[2024] UGHC 611

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 027 OF 2020 (ARISING FROM FPT-00-CV-LD-063 OF 2011)**


### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and decree of His Worship Kaggwa John Francis, the then Chief Magistrate of the Chief Magistrate's Court of Fort Portal delivered on the 28th of August 2020 in favour of the respondents. Being dissatisfied with the whole judgement and decree of the court, the appellant filed this appeal.

#### **Background**

The appellant filed land claim No. 63 of 2011 against the respondents seeking a declaration that she is the owner of the suit land, a declaration that the respondents are trespassers on the suit land, a permanent injunction, an order for vacant possession and eviction against the respondents, special damages and costs of the suit.

The appellant claims that she is the beneficial owner of the suit land. When her mother, the late Jane Kabambukya Pelusi died in 1985, she left the appellant on the suit land and she lived there for nearly 25 years without interruption until 2009 when the 1st, 2nd and 3rd respondents started laying claims on it. In 2011, the respondents entered the suit land, destroyed properties thereon and distributed it amongst themselves, without consent or permission from the appellant.

In their joint written statement of defence, the respondents denied the appellant's claims and counterclaimed that the suit land forms part of the estate of the late Jane Kabambukya Pelusi to which they are beneficiaries and are entitled to a share.

In his judgement, the trial chief magistrate held that the suit land forms part of the estate of late Jane Kabambukya Pelusi and that the appellant and the 1st, 2nd 3rd and 6th respondents are all beneficiaries of the suit land. The trial chief magistrate also set aside the disputed distribution and made no made no order as to costs.

Being dissatisfied with the decision of the trial Chief Magistrate, the appellant appealed to this court on the following grounds:

- 1. The learned trial chief magistrate erred in law and fact when he failed to properly evaluate the evidence on record and erroneously found that the suit land was not given to the appellant as a gift *inter vivos* by her mother, the late Jane Kabwimukya thereby causing injustice to the appellant. - 2. The learned trial chief magistrate erred in law and fact in holding that the respondents were not trespassers on the suit land. - 3. The learned trial chief magistrate erred in law and fact in disbelieving the appellant's evidence in preference of that of the respondents.

# **Representation and Hearing**

Mr. Cosma A. Kateeba represented the appellant whereas Victor A. Businge represented the respondents. The hearing proceeded by way of written submissions. Both counsel filed written submissions which I have considered in this judgement.

## **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where court held thus:

*"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***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters Vs. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

In this appeal, I will handle grounds 1 and 3 concurrently since they relate to the evaluation of evidence or lack of it thereof by the learned trial chief magistrate and then handle ground 2, separately.

# **Grounds 1 and 3**

# **Submission by Counsel for the Appellant on grounds 1 and 3**

Counsel for the appellant submitted that the appellant was given the suit land by her late mother as a gift *inter vivos* and that she, immediately, took possession of the same during the lifetime of her mother.

Counsel for the appellant cited the case of *George William Kalule Vs Norah Nambozi & Another CACA N0. 29 of 2014* where the Court of Appeal held that for a gift of personal property to be completed, the donor must intend to give the gift, the donor must deliver the property to the donee, the donee must accept the gift and take possession of it.

Counsel argued that after the death of her mother, the appellant lived on the suit land uninterrupted until 2011 when the respondents unlawfully distributed the suit land.

Counsel argued that it was wrong for the trial chief magistrate to fault the donor for donating the suit land in the absence of the respondents. Counsel argued that the donor of the gift has the liberty to donate the gift to any person with or without witnesses, let alone the would-be beneficiaries.

On the 3rd ground of appeal, counsel argued that the evidence of the appellant herein that she was given the suit land as a gift *inter vivos* by her mother was corroborated by all the appellant's witnesses at the trial. Counsel argued that there is evidence on record to show that even after the death of her mother, the appellant stayed on the suit land for over 27 years since 1980, and this evidence was not contravened by the respondents herein. Counsel for the appellant argued that had the trial magistrate taken into consideration the evidence of the appellant's witnesses, his judgement would have been different.

## **Submissions by Counsel for the Respondents on Grounds 1 and 3**

Counsel for the respondents submitted that the appellant had not discharged the burden of proof under sections 102 and 103 of the Evidence Act. Counsel argued that the evidence on record shows that the suit land is part of the estate of the late Jane Kabambukya who inherited the same from her late father, Daniel Ruburwa.

Counsel argued that the evidence that the 1st, 2nd and 3rd respondents were children of the late Jane Kabambukya and that the 6th respondent was a grandson of the late Jane Kabambukya was not challenged.

Counsel for the respondents argued that although the appellant claimed that she had been donated the suit land by the late Jane Kabambukya in 1982, she did not lead any documentary evidence to that effect or call any credible witnesses who were present at the time the alleged donation took place. Counsel referred to this court the case of *Oliver Banura Eribankya Vs Josephine Eribankya & another HCCS No. 10* of 2013 where it was held that a gift of any land must be by a deed and that the law does not recognize verbal gifts.

Counsel also argued that evidence on record shows that the late Jane Kabambukya died intestate and was buried on the suit land and therefore the suit land does not belong to the appellant but forms part of the estate of the late Jane Kabambukya.

Counsel submitted that the respondents had led evidence to show that by the time the late Jane Kabambukya died, the appellant was married in Bundibugyo district, and she was only called to attend the burial of her mother and thereafter she went back but only returned to stay on the suit land after failing in marriage.

Counsel also argued that there was further evidence that the 1st, 2nd and 3rd respondents would sometimes stay on the suit land and maintain the banana plantation thereon and had contributed money to build a family house on the suit land which the appellant demolished in 2011, in an attempt to claim exclusive ownership of the suit land.

Counsel also argued that the doctrine of limitation and adverse possession are only applicable as a defence or a shield and could only be applied in the favour of the respondents.

Counsel for the respondent argued that the learned trial chief magistrate evaluated the evidence properly to reach a just conclusion that the suit land was part of the estate of the late Jane Kabambukya and the defendants were beneficiaries of the same.

# **Court's Analysis of Grounds 1 and 3**

In determining land claim No. 63 of 2011, the trial magistrate framed the following issues for determination:

- *1. Whether or not the plaintiff is a beneficial owner of the suit land or it belongs to the estate of the late Kabambukya Peluce* - *2. Whether or not the distribution of the suit land by the defendants was unlawful* - *3. Whether the defendants have trespassed on the suit land.* - *4. What are the remedies available to the parties."*

Decision of Hon. Justice Vincent Emmy Mugabo Page **6** of **15** On the first issue, the trial court, on page 3 of the judgement observed that: *"The plaintiff in her evidence admits that the 1st, 2nd, 3rd and 6th defendants are beneficiaries to the estate of their late mother Kabambukya Pelusi, though she brought PW2, PW3 and Pw4 who stated that she was given the suit land, none of these is family member of the defendants family. It really does not add up for the plaintiff to be given land where the defendants are beneficiaries in the absence of either the beneficiaries or members of the family. The plaintiff did not still produce any documentary evidence to that effect to show that her mother gave her land to the exclusion of the other defendant[s], who are beneficiaries.*

*The late Kabambukya died intestate, she did not leave a will where she would probably have given the suit land to the plaintiff. The late Kubambukya, her mother and her daughters were buried on the suit land. This explains further why the suit land forms part of the estate of the late Kabambukya Pelusi."*

The trial chief magistrate, on page 5 of the judgement, went on to state that:

> *"The 1st, 2nd, and 3rd defendants used to sometimes come and stay on the suit land and grow crops, they even constructed a house on the suit land which the plaintiff demolished in 2011.*

> *This evidence was never challenged by the plaintiff. It is therefore not true that the plaintiff occupied the land during the lifetime of her mother and that when her mother died, she utilized and developed the suit land without any claim or objection from the defendants. The defendants have clearly demonstrated this in their defence. In fact, the demolition of the house the defendants had constructed on*

*the suit land further demonstrates the plaintiff did not have exclusive possession."*

The testimony of the appellant, who testified as PW1 at the trial, is that her mother, the late Jane Kabambukya, died in 1985 and left a "will" where she gave the suit land to the appellant. This will, according to PW1, was written in 1970 and was handed over to the appellant in 1980. It was also the appellant's testimony that her late mother distributed the suit land between her and the 1st respondent before her death. Both PW3 and PW4 stated that the appellant was given the suit land by her late mother before she died.

For the defence, the evidence on record from DW1- DW6 is to the effect that the late Jane Kabambukya died in 1985 intestate. At the time of her death, the appellant was living in Bundibugyo district where she was married. After the death of Jane Kabambukya, the appellant came to live on the suit land with the consent of the 1st, 2nd and 3rd respondents. Both the 2nd and 3rd respondents testified that after the death of their mother, the late Jane Kabambukya, they would occasionally reside in the family house on the suit land. In fact, DW3, Oliver Karungi, told the court that after the death of their mother, she used to live in the family house which was on the suit and she shared a bedroom with the appellant until she got married in 1995.

The 1st, 2nd and 3rd respondents also testified that they contributed money to build a family house on the suit land which was later demolished by the plaintiff in the year 2011 in her bid to take exclusive possession of the suit land.

Decision of Hon. Justice Vincent Emmy Mugabo Page **8** of **15** From the foregoing, it is clear that the appellant's testimony is selfcontradicting in that she states that she was bequeathed the suit land in a will which was handed over to her in 1980, nearly 4 years before her mother demised. It is a trite law that a will by its nature is ambulatory that is it must establish the testator's wishes and only takes effect upon the death of the testator *(See: Beatrice Asire Mallinga Vs. Onathan Obukunyang Malinga HCCS No. 013 of 2013).* Therefore, the evidence of the appellant that she was bequeathed the suit land by way of will defeats the essence of the will and does not give her any interest in the suit land.

Additionally, the testimony of PW3 and PW4 taken together with that of the appellant sets up a different case than pleaded in the amended plaint. Under paragraph 9 of the amended plaint, the appellant states as follows:

- *"9. The facts constituting the cause action are as follows:* - *(a)The plaintiff is a beneficial owner of the suit land and has lived thereon for 51 years.* - *(b)That the suit land belonged to the plaintiff's mother and her said mother died in 1985, leaving the plaintiff on the land.* - *(c) That the plaintiff lived on the suit land for 25 years without anybody making a claim on it until September 2009 when the 1st , 2nd and 3rd defendants started claiming the land.* - *(d)That the defendant unlawfully entered the suit land on the 6th of April 2011 and carried out unlawful acts of distributing the same to the 1st, 2nd and 3rd defendants and in addition destroyed the plaintiff's crops including a banana plantation, yams, Irish potatoes, mahogany trees, among others.* - *(e) ….. (f) ………* (g)*………….."*

Clearly, a reading of the appellant's pleadings as contained in the amended plaint shows that her claim is that of beneficial ownership of the suit land. The claim that the late Jane Kabambukya donated the suit land to the appellant as a gift *inter vivos* is derived from the evidence of PW3 and PW4, which contradicts that of the appellant's testimony and is a complete departure from her own pleadings.

The issue of departure from the pleadings by any party to a suit is settled. Order 6 Rule 7 of the Civil Procedure Rules Provides that:

> *No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading.*

In the case of *Jani Properties Ltd Vs. Dar es Salaam City Council [1966] EA 281* it was held that:

> *"Parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record and moreover, the court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings" (Also see: Semalulu Vs. Nakitto (supra)).*

In the case of *Interfreight Forwarders (U) Ltd. Vs. East African Development Bank, SCCA No. 33 of 1992*, the Supreme Court held thus:

> *"[A party] will not be allowed to succeed on a case not set up by him and be not allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by the way of amendment of the pleadings."*

If the foregoing principles were to be applied to the facts of the instant appeal, no competent court could have held that the suit land was donated to the appellant as a gift *inter vivos* when, in her pleadings, she claimed to be the beneficial owner of the suit land.

Be that as it may, although the trial court observed that none of the appellant's witnesses was a family member and that the alleged donation of the suit land to the appellant was done in the absence of the respondents, it went on to observe that "*it not true that the plaintiff occupied the land during the lifetime of her mother and that when her mother died, she utilized and developed the suit land without any claim or objection from the defendants."*

It is a trite law that 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 *(See: Sajjabi John Vs. Zaiwa Charles, Civil Appeal No.50 of 2012).*

In the instant case, the testimony of DW2, DW3, DW4 and DW5 that at the time of the late Jane Kabambukya's death, the appellant was living in Bundibugyo district, and she only came to live on the suit land after her mother's death with the consent of the 1st, 2nd and 3rd respondents was not challenged by the appellant. The 1st, 2nd and 3rd respondents also testified that they contributed money to build a family house on the suit land which was later demolished by the appellant in 2011. In fact, DW3 testified that she lived with the appellant in their mother's house after her demise until 1995 when she got married.

Upon thorough scrutiny and evaluation of evidence on record, there is no evidence to suggest that the late Jane Kabambukya intended to give the suit land to the appellant, the suit land was given to her, and that the appellant took possession of the suit land during the lifetime of her late mother. To the contrary, there is cogent evidence to show that the suit land is part of the estate of the late Jane Kababukya and that the 1st, 2nd, 3rd and 6th respondents as well as the appellant are beneficiaries of that estate.

However, contrary to the argument of counsel for the respondents, not all gifts *inter vivos* need to be in writing, although having a document can provide clarity and prevent disputes. A gift *inter vivos* of land may be established by the evidence of exclusive occupation and use thereof by the donee during the lifetime of the donor *(See: Oyet Bosco & Another Vs. Bwola Vincent Suing Through Attorney Too-Ocaya Francis HC Civil Appeal No. 68 Of 2016)*. All that the plaintiff needs to prove is the intent, delivery, and acceptance in establishing the validity of the gift. The evidence on record does not bring out these elements, on the balance of probability.

In the premises, I have no reason to fault the finding of the trial chief magistrate. Therefore grounds 1 and 3 of this appeal must fall.

## **Ground 2: The learned trial chief magistrate erred in law and fact in holding that the respondents were not trespassers on the suit land.**

## **Submissions by both Counsel on Ground 2**

Counsel for the appellant submitted that the evidence on record shows that the respondents entered the suit land forcefully without the consent of the appellant who had exclusive possession of the suit land. Counsel argued that the trial chief magistrate erred in law and fact when she held that the respondents were not trespassers on the suit land. Counsel referred this

## court to the case of *Justine E. M. N. Lutaya Vs. Stirling Civil Engineering CACA No. 11 of 2002.*

On the other hand, counsel for the respondents argued that the suit land is part of the estate of the late Jane Kabambukya, and the 1st, 2nd, 3rd, and 6th respondents are beneficiaries of it. Therefore, they could not have trespassed on land in which they have a beneficial interest. Counsel further argued that when the trial court visited the locus in quo, it observed a graveyard, a homestead, and a banana plantation, all of which are part of the estate.

Counsel for the respondents also argued that the 4th and 5th respondents are clan leaders who were invited and authorized by the beneficiaries of the estate to distribute the suit land. Counsel submitted that the respondents are not trespassers on the suit land.

## **Court's Analysis of Ground 2**

In the case of *Sheikh Muhammed Lubowa Vs. Kitara Enterprise Ltd CACA No. 04 of 1987,* the court held that for a plaintiff to prove allegations of trespass, he must prove: (i) that the disputed land belonged to him, (ii) that the defendant had entered upon it, and (iii) that the entry was unlawful, in that, it was made without permission or that the defendants had no claim, right or interest in the disputed land.

However, the Supreme Court ruled that an action of trespass is largely premised on possession, whether actual or constructive and not necessarily ownership where the owner has parted with possession. In the case of *Justine E. M. N. Lutaaya Vs. Sterling Civil Engineering Co. Ltd SCCA No.11 of 2002* the Supreme Court held that trespass to land occurs *"when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land".* The Supreme Court went on to state 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. At common law, the cardinal rule is that only a person in possession of the land has the capacity to sue in trespass. Thus, the owner of an unencumbered land has such capacity to sue, but a landowner who grants a lease of his land does not have the capacity to sue, because he parts with possession of the land."*

In the instant case, although the appellant was in possession of the suit land, that possession was subject to the interests of the 1st, 2nd, 3rd and 6th respondents who are the beneficial owners of the suit land. The evidence on record shows that the appellant started living on the suit land with the consent of the 1st, 2nd and 3rd respondents and their entry into the land was after a series of meetings with the Resident District Commissioner, the Chief Administrative Officer, and the local leaders which the appellant did not attend. This implies that by the time the respondents entered the suit land, their consent given to the appellant to have possession of the same had been withdrawn.

Given that the appellant had no exclusive possession of the suit land and that the 1st, 2nd, 3rd and 6th respondents have a beneficial interest in the same, the respondents cannot be held to be trespassers on the suit land. Thus, I have no reason to fault the trial court's finding that the respondents are not trespassers on the suit land. Ground 2 of the appeal must fail.

Resultantly, it is my finding that this appeal is without merit and is hereby dismissed with costs to the respondents.

It is so ordered.

Dated at Fort Portal this 28th day of June 2024.

**Vincent Emmy Mugabo Judge 28th June 2024**