[2024] UGHC 1174

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI

# CIVIL APPEAL NO. 27 OF 2023

## (ARISING OUT OF CIVIL SUIT NO. 56 OF 2016)

KIKONYOGO YUNUSU ::::::::::::::::::::::::::::::::::

## **VERSUS**

#### 1. NAMAWUBA FARIDAH

## 2. KALUMBA SAUDI

3. NAKKU NURIAT ::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. JUSTICE OYUKO ANTHONY OJOK**

## **JUDGMENT**

# **Background:**

This is an Appeal arising out of Civil Suit No. 056 of 2016 and Judgment delivered by the Grade One Magistrate Her Worship Mukoya Maureen on the 12^th day of May. 2023 at Mpigi Chief Magistrate's Court.

The Appellant raised three grounds of Appeal for determination by this Honourable Court which are:

- 1) That the Learned Trial Magistrate erred in law and fact when she held that the plaintiffs are the lawful owner of the suit kibanja whereas not. - 2) That the Learned Trial Magistrate erred in law and fact when she held that the appellant/defendant did not adduce any evidence of any transaction where the late Mpanga sold the suit kibanja to the appellant's father Hajji Haruna Lubwama. - 3) That the Learned Trial Magistrate erred in law and fact when she held that the occupancy of appellant/defendants on the suit kibanja was being challenged after the demise of their father.

The Appellant proposed to ask court for the following orders.

a) That the appeal be allowed.

- b) That the Judgment and decree of the Magistrate's Court dated 12^th May 2023 be set aside. - c) Costs of the appeal and the proceedings in the Magistrate's Court be awarded to the appellant.

### **Brief background:**

The Respondents' brought their claim seeking for a declaration that the suit Kibanja measuring 20ft by 100ft belongs to the plaintiffs, an eviction order against the appellant and his late brother from trespassing on the suit property, general Damages and Cost of the suit.

That the Plaintiffs/Respondents brought this suit as administrators of the estate of their late father Sheik Hamdan Mpanga formerly the owner of the Kibanja part of which comprise the suit kibanja. They asserted that their father bought the kibanja around 1953, measuring about 3 acres located at Police centre in Mpigi Town.

The plaintiffs also claimed their father allowed the late Haruna Lubwama, the defendant's father to construct a temporary structure on the kibanja and to occupy the same only until his death. Whereupon the structure would be demolished and the land would be demolished and the land would revert to the plaintiff's father. Accordingly, when Haruna Lubwana died in 1999 the defendant/appellant refused to demolish the temporary structure. The plaintiffs" father repossessed the suit land and later rented it to a one Muhereza Isma, but the defendant has since trespassed on the Kibanja.

On the other hand, the Appellant together with his late brother Ntege contended that the late Haruba Lubwama had bought the kibanja on which they were staying. That their father purchased the said kibanja from the Respondent's father who had built rental rooms from which they are collecting rent and are still in possession of the same to date and thus sought for dismissal of this suit.

#### **Representation:**

The Appellant was represented by Ms. Esther Nalunkuuma while the Respondent Represented by the Robinson Wamani.

Both Counsel filed written submissions.

# **Appellant's Submissions**

Counsel for the Appellant submitted that the Appeal originates from the Judgment and decree of Magistrate Grade One at Mpigi Chief Magistrate's Court.

Counsel further submitted that the duty of this honourable court was well exemplified in Kifamunte Henry Vs Uganda SCCA No. 1 of 1997 where it was held that; "The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate court must then make up its mind not disregarding the judgment appealed from but carefully weighing and considering it".

Counsel also relied on the case of Father Nanensio Begumisa and three Others Vs Eric Tiberaga SCCA 17 of 2000, (2004) KARL 236, the obligation of this court as the first appellate court was explained as follows;

"This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion.

Counsel discussed grounds 1 and 2 of the appeal concurrently

- 1) That the Learned Trial Magistrate erred in law and fact when she held that the plaintiffs are the lawful owner of the suit kibanja whereas not. - 2) That the Learned Trial Magistrate erred in law and fact when she held that the appellant/defendant did not adduce any evidence of any evidence of any transaction where the late Mpanga sold the suit kibanja to the appellant's father

It was in the plaintiff's evidence that the late Mpanga acquired the kibanja in 1953 measuring 3 acres which included the suit kibanja measuring 28ft by 120ft by 21ft by 133ft and that the late Mpanga had sold part of his kibanja upon the latter's request and on condition that upon Haruna's death, the temporary house would be demolished. That after the death of Lubwama, the defendants refused to demolish the temporary house. The plaintiffs further stated that the late Mpanga reported the matter to the local authorities who advised the defendants to give back the suit land to the plaintiff's father.

According to the defendant's evidence, DW1 on page 26 of the record of appeal and page 16 of the record of proceedings, DW1 testified that his father bought the suit kibanja from Sheik Abdul Mpanga (father to the plaintiffs) and stated its boundaries, the plaintiff's father put structures that had existed on the suit kibanja for over 50 years prior to his demise. That later along, the appellant's father bought a legal interest from Badru Lutaaya sold the land as his beneficial share from his late father's estate the late Iddi Lutaaya. That since the appellant's /defendant's father had existed on the suit kibanja for years (over 30 years) with the knowledge of the respondent/plaintiff's father, he later purchased his legal interest from Badru Lutaaya among the surviving children of the late Iddi Lutaaya. The said land sales transaction between Badru Lutaaya and the late Haruna Lubwama was executed in the year 1989 when the plaintiff's father was still alive and he never challenged the purchase of the legal interest by the defendant's father. That throughout the life of the late Mpanga (father to the plaintiffs/respondents0 he never at any time challenged the occupancy of the late Lubwama Haruna (the father to the defendant/appellant).

That the late Badru Lutaaya would not have disposed off the legal interest of the land to the defendant's father if the kibanja never belonged to Haruna Lubwama. The agreement as attached to the defendant's pleadings shows Lutaaya Badru selling the suit land as his beneficial share from his late father's estate to Iddi Lutaaya but not as an administrator. He wouldn't have disposed off the legal interest of land to a kibania holder without confirming that the kibanja was indeed his (the late Lubwama Haruna/father to the appellant/defendant).

Counsel submitted further that in a Will dated 1^st March 1998 by the late Lubwama Haruna the defendant's father appointed the plaintiff's father Mpanga Hamadan as a trustee and in that same will he mentioned all his properties and how the same were

distributed. The suit kibanja was among the properties mentioned in the Will (page 2 of the Will) and at no point did the plaintiff's/respondent's father ever come out to dispute or challenge the Will to have wrongly included his property.

This was because he was on settled grounds that the defendant's father had bought the suit kibanja from him. The defendant's father died in the year 1999 where his children inherited the suit kibanja and stayed in occupation of the same since then, the plaintiff's father later passed on in the year 2012 and even after the demise of the defendant's father he never disputed the ownership/occupancy of the children of Haruna Lubwama (defendants)

PW1's evidence on page 14 of the record of appeal and page 4 of the record of proceedings, it is her testimony that there was and understanding between Mpanga and Hajji Lubwama allowing the latter to stay on that land. This not backed up with any evidence in form of an agreement allowing the appellant's father just to stay on the land. There was no evidence brought in court to prove that the respondent's father had given the appellant's father land to stay on it and the same evidence to show that he was to stay on the land temporarily.

Counsel further submitted that there is a sales agreement where the late Mpanga, father to the respondents/plaintiffs sold part of the land to the late Ntege Ahmed (2^nd defendant). In that agreement he stated that "he has disposed off part of his land from the house belonging to the late Haruna Lubwama to the electricity pole measuring 30ft by 50ft. The document /sales agreement was exhibited and is dated 24^th June 1999 and at that time the late Haruna Lubwama had passed on. He referred to that portion stating the late Haruna Lubwama and not a portion belonging to himself.

The suit land had old houses that have been in existence for over fifty years, this fact was also established at locus that the suit land had two houses. There was temporary structure. The structures cannot be considered temporary since they have existed for over fifty years and these were old houses.

In the evidence of PW3, he stated that he had been rented a portion of the said land, however in cross examination he stated that on page 24 of the record of appeal "he did not know the owner of the land but Ntege was the owner. The portion of land that he rented belonged to Mpanga which portion was completely different from the suit land because this portion of land neighbours both plots for Mpanga and for Lubwama.

PW3, the place he rented did not form part of the suit land. It was completely different from the portion of the suit land. He stated in his evidence that indeed it is Mpanga who rented the portion to him. Both portions, the suit land and that for Mpanga are neighbouring. PW3 stated that there was a portion belonging to Ntege and thus Mpanga had not taken back that portion (suit land) to himself as stated by the plaintiff that upon the demise of Lubwama Mpanga took back the suit land which is false.

The plaintiffs/respondents agree that indeed Mpanga sold to Lubwama and there was no single witness that came out to state that indeed Mpanga had sold what measurements/what portion of land in evidence either by a sale agreement or any documentation to Lubwama. No evidence whatsoever was adduced and brought in court to that effect to prove the portion of land Mpanga had sold to Lubwama and what portion of land was supposed to be taken back to Mpanga upon the demise of Lubwama.

Based on the above submissions, the defendants/children of the late Lubwama Haruna led evidence to prove that their father had initially purchased the suit kibanja from the late Mpanga Hamadan because he wouldn't have purchased the legal interest in the land if he had never acquired the kibanja interest in the 1^st place. The said transaction of purchase of the legal interest was executed in the year 1989 between the late Lubwama Haruna and Iddi Lutaaya which transaction was never challenged by the late Hamadan Mpanga even during the life time of the late Lubwama Haruna. The two co-existed peacefully its only after the death of plaintiff's father that his children/plaintiffs started laying claims that the defendants should vacate the suit kibanja.

#### Ground 3

The learned trial magistrate erred in law and fact when she held that the occupancy of the appellant/defendant on the suit kibanja was being challenged after the demise of their father.

It was in the plaintiff's evidence that the late Mpanga reported the matter to the local authorities who advised the defendants to give back the suit kibanja to the plaintiff's father. Similarly, on page 21 of the record of appeal and page 11 of the record of proceedings, PW2 testified that Hajji Mpanga told the defendants to demolish the temporary structures and reported at the L. C.1. Thus the learned trial magistrate erred in law and fact when she relied on the evidence of PW2 that after the death of Hajji Haruna the plaintiff's father asked the defendants to demolish the temporary house which they refused. As a result, reported the matter to the local authorities who advised the defendants to give back the suit land to the plaintiff's father. The learned trial magistrate failed to agree with the defendants that the appellant occupied the suit land unchallenged.

Further Counsel submitted that the late Hamadan Mpanga never challenged the occupancy of the defendant/appellant as no proof whatsoever was brought that the plaintiff's father challenged/asked the defendants to demolish the temporary houses they had built. No proof was adduced in court that the late Mpanga reported the matter to local authorities who advised the defendants to give back the suit kibanja to the plaintiff's father. The plaintiffs/respondents never attached any judgment from the L. C.1 chairperson and neither a report. They never even produced the chairperson or even a member of his committee to give evidence to that effect. Therefore the assertion that the respondent's father challenged the appellant's occupancy remains an allegation but not proved since the two (the late Mpanga and Lubwama) co-existed peacefully without disputes on the suit land. The late Lubwama would not have made/appointed the late Mpanga the trustee in his will as discussed above if the two had disputes over the said land and would not have mentioned the suit kibanja among his properties in the will.

Counsel concluded that Basing on the above submissions, it is clearly indicated that the late Lubwama passed on in the year 1999, and the late Hamadan Mpanga later passed on in the year 2012, for over 13 years after the demise of the late Lubwama Haruna (father to the defendant) the occupancy of the children of the late Lubwama has never been challenged. Its only after the death of the plaintiff's father that his children now challenge their occupancy and chasing them away from the suit kibania.

The trial magistrate erred in fact and law in holding that the occupancy of the appellant was challenged even after the death of their father since PW1 stated that in the LC1 when the late Mpanga reported to the authorities, the local authorities advised the defendants to vacate but they did not heed to this directive. No evidence whatsoever was brought in court to this effect. Counsel prayed that this ground succeeds.

Basing on the above, Counsel prayed that this appeal be allowed and the judgment plus decree of the Magistrate's Court dated 12^th May 2023 be set aside. Costs of the appeal and the proceedings in the Magistrate's Court be awarded to the Appellant.

#### **Respondent's Submissions**

Counsel for the Respondents objected to ground No. 2 for being too argumentative and a narrative to be ground of appeal and offends the rules/law. Ground of appeal in the High Court are governed and must comply with the provisions of Order 43 Rules 1 (2) of the Civil Procedure Rules which is to the effect that:

"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively".

Counsel relied on the case of Katumba Byaruhanga Vs Edward Kyewalabye Musoke (CACA No. 2 of 1998) where court emphasized that grounds of Appeal which offends the rules of court in as far as how grounds of appeal shall be framed should be struck off. As such ground 2 be struck off for being argumentative and narrative.

Grounds one and two:

1) That the Learned Trial Magistrate erred in law and fact when she held that the plaintiffs are the lawful owner of the suit kibanja whereas not.

2. That the Learned Trial Magistrate erred in law and fact when she held that the appellant/defendant did not adduce any evidence of any evidence of any transaction where the late Mpanga sold the suit kibanja to the appellant's father Hajji Haruna Lubwama.

Counsel Submitted that PW2 who was the widow to the late Sheikh Hamadan Mpanga stated that her late husband owned a kibanja on which they lived. That during his life time, her late husband the late Mpanga had allowed the late Haji Haruna (the defendants' father) to use part of the Kibania on the road side for mechanical works. But instead the defendant's father constructed a block of commercial buildings. That even in the distribution of his property as laid out in the document the defendant's/Appellant's father only bequeathed the commercial building and not the temporary rental houses. That after the demise of the defendant/Appellant's father, the plaintiffs/Respondents rented out the rentals on the suit land to a one Muehereza Isma PW3.

PW3 stated that the Plaintiff's/Respondents' father was her land lord from the year 2011 when he was given spaces to rent a temporary structure for business. That he rented the premises for $5\frac{1}{2}$ (five and a half) years and would be issued receipts. That on 2016, the 2^nd defendant who passed on, brother to the appellant locked PW3's place of work by powering Umeme.

Further the Appellant stated that their late father bough legal interest of the suit kibanja from Badru Lutaaya who was the registered proprietor. In proof of the same, the defendant/Appellant went further ahead and attached a sale agreement which was identified as IDID the said sale agreement was between the defendant's late father and a one Badru Lutaya. During cross-examination all the defendant/Appellant's witnesses contended that their father had purchased his legal interest of the suit kibanja but they did not know the Block Number and Plot Number of the Mailo interest they claim their father had bought. All the defendant's/Appellant's witnesses said that they had no proof that Bardu Lutaya was the administrator of the estate of the late Idi Lutaya the registered proprietor of the land.

Furthermore, that the Appellant in his submissions refers to a will dated 1^st march 1998 that this will is alien to the proceedings and the respondents are not aware of it. That there was no document tendered in court as a will by either party.

Counsel further submitted that the suit kibanja belonged to the late Mpanga the father to the Respondent and the Appellant failed to produce evidence to demonstrate that his late father lawfully acquired the same as such he cannot claim the same. For one to claim ownership of Kibanja and or any property, he or she must demonstrate that it was lawfully acquired which is not the case here.

Further that its false submission for the Appellant to submit by referring to evidence at locus yet the proceedings do not contain evidence at locus. (Refer to page 37 of the Record of Appeal), and neither was the Appellant's Counsel part of the proceedings in the lower court. Any evidence relied upon by the Appellant in his submissions only amounts to adducing evidence from the bar which is a violation of the law. Mayanja Joshua Vs Wasswa and Anor M. A No. 44 of 2016 and also adducing fresh evidence on appeal without leave of Court.

Furthermore that the Appellant submits that at the locus, the structures cannot be considered temporary since they have existed for over 50 (fifty) years and these houses are old.

That there was no evidence adduced to court by the Appellant/Defendants in their written statement of defence, at scheduling, the 4 (four) witness statements and or during trial that there were old houses of about 50 years on the suit Kibanja. In case if they were thereon the pictures of the same would have been tendered in court which was not done

That the Appellant's submissions amount to adducing evidence from the bar **[Muyanja** Joshua Vs Wasswa and Anor supral and departure from pleadings as provided for under Order 6 rule 7 of the Civil Procedure Rules which prohibits departure from pleadings by the parties. See. Painento Semalulu and Nakitto Eva Kasule Civil Appeal No. 004 of 2008, to which we pray court disregards the same.

That all this evidence was properly investigated and evaluated by the trial Magistrate which is on court record and decided the matter in favour of the Respondents. Refer to pages 7 and 8 of the Record of Appeal.

Counsel prayed that Court be pleased to answer grounds one and two in negative and dismiss the Appeal with costs.

## Ground three $(3)$

The learned trial Magistrate erred in law and fact when she held that the occupancy of Appellant/Defendants on the kibanja was being challenged after the demise of their father.

Counsel for the Respondent opposed that the learned trial Magistrate erred in law and fact when she held that the occupancy of Appellant/Defendants on the kibanja was being challenged after the demise of their father. It is clear in the evidence/testimony on court record that the occupancy of the Defendants/Appellants on the suit Kibanja was challenged after the demise of their late father and this evidence has been alluded by the Appellant in his submissions and this evidence was not challenged during trial by the defendants/Appellant.

PW1 in her testimony on page 15 of the Record of Appeal stated the understanding between her late father and the Defendants/Appellant's father (both) was that Lubwama (the defendant's/Appellant's) father works from there as a mechanic, he only worked from there and that he never bought a kibanja.

It was PW1's testimony on page 14 of the Record of Appeal that she had ever complained to the Local Council in 2005, they were both called and a report was made. The Defendants encroached on an area od about 30Ft by 100Ft which is the disputed kibanja. It is also PW2's testimony on page 21 of the Record of Appeal that MPanga reported to let in regard to his dispute, the meeting was convened and she attended, the defendants/Appellant as well attended the same meeting and the case was never concluded.

Furthermore on the same page of the Record of Appeal the last 4 bullets, PW2 testified that Haji Lubwama father to the Appellant before his demise he had told his children (defence witnesses including the Appellant) that the kibanja was not his, told them to demolish the structure but refused, he reported at LC1 and that the case not completed. PW1 and PW2 evidence can be collaborated to arrive to the fact that the occupancy of the Appellant/Defendants on the Kibanja was being challenged after the demise of their father before and after their father's demise.

There is no doubt of the above as the Defendants/Appellant did not contest/challenge the same evidence during trial and the record of court can attest to this. The same cannot be contested now in his submissions that there was no evidence to the same and yet two Plaintiff's witnesses testified of the same, the Appellant/Defendant was part of the matter which was before the Local Council and thus must be the reason why they did not contest the same. It is false for the Appellant to submit that the Appellant occupied the suit Kibanja unchallenged.

The Appellant submitted in his submission that the late Mpanga was appointed by the late Lubwama in his ill as a trustee which will was not adduced as evidence in Court during trial and as such the invisible/alien will cannot be relied upon and more so for a will to be relied upon it must be proved in courts of law by the attesting witnesses. Such only amounts to submitting evidence from the bar.

In response to the Appellant's submissions that since Lubwama died in 1999 and Mpanga 2012, the Appellant's occupancy was not challenged, this is false PW1 clearly testified that in 2005 the late Mpanga reported the encroachment to the LC and that the 2^nd defendant in the main suit/ brother to the Appellant was present.

That the above evidence was not contested by the Defendants/Appellant moreso the $2^nd$ Defendant who was in attendance of the meeting at the L. C.

He further submitted that Trespass is a continuous Tort. See Elizabeth Sylvia Musaazi Vs Bwanika Rose Ciil Appeal No. 42 of 2024 as such even if it was true, which is not that it was 13 years after the demise of the late Lubwama father to the Appellant the occupation of the Appellant was not challenged, this does not debar the Respondents/Plaintiffs from contesting/Challenging Appellant's the illegal occupancy of the Appellants on the suit kibanja.

That the evidence on court Record is clear that the Apellant/Defendant is a trespasser on the suit kibanja as the same belongs to the estate of the late Muhamadan Mpanga whose estate the Respondents/Plaintiffs administers.

## Appellant's submissions in rejoinder

In rejoinder, counsel for the Appellant submitted that the Respondents raised an objection in respect of ground 2 for being too argumentative and a narrative to be a ground of appeal. That ground 2 as per the memorandum of appeal states that;

The learned trial magistrate erred in law and fact when she held that the Appellant/defendant did not adduce any evidence of any transaction where the late Mpanga sold the suit kibanja to the appellant's father Hajji Haruna Lubwama.

Under Order 43 rules 1(2) of the Civil Procedure Rules, it is to the effect that;

"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively".

The above ground of Appeal was precise and concise as required by the law and was in compliance with the requirements of the rules. The words "the Appellant/Defendant did not adduce any evidence of any transaction where the late Mpanga sold the suit Kibanja to the Appellant's father Hajji Haruna Lubwama" do not form a narrative and the same are not argumentative.

Counsel humbly submitted that ground 2 does not offend the provisions of the law and thus should be considered by this honourable Court as a valid ground of appeal.

Counsel went on to submit that the Respondents submitted that the late Mpanga has never given nor sold the suit Kibanja to the Defendant's father however, it is not in dispute that the defendant's father had put structures that had existed for over 50 years prior to his demise. Later, the Appellant's father bought a legal interest from Badru Lutaaya, he disposed off his beneficial share from his late father's estate the late Iddi Lutaaya where he had lived and existed to over 30 years.

That since the Appellant's /Defendant's father had existed on the suit Kibania for years (over 30 years) with the knowledge of the Respondent's/Plaintiff's father, he later purchased his legal interest from Badru Lutaaya who was among the surviving children of the late Iddi Lutaaya. The said Land sales transaction between Badru Lutaaya and the late Haruna Lubwama was executed in the year 1989 when the plaintiff's father was still alive and he never challenged the purchase of the legal interest by the defendant's father. That throughout the life time challenged the occupancy of the late Lubwama Haruna (the father to the defendant/Appellant).

There was no evidence that was brought in the lower court to prove that the purchase of the legal interest by the late Lubwama father to the (defendnats/Appellant) was

challenged by the late Mpanga (father to the Plaintiffs/Respondents) and the defendant's father had existed on the land for a very long period of time.

That when the late Badru Lutaaya was disposing off his share as per the said agreement that was dully tendered and exhibited in Court, he disposed off his beneficial share from his father's estate the late Iddi Lutaaya who was the land lord of the land but he never disposed off the same as an administrator of the said estate. This was evidence was not contested by the Respondents/Plaintiffs during the hearing of the case in the lower court. we invite this honourable Court to carefully read the said agreement. It was never in contention that Badru Lutaaya who disposed off the suit Kibania was never a beneficiary to the estate of the late Iddi Lutaaya.

In the evidence of PW3, he stated that he had been rented a portion of the said land, however in cross-examination he stated that on page 24 of the record of appeal "he did not know the owner of the lad but Ntege (the 2^nd defendant deceased) was the owner. The portion of land that he rented belonged to Mpanga which portion was completely different from the suit land/Kibanja because this portion of land neighbours bot plots for Mpanga and for Lubwama."

The will dated 1^st March 1998 is the same document that the respondents refer to as the distribution document in their submissions. The distribution agreement belongs to the late Lubwama father tot eh appellant/plaintiff. The said document was exhibited and dully tendered in court. In the said document, the late Lubwama Haruna the defendant's father appointed the plaintiff's father Mpanga Hamdan as a trustee and in that same will/distribution agreement he mentioned all his properties and how the same were distributed. The suit Kibanja was among the properties mentioned in the will (page 2 of the will/document) and at no point did the plaintiff's/Respondent's father ever come out to dispute or challenge will/document to have wrongly included his property. This was because it was on settled grounds that the defendant's father had bought the suit Kibanja from him.

Counsel submitted that there was evidence that was brought by the defendant to establish that his late father had purchased the said land from the late Mpanga prior to him purchasing his legal interest since he had stayed on the suit kibanja for a very long period of time and later he purchased legal interest from the late Badru Lutaaya who was a beneficiary to the late Iddi Lutaaya. The Plaintiff's father never at any time did he challenge the occupancy and the purchase of the late Lubwama.

On ground 3 Counsel submitted that there was no evidence whatsoever that was tendered in Court that the plaintiff's father ever at any point challenged the occupancy of the defendant's father. The Respondent's submit that PW1 complained to the local council 1 and the report was made. That PW2 stated that a meeting was convened and the case was never concluded. The Late Hamdan Mpanga never challenged the occupancy of the defendant/appellant as no proof whatsoever was brought that the plaintiff's father challenged/asked the defendants to demolish the temporary houses they had built. No proof was adduced in court that the late Mpanga reported the matter to local authorities who advised the defendant to give back the suit Kibanja to the plaintiff's father. The Plaintiffs/Respondents never attached any judgment from the LC Chairperson and neither a report. They never even produced the chairperson or even a member of his committee to give evidence to that effect. Therefore the assertion that the Respondent's father challenged the Appellant's occupancy remains an allegation but not proved since the two (the late Mpanga and Lubwama) co-existed peacefully without disputes on the suit land. The late Lubwama would not have made/appointed the late Mpanga the trustee in his will as discussed above if the two had disputes over the said land and would not have mentioned the suit Kibanja among his properties in the will. No written evidence and no oral evidence was brought to that effect.

The basis under which the trial Magistrate held that the suit Kibanja never belonged to the defendant's father was because the occupancy of the defendant's father was being challenged by the Plaintiff's father which was false. There was no evidence whatsoever that was brought to that effect.

That the Appellant has demonstrated clearly how he acquired the said Kibania from two parties one being Hamdan Mpanga was back before he had bought his legal interest from Badru Lutaaya (one of the beneficiaries of the late Iddi Lutaaya) and this purchase was never contested by the late Mpanga. He had existed on the suit kibanja for a long period of time before he purchased his legal interest. The Appellant has discharged his burden in support of the grounds and as such prays that this appeal is upheld and allowed by this honourable court.

## **Analysis of Court:**

$\overline{a}$

## Duties of the 1^st Apellate Court;

The duty of the first appellate court like the instant one was relayed in the celebrated case of Kifamunte Henry Vs Uganda SCCA No. 10 of 1997 to be;

"....................... the first appellate has a duty to review evidence of the case and reconsider the materials before the trial judge. The Appellate Court must then make up its own mind not disregarding the Judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour the appellate Court must be guided by the impression made on the Judge who saw he *witnesses.................................*

I have carefully listened to the submissions of both counsel for and against the appeal, knowing my duty as the appellate court, considered the authorities cited to me and listened to the background of the suit from the beginning to the end.

Ground 1 That the Learned Trial Magistrate erred in law and fact when she held that the plaintiffs are the lawful owner of the suit kibanja whereas not

Badru Lutaya (deceased) father of the plaintiffs/Respondents sold to Hajji Haruna Lubwama (Father of the Defendant/Appellant) as per the agreement dated 20/8/1989 marked DEx1. The Appellant got it as a share from the father's estate. The Defendant/Appellant cannot be thrown out. This ground succeeds..

Ground 2. That the Learned Trial Magistrate erred in law and fact when she held that the appellant/defendant did not adduce any evidence of any transaction where the late Mpanga sold the suit kibanja to the appellant's father Hajji Haruna Lubwama.

This ground also succeeds because there was no agreement/any documents brought by the Plaintiffs/Respondents to the contrary. This ground also succeeds.

Ground 3. That the Learned Trial Magistrate erred in law and fact when she held that the occupancy of appellant/defendants on the suit kibanja was being challenged after the demise of their father.

It is true there was no dispute between the parents because they both know their transactions and they were living in harmony so ground 3 succeeds, Appeal is allowed with costs.

Appeal is hereby allowed with costs. Lower court decision is hereby set aside. Right of appeal explained.

Hon. Justice Oyuko Anthony Ojok. Judge

Dated this 24^th September, 2024.

In the presence of both parties

Hon. Justice Oyuko Anthony Ojok.