COURT CLERK: HARRIET NALUBEGA

2. APPELLANT: FRED KAZINGA

3 RESPONDENTS: GODFREY KAFUREKA, FRANCIS SSEKIDE, JOHN KABAGAMBE, GEORGE WILLIAM SSEKABITO

BY kKCM-V MIKE. J. CHIBITA | \

JUDGE