[2024] UGHCLD 272

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL N0.0315 OF 2023 (Appeal from Kajjansi Chief Magistrate Civil Suit**

**No.042 of 2018)**

**JOSEPH KIWALABYE :::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**BERNADETTE NANTUMBWE :::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

### *Introduction;*

1. *Joseph Kiwalabye* herein after referred to as the Appellant brought this appeal against *Bernadette Nantumbwe* herein after referred to as the respondent appealing against the decision of Her Worship Karungi Doreen Olga, in Civil Suit No. 042 of 2018 by which judgment was entered in favour of the Respondent (plaintiff in the lower court) against the appellant (defendant in the lower court) for; orders that the appellant /defendant was found to be a

trespasser on the suit land and costs of the suit be provided to the appellant/defendant.

# *Background;*

- 2. At the lower court, the respondent/plaintiff sued the appellant for trespass to land situate at Buswa, Kajjansi Town council in Wakiso district measuring approximately 6 acres, an eviction order against the defendant, general damages, aggravated damages, interest, mesne profits and costs of the suit. - 3. Briefly, the respondent/plaintiff's case was that her and the appellant are siblings having been born to the late Girigori Wasswa Musoke and that the respondent is the owner of a Kibanja situate at Buswa, Sissa sub county Wakiso district having acquired the same as a gift intervivos in the year 1986 from their father Girigori Wasswa Musoke and she attached a copy of the said gift deed. - 4. Around 1990, the defendant thereabout started encroaching on the suit kibanja which compelled the respondent to file the suit against the appellant in the RC 1 court at Buswa where the respondent obtained the decision in her favor. - 5. Being dissatisfied with the said decision, the appellant appealed to RC2 and 3 courts where the two courts maintained the decision of

the RC1 court but the appellant refused to vacate the said land. The appellant proceeded to chase away the respondent from the land, scattered her building materials and chased away her workers amounting to trespass to the said land.

- 6. The appellant's case was that his late father Girigoli W. Musoke and mother gave him the suit land in 1970's which is a Kibanja located on his late father's land that is Block 496 Plot 2 at Buswa Wakiso district measuring approximately 6 acres and the respondent was given a small portion of Kibanja and she was never given the appellant's Kibanja, it is the plaintiff/respondent who adamantly refused to take possession by constructing on the plot she was given and instead started laying claims on the defendant's/appellant's portion which he has occupied since the 1970's using it for subsistence farming and the defendant/appellant prayed for the respondent'/plaintiff's suit to be dismissed. - 7. The trial magistrate entered judgement for the respondent/plaintiff and awarded the reliefs mentioned earlier. - 8. Being dissatisfied with the said decision, the appellant appealed on the following grounds, namely;

- i) That the learned trial magistrate erred in law and fact when she entertained and granted the orders sought for by the respondent without requisite jurisdiction. - ii) The learned trial magistrate erred in law and fact when she declared the appellant a trespasser. - iii) The learned trial magistrate erred in law and fact when she held that the respondent is the rightful owner of the suit Kibanja measuring approximately 6(six) acres on land comprised in Busiro Block 496 Plot 2, Kajjansi Town Council, Wakiso district. - iv) That the learned trial magistrate grossly erred in making miss directions and non-directions of law and fact when she failed to properly and exhaustively evaluate, scrutinize ad appraise the evidence on record thereby reaching a wrong decision.

# *Representation;*

9. At the hearing of the appeal, the appellant was represented by counsel Kawuma Mahad of Lufunya Associated advocates whereas the respondent was represented by Counsel Kaketo Denis of M/S

Denis Kakeeto Advocates. In arguing the appeal, counsel for the appellant argued all the grounds separately.

10. Both counsel proceeded by way of written submissions which I have relied on in the determination of this matter.

# *Duty of the appellate court;*

- *11.* This being a first appeal, this court is under an obligation to rehear the case by subjecting the evidence presented to the court below to a fresh scrutiny and re-appraisal before coming to its own conclusion. *(See***;** *Nanensio Begumisa and three Others vs Eric Tiberaga SCCA 17 of 2000)* - *12.* It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate 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, the nature of this duty was put more appropriately in **Selle vs Associated Motor Boat Co. [1968] EA 123**.

- *13.* An appeal is by way of retrial and the principles upon which this Court acts in such an appeal are well settled, briefly put they are; *that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect*. - *14.* In particular, this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. *(See; Abdul Hameed Saif*

#### *Vs Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)*

### *Power of the appellate court;*

15. Section 80(i) of the Civil Procedure Act grants the high court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate court shall have the power to determine a case finally. The appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the act on courts of original jurisdiction in respect of suits instituted in it.

#### *Analysis and determination of the grounds of appeal;*

- 16. In arguing ground 1 of the appeal, counsel for the appellant submitted that it is trite law that proceedings without jurisdiction are a nullity and relied on the provisions of section 206(1)19a) of the magistrate's court act which is to the effect that the pecuniary jurisdiction of a chief magistrate court does not exceed UGX 50,000,000(fifty million Ugandan shillings) and shall have unlimited jurisdiction in disputes relating to conversion, damage to property and trespass. - 17. It was the submission of counsel for the appellant that the trial magistrate ought to have considered the economic value of the suit land at the time of trial since the suit land is alleged to be valued at more than UGHS 50,000,000 which is the pecuniary jurisdiction for a chief magistrate court. The suit was not exclusively for trespass but also involved determination of the lawful ownership of the suit land which translates to recovery of land as a cause of action and as per the decision in **Tibezindana**

# **Musa and 20 Ors vs Gahwera George and Ors MC No.1 of 2023**

before Justice Serunkuma where he emphasized that there is need to draw a distinction between trespass to land as provided in section 206(1)a of the magistrate Act and the action for recovery of land, where court is meant to determine and make a declaration on the ownership of land, that shall be considered an issue arising under recovery of land as a distinct cause of action.

- 18. Counsel for the respondent submitted that the estimated value of the suit land did not exceed UGX 50,000,000 and that the provisions of section 207(1) a of the Magistrate Court Act state that a chief magistrate shall have jurisdiction where the value of the subject matter does not exceed fifty million shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass. - 19. Drawing reference to the plaint at page 3, the respondent/plaintiff's prayers were seeking for a declaration that the defendant's actions/omissions amount to trespass among other orders and in the judgement of the learned trial magistrate at page 3 the order of court was in respect of the declaration that the defendant was trespassing in the plaintiff's suit Kibanja, general damages among other orders.

- 20. It is trite that jurisdiction is a creature of statute and court cannot proceed to determine a matter that does not fall within its jurisdiction. I concur with the provisions and authorities relied upon by both counsel that speak to the fact that the pecuniary jurisdiction of a chief magistrate court does not exceed Ugshs 50,000,000 (Fifty Million Ugandan Shilligs) - 21. The plaint in the main suit indicated that the value of the subject matter was approximately Ughs 20,000,000 and the magistrate grade 1 in his ruling where he transferred the file to the chief magistrate court at page 3 of the record of proceedings on the point of pecuniary jurisdiction as raised by counsel for the defendant stated that the magistrate grade 1 court jurisdiction is only limited to not exceeding Ughs 20,000,000 and the chief magistrate court would be the best court to handle the suit since it has unlimited jurisdiction in matters of trespass and the value of the subject matter falls within the pecuniary jurisdiction of the chief magistrate court. - 22. The averments raised by counsel for the appellants in his submissions that the suit land was measuring approximately 6(six) acres and that the economic value of the land at that time

was estimated to be at Ughs 15,000,000 per acre which exceeds the pecuniary jurisdiction of the chief magistrate court were not supported by any evidence, counsel for the appellant did not lead any evidence nor adduce any valuation report during trial to enable court reach a finding.

- 23. The value of the subject matter that the court relied on was the one stated in the pleadings of the parties, if indeed the value exceeded the Ugshs 50,000,000 as alleged by counsel for the appellant then evidence ought to have been adduced in court indicating the exact value of the subject matter as alleged. - 24. It is trite law that the burden of proof lies on 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. Further still, that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. - 25. As to whether the suit was premised on trespass as a cause of action or not? - 26. Drawing reference to the plaint in the main suit under paragraph 3 it states that the plaintiff's claim against the defendant is for, a declaration that the defendant's acts amounted to trespass, an eviction order against the defendant, general damages, aggravated damages, interest, mesne profits and costs of the suit. Further the trial chief magistrate in her judgement clearly stated that the plaintiff's claim against the defendant is for declaration that the defendant's acts amount to trespass, an eviction order against the defendant, general damages, aggravated damages, interest, mesne profits and costs of the suit.

- 27. The chief magistrate in her final orders declared the following; the defendant is declared a trespasser on the plaintiff's Kibanja, defendant should pay general damages of Ughs 10,000,000 for the loss, inconvenience and mental anguish causes, interest at court rate of 6% per year and the defendant should also pay costs for this suit. - 28. From the pleadings of the parties to the decision of the trial magistrate it can be inferred that indeed this was one premised on trespass as a cause of action which was within the jurisdiction of the chief magistrate court. - 29. Therefore, the first ground is resolved in the negative;

# **Ground 2 and 3;** The learned trial magistrate erred in law and fact when she declared the appellant a trespasser.

The learned trial magistrate erred in law and fact when she held that the respondent is the rightful owner of the suit Kibanja measuring approximately 6(six) acres on land comprised in Busiro Block 496 Plot 2, Kajjansi Town council, Wakiso district.

- 30. Counsel for the appellant submitted that, Trespass was defined in the case of **Justine E. M. N Lutaaya v sterling Civil Engineering Co. Limited SCCA No. 11 of 2OO2** as when a person makes an unauthorized entry upon and thereby interferes, or portends to interfere with another person's possession of the Land. Court further held that the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. - 31. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue Counsel for the applicant further submitted that in the instant case, the learned trial Magistrate relied on the statements of the Respondent that the Respondent is the rightful owner of the suit land and that she

took possession by planting cassava and construction of a building.

- 32. Counsel for the appellant further submitted that in determining ownership, the learned trial Magistrate relied on the alleged Gift inter vivos document which does not disclose the clear size of the suit land, its clear boundaries and it has no witnesses apart from the Respondent in total disregard of the appellant's evidence that, he was given the same land earlier in 1970. - 33. In reply counsel for the respondent submitted that, according to page 21, of the record of proceedings line 10, 11, 14, 15 and 18 during the appellant's cross examination and line 9 of his reexamination the appellant acknowledged that he did not vacate the Kibanja, that he planted cassava on the land, that he refused the respondent to construct a house on the land and the respondent is not using her Kibanja and he refused the respondent from using the same. - 34. The Learned Trial Chief Magistrate in her judgement on page 2 paragraph 2 rightly determined that the plaintiff/respondent was given the suit land, she went on to take possession by planting their cassava plants however the defendant/appellant would

uproot them and chase away her workers and also later on when she took the builders to start construction, the defendant/appellant demolished the structure and destroyed her building materials.

- 35. It is the submission of counsel for the respondent that, the Learned Trial Chief Magistrate in her judgement on page 2 paragraph 4 line 6 - 11 stated that in quote "At locus court observed the scattered cassava plants and destroyed bricks on the ground, most part of the land was bushy with old grown trees, the land looked abandoned in general the defendant stated that he was in possession and it was his father who gave him the Kibanja however he never produced any proof of his donation to him and more so the Kibanja looked bushy and un kept where by his possession was not certain on the ground when I visited the locus in quo as such I came to my conclusion." - 36. Trespass to land as referred to in the decision of **Justine E. M Lutaaya vs Stirling Civil Engineering(supra)** occurs when there is unlawful entry on land that belongs to the plaintiff. For an action of trespass to succeed the following ought to be proved; that the disputed land belonged to the plaintiff, that the defendant had

entered upon the land and that the entry was unlawfully made without permission of the defendant.

- 37. As to whether the disputed land belonged to the plaintiff, the trial Chief Magistrate relied on the gift deed (PEx3A and PEx3B) executed in Favor of the respondent by her late father Girigori Wasswa in the year 1986 and the contents of the said document indicate that she was given the land by the late father for use. - 38. A gift inter vivos has been defined to mean the transfer of any property from one person gratuitously while the donor is alive and not in expectation of death, it is an act whereby something is voluntarily transferred from the true possessor to another person with full intention on the part of the receiver to retain the thing as his own without restoring it to the giver. *(See;Sajjabi John vs*

## *Zaiwa Charles, Civil Appeal No.50 of 2012).*

- 39. Further for a gift inter vivos to take irrevocable roots, the donor must intend to give the gift, the donor must deliver the gift and the donee must accept the gift. - 40. The appellant in his evidence states that he was given the same land however he never adduced any evidence during trial to indicate that he was indeed given the said land.

- 41. Referring to cross examination of DW2 during trial at page 22 of the record of proceedings when he was asked on how the appellant/defendant acquired the suit land, he stated that he was not present when the defendant was given the land and it is the defendant/appellant who told him that he was given the said land. - 42. Upon perusal of the record, there was no any witness or evidence adduced during trial speaking to the fact that indeed the appellant was given the said land. - 43. In today's world one cannot just allege that he was given land and fails to adduce any proof of ownership of the same land, this is a valuable thing that cannot be acquired without any documentary or circumstantial proof and it is he who alleges existence of a fact that must prove the same. The appellant failed to adduce evidence that states that indeed he owned the suit land. Therefore, the trial Chief Magistrate rightfully ruled that the disputed land belonged to the respondent/plaintiff. - 44. As to whether the defendant/appellant had entered upon the land without permission of the respondent/plaintiff; - 45. It was the evidence of the respondent that she took possession of the suit Kibanja by planting cassava plantations on the land

however the defendant/appellant would uproot them, the defendant proceeded to take over the land and demolished the structures the respondent had started constructing.

- 46. During locus proceedings at page 25-26 of the record of proceedings, the trial court observed that the suit land had scattered cassava plantations and destroyed bricks on the ground and the other part was bushy and it is the defendant/appellant who had taken over possession of the same land. - 47. I am of the view that it appears the defendant/appellant entered onto the land without any permission from the plaintiff/respondent who was the owner of the said land. - 48. It cannot be said that the trial Chief Magistrate erred in ruling that the defendant/appellant was a trespasser on the suit land and that the same land belonged to the respondent. Therefore, grounds 2 and 3 are resolved in the negative.

Ground 4; That the learned trial Magistrate grossly erred in making miss directions and non-directions of law and fact when she failed to properly and exhaustively evaluate, scrutinize and appraise the evidence on record thereby reaching a wrong decision.

- 49. In this respect, I have had the opportunity to examine the entire record, testimonies and evidence of the parties as pointed out in grounds 1,2,3 & 4 which I have fittingly resolved. I am satisfied that the trial court arrived at its decision and findings based on very sound plausible legal principles and the learned trial magistrate arrived at his conclusions upon proper assessment of the evidence. - 50. The conclusion of this court is that the trial court correctly arrived at its conclusion when it decided in favor of the respondent/defendant in its judgement. - 51. In the final result, this appeal is hereby dismissed with no order as to costs.

**I SO ORDER.**

## **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

# **11th/11/2024**

# **Delivered electronically via ECCMIS on the 11th day of**

## **November 2024.**