[2024] UGHC 1267

### **THE REPUBLIC OF UGANDA**

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

# **CIVIL APPEAL NO. HCT-17-LD-CA-0031-2023**

# **(ARISING FROM NAKASONGOLA CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 02 OF 2016)**

**KIKU YUSUF ……………………………………. APPELLANT**

## **VERSUS**

### **1. GODFREY LUYIGA**

# **2. STEPHEN SEKYEIWE………………………RESPONDENTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

#### Introduction

1. By memorandum of appeal lodged on 13.07.2020, the appellant Kiku appealed the judgement of HW Tibayeita Edgar Tusiime, Magistrate Grade one at Nakasongola delivered on 18.12.2019, on four grounds to which I shall revert later in the judgment. When the appeal came up for hearing, I directed all parties to file their written submissions as follows; 28.12.2023 for the appellant; 29.01.2024 for the respondents and a rejoinder by 5.02.2024. Counsel for the Appellant filed written submissions while counsel for the Respondents did not file their written submissions. I will therefore determine the appeal without their input.

# Background facts

- 2. By a plaint filed on 14.03.2016, the appellant Kiku Yusuf sued Godfrey Luyiga and Stephen Sekyejjwe for a declaration that they are trespassers on a suit Kibanja at Kavule village, Nakitoma Sub-County, Nakasongola District measuring one acre, an order for vacant possession, and a permanent injunction restraining the defendants from further trespass, general damages and costs of the suit. - 3. It was the Kiku's claim that he acquired a Kibanja in 1993 situate at Kavule village, Nakitoma Sub County, Nakasongola District measuring 34 acres, took possession, and constructed a residential house where he has been residing with his family since then. The plaintiff claimed that he then applied for freehold on the Kibanja on 26.07.2014 to the area land committee and the same was granted by the Nakasongola District Land Board. Following the said inspection, Lucia and another trespassed on the suit Kibanja measuring one acre, constructed a house and took possession of it hence the suit. - 4. The first and second respondents Luyiga and Sekyejjwe filed their joint written statement of defence and a counter claim on 31.03.2016 in which they denied the plaintiff's claim and stated in a counter claim that they were born on the suit land with their siblings to the late Mwanje Finekasi in the 1950s and 1960s and aver that their father had used the suit land for cultivation and grazing of animals and that following his death in 1975, they inherited the suit land and continued their occupation of the same and as such, they hold a customary interest in the suit land. They further averred that it was in 2008 when Kiku trespassed onto their land and attempted to set up a house and that he filed this suit after they stopped

him from illegally obtaining a freehold interest on their land and that the area land committee did not make any physical inspection of the suit land.

- 5. The appellant Kiku filed a reply to the written statement of defence and counter claim wherein he reiterated the claims in the plaint and further claimed that the respondents started encroaching on the suit land following the inspection and approval of his application for freehold interest by the area land committee, which acts were stopped by police and that they started cultivation on the suit land in 2016. The appellant further affirmed that the defendants' father Mwanje Fenikansi was not buried on the suit land. After hearing both parties, the learned trial magistrate found that the respondents are the lawful owners of the suit land under the customary tenure system. He gave the following orders: - a. An order of eviction doth issue against the plaintiff - b. A permanent injunction restraining the plaintiff issues restraining the plaintiff from trespassing onto the suit land. - c. An order for vacant possession shall issue - d. The plaintiff to pay the respondents 2,000,000/ as general damages. - e. Costs of the suit.

#### Duty of the first appellate court.

- 6. In **Father Narsensio Begumisa and 3 orthers v Eric Tibebaga SCCA 17 of 2002; [2004] UGSC 18(22 June 2004),** the Court reiterated the duty of the first appellate court which is to re-aapraise the evidence adduced in the trial court and arrive at its own conclusions on issues of law and fact which I have done. - 7. Two issues were framed for trial in the lower court: - a. Who is the legal owner of the suit land? - b. Remedies

### Burden of proof

## 8. **Section 101 of the Evidence Act Cap. 6** stipulates that

*'whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist'.*

9. 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'.*

Facts emerging from re-evaluation of evidence in the trial court and this court's conclusions on issues of fact and law.

- 10. I have read the proceedings in the trial court. The gist of the dispute between the two parties is a one acre piece of land located in between the larger portions of land owned by the two parties on either side of the one acre. This fact was established by the learned trial magistrate during the locus visit on 18.10.2019. The appellant Kiku claims that he settled on this suit land in 1993 but that the respondents trespassed on it in 2014. - 11. Kiku relied upon an application for conversion of customary tenure to freehold marked Pexh. 1. The application was for land at Kavule, Bujjage parish, Nakitoma sub-county, Nakasongola district measuring 4.675 hectares. The application dated 26.7.2014 was signed by four members of the area land committee. In a separate handwritten undated document under the title '*Remarks and recommendation of the area land committee'*, the committee recommended Kiku. This document was signed by four members, namely, Kigayaza Charles, Sewaya Stephen, Semugga Stephen, Mulwanyi John recommends that Kiku is given land under freehold tenure to the tune of 14.027 hectares. This recommendation is marked Pexh. II. - 12. The other documentary evidence relied upon by Kiku is a letter dated 17.12.2014 from the secretary Nakasongola District Land Board Byekwaso Fredrick, instructing the district staff surveyor to survey land on which the board had granted freehold tenure under minute No. NDLB 03/2014(3) (a) (7) on 25.9.2014. it was marked Pexh. III - 13. While these documents show that Kiku applied for conversion to freehold over 4.675 hectares, there is no evidence that his application was

successful. Pexh.3 does not name Kiku as the successful applicant nor is the acreage given. Furthermore, the area land committee's inspection report recommends 14 hectares which is more than double what Kiku had applied for.

- 14. A survey report ( PEx. IV) by Survey Tech Solutions dated 18.04.2015 commissioned by Kiku shows that Kiku lays claim to 14.027 hectares which has been plotted as Buruli Block 67 Plot 6. Evidently, the disputed one acre is part of this larger area of 14 hectares which has no certificate of title as yet otherwise it would have been tendered in court. Worthy of note is that the application for conversion from customary tenure to freehold is dated 26.7.2014 which coincides with the time Kiku alleged the respondents began trespassing on the suit land. In the absence of the Minutes of the land board held on 24.9.2014, I find as a fact that Kiku was never given a freehold over the suit land over the 14 hectares including the disputed one acre. - 15. Turning to the respondents' case, they relied upon mostly oral testimony and the locus visit which placed their case in perspective. Through five witnesses, they established their claim to the suit land as based on long possession. DW1 Luyiga Godfrey inherited the suit land from his late father Mwanje Fenekasi in 1970 and in 2008, he found Kiku building a house thereon and as for Luyiga himself, he has a mud and wattle house thereon.

- 16. Luyiga was supported by DW2 Miiro Patrick, chairperson LC1 of Kikooba who intervened in the dispute in 2008. He is aware that the suit land belongs to the respondents who have houses thereon but do not reside there permanently and only graze their animals there. According to Miiro, the respondents own 30 acres in the area. - 17. Sekyewa Stephen the second respondent had crops on the land but left when the dispute arose but he grazes his animals on the suit land. Furthermore, his grandfather Bamulanzeki , grandmother Samalie and father Mwane Fenefasi all lived on it. - 18. DW4 Nyombi Yombo Livingstone, resident of Kafu village, Kafu Town Council supported the respondents' claim over the land. At the time the Kiku applied to the Nakasongola District Land Board for the suit land, he was the chairman who issued him a Minute. Furthermore, the Board discovered that the suit land was never inspected and certain prerequisites were not met including a 14 days' notice for the hearing and as a result, the land was not surveyed. He further testified that at the time he left office, the Minute given to the plaintiff had not yet been cancelled but that following a complaint from the respondents in respect of the plaintiff's application, the board stayed the proceedings of the Minute. - 19. Nyombi further testified that while still in office, he declined to sign a deed plan for the suit land presented by the plaintiff citing irregularities in the process and that the suit land had burial grounds of the defendants' father. - 20. According to Nyombi, in the course of handling Kiku's application, a communication was received from the LC1 of Kikooba and the LCIII of Nakitoma stating that the suit land belongs to the Basinga clan of which the respondents are members. - 21. Nyombi's testimony directly links to the plaintiff's exhibits that show by implication, that his application for freehold was never granted since minutes of the district land board's meeting were not adduced in evidence. Following a complaint to the land board, Nyombi who was the district land board chairperson at the time together with the secretary Byekwaso Fredrick, and Kzibwe Michael the district staff surveyor visited the suit land and in their report (DEXH.1) dated 17.12.2015 undertook to review the decision to grant freehold to the appellant. - 22. DW5Mwebe Patrick resident of Bugalama village, Bujabe parish, Nakitoma district, is a maternal nephew to the respondents whom he knows the defendants own the suit land as evidenced by the houses and mango trees. - 23. From the foregoing analysis, it is evident that the plaintiff settled in the area in 1993 long after the respondents' predecessor in title Fenekasi Mwanje had settled there before 1970. Furthermore, I find as fact that the alleged dispute arose in 2008 as attested to by the LC I chairman Miiro and that Kiku in 2014 unsuccessfully tried and failed to obtain legal title which speaks to the credibility of the respondents' case they settled in the area before him and therefore have a superior right in equity over the suit land. First in time, first in equity. For the foregoing reasons, I am

satisfied the learned trial magistrate properly evaluated the evidence and arrived at a correct conclusion on facts and law. I now turn to the grounds of appeal.

#### **Ground one**

- 24. *The learned trial magistrate erred in law and fact when he held that the respondents are customary owners of the suit land without any plausible evidence to so prove thereby arriving to a wrong decision*. - 25. Counsel for the appellant submitted that the appellant acquired the suit land as terra nullius wherein it was unoccupied and without inhabitants and that such land is public land and that the respondent's assertion that they hold a customary interest in the suit land was not backed up by evidence. - 26. Counsel further submitted that the trial magistrate did not base on any evidence to adjudge that that the defendants/respondents held a customary interest in the suit land. Furthermore, that since the respondents and their witnesses testified that the suit land is public land, the appellant's application for freehold stands unchallenged. - 27. I disagree with the notion fronted by counsel for the appellant that the suit land is public land. While both the plaintiff and defendants assert that the suit land was formerly public land, this assertion is not supported by evidence because the plaintiff's application marked PE1 (form 4) is for an applicant who holds land under customary tenure and wishes to have

it converted into freehold tenure under Sections 4 of the Land Act and Regulations 10, 11, 12 of the Land Regulations 2004.

- 28. Having carefully analysed the appellant's application to the Area Land Committee namely; PE1, A and DE1, it can be inferred that the suit land falls under the customary tenure system. Nyombi DW4's testimony makes mention of a communication given to him by the LC1 of Kikooba and the LCIII of Nakitoma stating that the suit land belongs to the defendants' clan of Basinga. This is further buttressed by a report from the Nakasongola Disrtrict Land Board dated marked DE1 wherein the committee found that the suit land belonged to the Basinga clan to which the defendants are related. This report dated 17.12.2015 shows that the District Land Board under the chairmanship of Nyombi DW4 visited the suit land and found that the dispute was between Basinga clan of which the respondents belong. Furthermore, the respondents' counterclaim is premised on the assertion that they are customary owners of the suit. In light of the foregoing analysis, I find as a fact that the suit land falls under customary tenure. - 29. It is trite law that a party that alleges to have a customary interest in land must prove the existence of such a custom in a specific area or among a class of persons and that he or she belongs to a specific description or class of persons to whom customary rules apply in respect of a specific land to which those rules apply or that he or she acquired the land pursuant to those rules.

- 30. In **Atunya vs Okeny (Civil Appeal No. 0051 of 2017) [2018] UGHCLD 69(6 December 2018)** relying on **Bwentegeine & Anor v Kadooba (Civil Appeal No. 59 of 2009) [2015] UGCA 52 (30 June 2015), Mubiru, J observed** that; Proof of mere occupancy and user may be, without more, is not proof of customary tenure. Possession or use of land does not, in itself, convey any rights in the land under custom. - 31. **Odoki, C. J**(as he then was) in **Kampala District Land Board and Anor v Venansio Babweyaka and Ors, SCCA No. 2 of 2007,** held;

*"It is well established that where African customary law is neither well known nor documented, it must be established for the court's guidance by the party intending to rely on it. It is also trite law that as a matter practice and continence in civil cases, relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence of expert opinion adduced by the parties." See;* **Bwentegeine & Anor v Kadooba (Civil Appeal No. 59 of 2009) [2015] UGCA 52 (30 June 2015)**

32. Upon being satisfied with credible evidence adduced by the respondents that they inherited the suit land from their late father Fenekasi who died in 1970 and based on evidence that the suit land belongs to the basing clan, I find on a balance of probabilities that the suit land was land held under customary tenure. Ground one fails.

#### **Ground two**

*The learned trial magistrate erred in law and fact when he selectively evaluated the respondent's evidence without considering the appellant's evidence thereby arriving at wrong decision.*

#### **Ground three**

*The learned trial magistrate erred in law and fact when he ignored the grave contradictions and inconsistencies in the respondents' evidence on record thereby arriving at a wrong decision.*

#### **Ground four**

*The learned trial magistrate erred in law when he failed to apply the law to the facts thereby coming to a wrong conclusion.*

- 33. All three grounds touch on evaluation of evidence. I have re-evaluated the evidence in the trial court and I find that the learned trial magistrate properly evaluated the evidence and arrived at a correct conclusion on issues of fact and law. - 34. As all four grounds have failed this appeal is dismissed and the judgment of the trial court confirmed. - a. The appellant Kiku Yusuf shall voluntarily vacate the suit land within thirty (30) days from the date of this judgment upon failure of which, an eviction order shall issue in accordance with Land Evictions (Practice Directions) 2021.

- b. The order in (a) is without prejudice to the liberty of the respondents to take out contempt proceedings in default of Kiku's voluntary vacation of the suit land. - c. The appellant Kiku is restrained from making any further claim to the suit land and from interfering with the respondents' quiet possession. - d. The appellant Kiku shall pay the respondents Luyiga Godfrey and Steven Sekyewe costs of this appeal and the lower court.

# **DATED AT LUWERO THIS 25TH DAY OF APRIL 2024 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

## **LADY JUSTICE HENRIETTA WOLAYO**

### **Legal Representation**

Bagyenda and Co Advocates for the Appellant