[2019] UGCA 2123

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

*(Coram: Egonda-Ntende, Obura & Muhanguzi, JJA)*

## Civil Appeal No. 154 of 2017

(Arising from High Court Civil Suit No. 385 of 2008)

#### **BETWEEN**

- 1. LAWRENCE NABAMBA - **....... APPELLANTS** 2. JOSEPH MULIIKA ::::::::::::::::::::::::::::::::::: - 3. IMELDA NANYUME KIBUUKA (As administrators of the estate of the Late John Kibuuka)

## AND

- 1. HERBERT SEMAKULA MUSOKE (as administrator of the Estate of the late E. Nagadya) - 2. NANTANDWE JUSTINE KIZITO - 3. FLORENCE MIREMBE NAGADYA - 4. ROBERT SERUWAGI :::::::::::::::::::::::::::::::::::: - 5. HELLEN NASSUNA SERUWAGI - 6. ANKWASA BRIAN

(An Appeal from the Judgment and Decree of the High Court of Uganda, (Namundi, J.), dated 10^th April 2017)

## JUDGMENT OF FREDRICK EGONDA-NTENDE, JA

#### **Introduction**

1. John Kibuuka (now deceased) instituted H. C. C. S. No. 385 of 2008 for recovery of land against the 1^st, 3^rd, 4^th, 5^th and 6^th respondents and David Ssenyonjo now deceased. Upon the death of John Kibuuka, the plaintiffs (being administrators of

Page 1 of 16

state of the late John Kibuuka) filed an amended plaint to include themselves ies and add the 2nd and 6tr' respondents the AS

I

- plaintiffs sought for a declaration against the respondents jointly and severally, the estate of the late John Kibuuka is the rightful owner of 3 acres of land that rt of land fbrmerly known as Kyadondo Block 192 Plot 57, that the plaintiffs entitled to possession and occupation of the suit land, that the alienation of the land by the I ", 2"d, 3"r, 4'h, 5th and 60' respondents was illegal and therefore null void, orders for the cancellation of the titles comprised in the suit property and eral damages. rh+ IS - e learned trial judge dismissed the suit with costs and made an order that the intifli receive the certificate of title that belonged to John Kibuuka as a result of subdivision that took place with his full knowledge. The appellants being satisfied with the decision of the trial court have appealed to this court. At the ginning ofthe hearing ofthis appeal, counsel for the appellant applied to this court amend grounds l,5 and 6 by deleting some words that rnade the grounds gumentative. This court granted the application and I shall therefore set forth the unds of appeal as amended as follows:

'( I ) 1'he Leamed trial judge erred in law and l-act when he held that there was no evidence on record to confirm the size ofthe suit land.

(2) The Leamed trial judge erred in law and fbct when he held that the suit was rcs.judic'utu having been the subject of an earlier decision of Kira Urban Exccutive Committee LC I I I Court at Kira and yel went ahead to make orders contrary to the lindings ol'the said court.

(3) 1'he leamed trial judge erred in law and lact when he disregarded the appellant's alternative prayer that in the event that the court linds that the late John Kibuuka had no1 legally acquired the suit land liom the l" respondent, he still remained a customary tenant/kibanja holder on the suit Iand.

(4) 'Ihe Leamed trial judge erred in law and fbct when he totally disregarded the contcnts ofa sketch map ofthe locus visit prepared and agreed upon by all the parties and which the court agreed to rely on, in lieu of a locus visit.

(5) 'Ihe Learned trial judge erred in lau'and fact when he held that the Appellants had agreed to the subdivision olthe suit land and to receiving the plots registered in the names of'the late John Kibuuka.

(6) 'Ihe Learned trial judge erred in law and tact when he disregarded the evidence on rccord indicating that al all malerial times the Appellants had bcen in physical possession oflhe suit land and that the purchase olpart o1' it by the 4'h, 5'l'and 6rl'respondents honu./idc.

(7) The Leamed trial judge misdirecled himself by tailing to properly evaluate and analyse the evidence on record and considering the Appellants' evidence and therefbre came to a wrong conclusion.

(8)The Learned trial judge erred in law' and l'act when he held that the Appellants are not entitled to the remedies sought.'

e respondents oppose the appeal and cross appealed on the fbllowing grounds:

'(l) 'fhat the decision of the not f'ully constituted LC lll courl. received as Exhibit P. E5 is no decision at all.

(2) A decision of the Lower court not endorsed by all members is no decision at alland no execution can issue on its strength.'

t the hearing of the appeal the appellants abandoned ground 2 and dropped spondent no.7 as a party to the appeal. 5.

# issions of Counsel

t the hearing of this appeal, the appellants were represented by Mr. Lumonya ndrew and Ms. Bushara Joanita. Mr. Baingana John Paul represented the l'' and "'i respondents, Mr. Alex Kabayo represented the 3'd respondent, Mr. Agaba Asaph presented the 4th and 5rh respondents and Ms. Atukunda Faith represented the 6th spondent. The parties agreed to adopt their conferencing notes on record in 6.

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tion to their submissions before cour1. In their confbrencing notes, the appellants d to argue grounds 1,3,4 and 6 together and grounds 5, 7 and 8 together. It is ppellants contention that PW I (appellant no. I ) in his testimony stated that the and measured approximately 3 acres. DW I (respondent no. I ) admitted this to e case in his evidence. The size of the land corrprised in the titles upon subsion adds up to 3 acres. That the specific size ofthe suit land is therefore proved e 3 acres ofland. be to

- upport ofground 4, the appellants' counsel contend that had the court visited the tus in quo, it would have ascertained that the kibanja covered the whole area of registered land. Practice Direction No. I of 2007 enjoins court to take interest in iting the locus in quo and among others matters, draw a sketch plan, if necessary, ing the hearing. They relied on the authority of Dissan Ssempala vs Ndagire & or. H. C. Civil A al No.45 of 201 ^I 20t4 UGHCLD 64 where the High urt held that it was irregular for the trial magistrate to delegate her judicial ction of determining the boundaries which would have been determined by sessing evidence at the locus in quo. It was fufther contended that the omission s fatal to the whole trial and filling in the gap by appointing court emissaries is curably inegular vitiating the whole proceedings. They also relied on the decisron Yowasi Kabieuruka v Samuel Byarufu (C. A Civil Appeal No. l0 of2008) I20l0l GCA 7 where court dismissed the appeal and ordered a retrial because the case at nd merited a visit to the locus in quoby court yet it neglected to do so - relation to grounds 3 and 6, the appellants' counsel contend that the learned trial dge disregarded the evidence on record that John Kibuuka was a customary nant/kibanja holder on the suit land which occasioned a miscarriage of justice. nder section 29 (l)(a) (i) of the Land Act, the appellants are lawful occupants of e suit land as they are occupying the same under the repealed Busuulu and Envujjo w of 1928. It was PWI's testimony that John Kibuuka was a kibanja owner on the uit land who used to pay busuulu. The evidence to that effect was admitted in court s Exhibit Pl. When Eroni Nagadya passed away, respondent no. I started receiving usuulu from the late John Kibuuka which fact was never disputed. They referred to ction l( I ) of the Land Act to define a customary tenant and the authority of dirnwibo Sande & 3 others v Allen Peace Am al No.65 of 20ll 2014 UCCA 46. alre C. A. CivilA 8.

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- appellants' counsel further submitted that the appellants were in physical ession ofthe suit land at the time ofthe purchase ofthe land by the respondents , no.4, no.5 and no. 6. Hence the respondents are not bona.fide purchasers of e without notice because they had prior notice of possession. This was not uted by DW2 (respondent no.l) in his testimony before court. - appellants' counsel submit with regard to grounds 5, 7 and 8 that the l'indings he trial court are not supported by the evidence adduced in court. The learned ljudge disregarded the evidence on record. They cited the authority ofUeanda lwa sCo orations vs Bushen i Commercial A encies & 2 Ors C. A Civil al No. l0of20l0 2012 UGCA 3I. - reply to the ground l, counsel for respondent no. I and no. 2 submits that pondent no. I did not admit that the late Kibuuka John occupied 3 acres. He rather ted that he was occupying and still occupied his entire kibanja. There is no way late John Kibuuka could have occupied the entire suit property if all the parties ree that part of the Iand containing burial grounds was retumed to the estate of the Aron Nagadya. PWI could not tell the size of the suit land because he had never h{d it measured. ln addition, respondent no.4 and respondent no. 5 submit that the qLsuulu tickets did not indicate the size of the kibanja interest. The submission of cfunsel for the plaintiffthat the certificates oftitle to the suit property when added up amount to 3 acres is not tenable and was never raised at the hearing. Counsel for rtspondent no. 6 reiterated the same. - n reply to ground 3 counsel for all the respondents submitted that this issue was ever raised during trial. The respondents agreed that the late John Kibuuka had a ibanja on the suit land, and this was never contested. What was in issue was the ize of land his kibanja occupied and whether the deceased had purchased ^a eversionary mailo interest The parties also agreed that Plots I ,l57, I 159 and I 163 ere registered in the names of the late John Kibuuka. However, counsel for espondent no. 4 and respondent no. 5 submits that the appellants are not customary enants on the one acre of land as they did not lead evidence to prove that the land as held or controlled under any custom. They relied on the case of Isaaya Kalya

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and 2 others v Moses Macekenyu Ikagobya (Civil Appeal No. 82 of 2012), [2014] **UGCA 25.**

- 13. In relation to ground 4, counsel for respondent no. 1 and no. 2 submits that the visiting of the *locus in quo* and coming up with a sketch map was an initiative of counsel for the appellants in an attempt to come up with an *ex-cura* settlement of the matter. The sketch map was never sanctioned by court nor adduced in evidence. They further contend that not every dispute requires a visit to the *locus in gou* by court and this case did not require one. They relied on the judgment of Galabuzi Paddy v Nsegiyunva Karoli, CA. Civil Appeal No. 84 of 2012 (unreported). - 14. Counsel for respondent no.4 and no.5 submitted that court never directed the parties to conduct a visit of the *locus in quo*. That it was counsel for the appellants who prayed that the report prepared by Mr. Cornelius Mukiibi be relied upon instead of the court going to visit the *locus*. This report was prepared when all parties and their Counsel were at the *locus in quo* and was consented to by the all parties. Further, a visit to the *locus in quo* should not be intended to fill in the gaps in the evidence of the parties. They relied on the authority of Dixo Ejakant Ekojot vs David Okiru, H. C. C. A No. 301 of 2016 (unreported) where court held that the conduct of a *locus in quo* is not mandatory and it is done in only deserving cases which is majorly to ascertain, clarify, confirm or seek explanations. It is never intended that the visit is used to fill gaps in the evidence for either party. Counsel for respondent no. 6 submitted that the trial court considered the sketch map in its judgement. - 15. In reply to ground no.5, counsel for respondent no. 1 and no. 2 submitted that PW1 in cross examination stated that he was present when the late John Kibuuka handed over 1 acre of land to the 5^th defendant but admitted that he never attended other meetings relating to the kibanja. That the subdivision was agreed to by the deceased and was only objected to by appellant no.1. They referred to the evidence of DW3 (respondent) who testified that appellant no. 2 was consulted during the due diligence and supplied to him bricks during construction. Respondent no. 5 testified that appellant no.1 helped him clear the bush on his land before he was served with court process. That this conduct is consistent with an agreement for the sub-division and sale of the land. Counsel for respondents no.4, no.5 and no.6 reiterated the above submission.

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- ly to ground 6, counsel for respondent no. I and no. 2 contended that the llants are still in occupation ofthe land that used to be the kibanja of their late er. This portion of land did not cover the entire land and the appellants were n their reversionary interest in the suit land as agreed. Appellant no. l was aware respondent no.4 and respondent no.5 had bought the I acre of land his father retumed to the Ndiga clan. At that time their father had no interest in the land hased. He had a mailo interest in land comprised in Block 192 Plots I 157, I 159 1163. Respondents no.5 and no.6 adduced evidence ofdue diligence in their imonies and that the evidence of the appellant no. I and no. 2's participation rn clearance of the bush for the respondent no. 5 and providing bricks to the pondent no.6 fbr construction indicated that they were aware and in agreement to sub-division and sale. - unsel fbr respondent no.6 subrnitted that the appellants f-ailed to prove their egation of fraud against respondent no.4, respondent no.5 and respondent no.6. relied on the authority of David Saiiaaka Nalima vs Rebecca Musoke, (C. A No. of 1985 1986 UGSC I2. He submitted that the respondent no.6 carried out all necessary due diligence before purchasing the land. He talked to appellant no.2 o informed him that the land he was intending to buy was not part of the suit perty. That appellant no.2 also supplied to him building material while he was nstructing his house on the land. Counsel funher submitted that PWI testifled fore court that respondent no.6's house is situated on part of the land that was turned to respondent no. I by John Kibuuka and it was not part of the encroached nd. Counsel for the respondent no. 6 turther contended that PW I told court that the pellants only added respondent no.6 as a party to the suit because court told them do so. - ounsel for respondent no. 3 adopted the submissions of respondent no. I and spondent no. 2 in regard to grounds 1,3,4,5 and 6. - n reply to grounds 7 and 8, all counsel fbr the respondents submitted that the leamed rial judge properly evaluated the evidence on record and arrived at the right ecision. Therefore the appellants were not entitled to the remedies sought. They rayed that this court dismisses the appeal with costs.

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s is a first appeal. This court is required to re-evaluate the evidence and come up its own tindings pursuant to Rule 30 (l) of the Rules of this Court. See Fr. censio Bemu isa & Ors vs Eric'fibebaa a Su reme Court Civil A al No. ¹⁷ 002 2004 UGSC I8. I shall proceed to do so

# I

- e appellants in the amended plaint claimed that the late John Kibuuka was in session and the holder of a kibania interest measuring 3 acres comprised in Block 2 plot 57 belonging to the late E. Nagadya. That John Kibuuka later purchased s interest from the respondent no. I . - I (appellant no. l) in his evidence at page l0-l lof the record ofproceedings rn trial court testified that the Kibanja interest of the late John Kibuuka who was s f'ather measured approximately 3 acres. Upon cross-exarnination at pages 54-55 the record of proceedings of 20'r' October 201 4 in the trial court, PW I stated that e size of the portion of the deceased's interest in Exhibit P3 was not defined. This as due to the fact that the land had not been surveyed yet. Exhibit P3 is the reement between respondent no. I and the late John Kibuuka tbr the purchase of e latter's kibanja interest fiom respondent no. l. The parties entered into the said reement on lgtr'October 1982. The agreement does not state the size of the land. - t pages 66-68 of the record of proceedings of the trial court of 20tr'October 2014, e also stated that the land was three acres but John Kibuuka returned one acre to espondent no. I because it contains burial grounds. That they remained with two cres. DWI (respondent no. l) in his testimony appeared not to know the actual size f the land that was occupied by the late John Kibuuka's kibanja. At page 38 of the ecord of proceedings of 8'r'April 20 l5 in the trial court, he stated that he did not now the size ofthe kibanja but could estimate it to about 2 acres or L5 acres out of e 5 acres ofthe land that belonged to the estate ofthe late Eroni Nagadya. Besides

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vidence ofthe above witnesses, there is no other evidence relating to the actual ofthe subject land. the

refore, the trial court properly arrived at the conclusion that the evidence lable on record does not confirm or determine the specific acreage of the suit . The first ground fails

# 3

lation to ground J, it was never in contention whether the late John Kibuuka ibanja holder on the land that belonged to the late Eroni Nagadya. However, there no so such altemative prayer, as claimed, in both the original and amended plaint tions fbr relief. I would not fault the learned trial iudge fbr not making such ^a claration. w{s a kibanja holder on the land belonging to the estate of the late Eroni Nagadya. t" Wfat was in contention was the size of the kibanja and the mailo interest he may haive agreed to receive. There is sufficient evidence on record that John Kibuuka was a

# d4

garding the issue of tailure to visit the locus in quo by the trial court, I do not find ch an omission to be a misdirection of the trial court as submitted by the appellants. e object of the visit of the locus in quo is well settled. Sir Udo Udoma CJ (R.l. P)) Mukasa v. U anda 1964 EA 698 at ^a e 700 held that:

'A view ofa locus in-quo ought to be, I think. lo check on the evidence already given and. where necessary. and possible to have such evidence ocularly demonstrated in the same way a court examines a plan or map on some fixed object already exhibited or spoken of in the proceedings. . .'

lso in Yeseri Waibi v. Edisa Lusi Byandala U9821 HCB 28, which was cited by his court in Yowasi Kabisuruka v. Samuel Byarufu. C. A. Civ. Appeal No. l8 of 008 201 0 UGCA 7 it was held that;

> '1'he practice of visiting the locus in quo is to check on the evidence given by witness and not to flll the gap tbr then

> > Page 9 of 16

the trial magistrate may run the risk of making himsell a witness in the case .....'

- ould follow that visiting the locus in-quo by court is not mandatory. Court has discretion to decide whether it is necessary to visit the locus in quo given the mstances of the case. In this instant case, the failure to visit the locus in quo did occasion a miscarriage ofjustice. The evidence adduced in court was sufficient he trial courl to determine the issues before the court. the - appellants contend that had the court visited the locus in qao, it would have rtained that the late John Kibuuka's kibanja covered the whole area of the istered land. This is not true. That would require a surveyor's report. John uuka had given up one acre ofthe land which contained the burial grounds ofthe iga clan, which the appellants, in light of the amended plaint, were claiming. A it to the locus in quo is in addition to and cannot be a substitute for evidence ady given in court. The sketch map the appellants are alluding to was not ibited and adduced in courl as evidence but was only alluded to by the parties in ir submissions as noted by the trial court. - appears that one of the reasons why the trial court decided to do away with the it of the locus in 4ao is because Mr. Lumonya (Counsel for the appellants), during e proceedings of l6'l' March 2016 in the trial court. prayed that the report prepared Mr. Comelius be relied upon instead of court going to visit the locus. Court lowed the prayer and noted that all the parties had agreed to the report. The report as never adduced into evidence. - would hold that ground 4 has no rnerit. ,

# d5

Wl testified that upon the death of Eroni Nagadya, respondent no.l approached the ate John Kibuuka with an offer of sale of the mailo interest to the deceased. To that nd, in 1982, the late John Kibuuka entered into an agreement with respondent no. ^I orthe purchase of the land at a consideration of UGX 80,000. According to the greement, this was the land where Benedicto Ssalabwa and Lawrence Nabbamba's ho ob Th he es were situated. The size of the kibanja was not stipulated in the agreement. late John Kibuuka made a total payment of UGX 70,000. According to PWl, tated that the balance of UGX 10,000 on the purchase price was to be paid upon ining the certificate of title to the land. However, this did not happen.

- 3. Th di th pl th trial court rightly rendered the agreement null and void because respondent no. I not have the capacity to dispose of land belonging to the late Eroni Nagadya to late John Kibuuka at that time. It should be noted that the purported sale took e in 1982 while respondent no. I and no.2 obtained letters of administration to estate ofthe late Eroni Nagadya in 2006. - t d a I t ( d 4,4 te a cording to the proceedings in the trial court of 8't' April 20 I 5 from page I 2, DW2 tified that upon obtaining the letters of adnrinistration in 2006, a survey of the ire land was carried out in the presence of respondent no. l, respondent no.3, llant no. 2, appellant no. 3 and other people. That a meeting was held thereafter th the late John Kibuuka whereupon it was agreed that he only had a kibanja erest on the land. It was agreed between John Kibuuka and the administrators of estate of the late Eronii Nagadya that the fbnner would be given 50 decimals .050 acres) of the land. However, appellant no. I and appellant no.2 were in sagreement. This was never challenged by the appellants. Three plots of the land ere registered in the narnes of John Kibuuka. Exhibit D2 (a). (b), (c) contains the tails of the land. Plot 159 measuring 0.047 hectares, Plot ll63 measuring 0.047 d Plot I 157 measuring 0. 107 hectares totalling 50 decimals as agreed upon tween the parties. It should be noted that the appellants occupy these plots ofland ough they are not in possession of the certiflcates of titles. - 35. Wl also stated that the late John Kibuuka retumed I acre from his kibanja to spondent no. I because it contained burial grounds of the Ndiga clan. Appellant o.l while testifying before the trial court in the proceedings of 20'r'October 2014 tated that his father (John Kibuuka) told him that respondent no. I approached him nd asked him to give hirn back one acre of land that was his ancestors' cemetery nd that he was not supposed to sell that land. That his father returned the land to espondent no. l. At page 4l of the record of proceedings of 26'r'May 2014, when sked by court if the appellants still had a claim over the one acre of land handed ver to respondent no. l, PW I stated that both parties (John Kibuuka and respondent

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) had come to that agreement therefore they had no claim over that particular . On cross examination, at page 66-68 of the record of proceedings of 26'h May , PWI stated that he was present as John Kibuuka returned the I acre of land to ondent no.4.

- ould be noted that John Kibuuka's original claim in H. C. C. S. No.385 of 2008 for two acres of land that were part of the land forrnerly known as Kyadondo k 192 Plot 52. Under paragraph 4 ofthe plaint, he averred that his kibanja inally comprised of three acres but he surrendered one acre of the land that tained the defendant's grave yard. However, when the appellants, being the inistrators of the estate ofJohn Kibuuka amended the plaint they claimed 3 acres land. Exhibit D4, executed by John Kibuuka and witnessed by appellant no.l icates that indeed John Kibuuka surrendered I acre from his kibanja to Ndiga n. He stated that the late Eroni Nagadya obtained the land as a beneficiary fiom idow Esiteri Alinabe Bisinga which houses the Ndiga clan burial grounds. cording to the evidence on record, it is frorn this land that other three plots on the it property were created. Since this land was retumed to the estate of the late Eroni gadya, the appellants had no interest in the same and therefbre the respondents d not need to seek their approval to sub-divide this land. - is ground therefore fails in relation to the land that was surrendered by John ibuuka on which the plots of the respondents no.4,5 and 6 are situate. - hether or not there was an agreement between the late John Kibuuka and the ministrators of the estate of the late Eroni Nagadya with regard to a sub division f the mailo interest it was not necessary in law for John Kibuuka or his successors title to consent to a sub division of the mailo interest in this land for as long as it mained in the names of the administrators of the estate of the late Eroni Nagadya.

## nd6

n relation to ground 6, I find no basis to fault the decision of the trial court. The eamed trial judge held that the appellants had failed to prove the fraud alleged or hat respondent no. 4, respondent no.5 and respondent no.6 are not bona .fide urchasers for value without notice. It was established by the evidence of both the

Page 12 of 16

llants and the respondents that John Kibuuka had relinquished any interest tn ne acre of land that was subsequently acquired by the respondents no. 4, 5 and he appellants were not in physical occupation ofthe said plots of land as asserted is ground of appeal. the 6. in

- appellants t-ailed to establish a claim against the respondents. PWI (appellant ) testified that respondent no.4 bought the land that was returned to respondent . He stated that he was present when respondent no.4 was given the land and the land was bushy with graves. It should be noted that John Kibuuka had nquished all his rights and interest in this land when he returned it to respondent I . The dealings on this Iand by the administrators of the estate of the late Eroni gadya were no longer his concern. - page 2 of the record of proceedings of l6'h march 2016, respondent no.4 (DW2) tified that he and his wife (respondent no.5) are the registered owner of land rnprised in Block 192 Plot ll6l located in Buwaate. They bought the land from arles Mureeba for a consideration of UGX 45,000,000 who had purchased the d fiom respondent no.l. The land was still registered in the names of respondent I and respondent no.2 as administrators of the estate of the late Eroni Nagadya. at they carried out the due diligence before the purchase of the land. He stated ,at the LC I chairperson informed him that the land he was buying was released to e Ndiga clan but taken care of by the administrators of the estate of the late Eroni agadya. That appellant no. I helped him in the clearing ofthe bush on the land.

urther, respondent no.6 (DW3) in his testimony in the proceedings of l6th March 016, stated that he is the registered owner of land comprised in Block 192 Plot 166 located at Buwaate. He bought the land in November 201 l. From the evidence e gave in court, he carried out all the necessary due diligence before the purchase f the land. He stated that at the time of sale, the land was registered in the names of espondent no. land respondent no.2. He turther stated that before the purchase of he land he talked to appellant no.2 who is his immediate neighbour. That Joseph uliika informed him that there was an ongoing case about the suit land but that the and he intended to buy was for respondent no.l and that he was using the land as urial grounds. He told him that he had no issues with the portion of land that he

ded to buy. This was never challenged by the appellants. That appellant no.2 lied him building materials during the construction of his house on the land.

- ing cross examination of PWI by Counsel for respondent no. 6 at pages 213 ofthe record ofproceedings of2 ^I'r October 201 4, PW I stated that John Kibuuka e back one acre of his kibanja to respondent no. I . He knew the location of this and it is upon this land that the respondent no.6 constructed his house. At page ofthe record ofproceedings of2l't October 2014, when asked by court why the ellants had sued respondent no.6, PW I stated that it was court that had decided they sue respondent no. 6. Upon being asked if the house of respondent no.6 on the encroached land, PWI stated that it was not. He emphasized that the land t respondent bought was not pan ofthe 2 acres that they had sued for. - light of the above, the learned triat judge properly arrived at the conclusion that pondent no.4, respondent no.5 and respondent no.6 bought the land bona fide. e appellants have no clairn whatsoever against the above respondents. - is ground has no merit. - light of the fact that the above grounds have been answered in the negative, ounds 7 and 8 are without merit. I find that the leamed trial judge properly aluated the evidence on record and arrived at the right conclusion.

## n

would dismiss the appeal with costs here and below.

## Appeal

## dsland2

he grounds will be handled jointly as they are inter-related. From Exhibit P.5 udgement of the Kira Urban Executive Cornmittee LC III), it is indicated under aragraph I that matter was filed in the courl on 20th June 2006 upon referral by the eputy RDC Kasangati. John Kibuuka brought this case against respondent no. l. is claim against him was that he had bought land measuring 2 acres from the

Page 14 of 16

respondent no.1. The court ruled in favour of John Kibuuka and ordered respondent no.1 to give John Kibuuka signed transfer forms in respect of the land and to pay a compensation UGX 150,000 for crops destroyed by him. John Kibuuka was ordered to pay the outstanding amount of UGX 10,000 on the purchase price. The judgement was signed by only three members of the court.

49. Section 4 (2) of the Local Council Courts Act, 2006 states:

The local council court of a town, division or sub-county shall consist of five members appointed by the town council, division council or sub-county council on the recommendation of the respective executive committee.

- 50. The quorum of such a court was three members. Three members signed the judgment. That in itself would not be unlawful *per se* unless those members had not been present at the hearing of the case. It was not essential that a decision of that court had to be endorsed by all the members. It is only those members who were present at the hearing of the case that should participate in decision making including signing the decision of the court. The two grounds of cross appeal would fail. - 51. However, the LC111 court did not have the jurisdiction to try the case. In matters to deal with land, the village courts are the courts of first instance. Section 10 (1) (e) of the Local Council Act, 2006 states: $($

$(1)$ Subject to the provisions of this Act and of any other written law, every local council court shall have jurisdiction for the trial and determination of— (e) matters relating to land.'

## 52. \$ection 11 of the Act provides:

'(1) Every suit shall be instituted in the first instance in a village local council court, if that court has jurisdiction in the matter, within the area of whose jurisdiction— (a) the defendant actually resides at the time of the commencement of the suit; or (b) where the cause of action in whole or in part arises; or (c) in the case of a dispute over immovable property, where the property is situated.

- t of the above provision, the village local council court is supposed to be the of f-rrst instance in land matters. Section 32 (2) (a) of the Act provides that an al fiorn the judgment and orders of a village local council court shall lie to the sh local council couft. Section 32 (2) (b) provides that an appeal f'rom the ent and orders ofa parish local council court shall lie to a town, division or county council cour1. The Kira Urban Executive Comrnittee LC lll Court, g a town council court is a second appellate court and therefore had no original sdiction to try the matter. - llows that the judgment of the Kira Urban Executive Committee LC III Court tained in exhibit P.5 was null and void but not for the reasons advanced by the ss appellants.

I

Obura and Muhanguzi, JJA, agree this appeal is dismissed with costs here and low. The cross appeal is allowed with no order as to costs as the grounds vanced did not succeed.

, dated and delivered at Kanrpala this lr< day of <i-\*- , 2019

drick ^b onda-Ntende .lustice of Appeal

Page 16 of 16

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Corom: Egondo-Ntende, Oburo & Muhonguzi, JJA)

CIVIL APPEAL NO. 154 OF 2OI7

rising from the judgement and decree in High Court Civil Suit No.385 of 2008 (Namundi, J.) dated 10th April 2017)

- . LAWRENCE NABAMBA 1 - . JOSEPH MULIIKA..... ............ APPELLANTS 2 - . IMEIDA NANYUME KIBUUKA (as administrators of the estate of the late John Kibuuka) 3

## VERUS

- 1. HERBERT SEMAKULA MUSOKE(as administrator of the estate of the late E. Ngadya) - 2. NAN ANDWE JUSTINE KIZITO - 3. FLORENCE MIREMBE NAGADYA - 4. ROBERT SERUWAGI - 5. HETLEN NASSUNA SERUWAGI - 6. ANKWASA BRIAN...... ........... RESPONDENT

# JUDGMENT OF EZEKIEL MUHANGUZI, JA

have had the benefit of reading in draft the judgment of my learned brother Hon. Mr. Justice Fredrick Egonda-Ntende, JA. I agree with his decision and for the reasons he has advanced that this appeal ought to be dismissed with costs here and below.

Dated at Kampala this e Itday of........... \*.\e--.....2019.

,A

Ezekiel Muhanguzi Justice of Appeal

### THE REPUBLIC OF UGANDA

o

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Obura & Muhanguzi, JJA)

### CIVIL APPEAL NO. 154 OF 2017

| | 1. LAWRENCENABAMBA<br>) | | |--------|------------------------------------------------|---------------------------| | | 2. JOSEPH MULIIKA<br>) | APPELLANTS | | | 3. IMELDA NANYUME KIBUUKA ) (As administrators | | | | of the Estate of the Late John Kibuuka) | | | VERSUS | | | | | | | | | ,1. HERBERT SEMAKULA MUSOKE | MAKANGA (As administrator | | | of the Estate of the Late E. Nagadya) | ) | | | 2. NANTANOWE JUSTINE KIZITO | ) | | | 3, FLORENCE MIREMBER NAGADYA | ) | | | 4. ROBERT SERUWAGI | RESPONDENTS<br>) | | | 5. HELLEN NASSUNA SERUWAGI | ) | | | 6. ANKWASA BRIAN | ) | | | 7. THE COMMTSSTONER LAND REGTSTRATTON ) | | | | | |

(An appeal from the judgment and deuee ol the High Court of Uganda (Namundi, J.), dated lN April 2017)

#### JUDGMENT OF HELLEN OBURA, JA

I have had the benefit of reading in draft the judgment of my brother Egonda-Ntende, JA and ^I agree with his findings and conclusion that this appeal be dismissed with costs here and below for lack of merit.

ⁿla,c / Dated at Kampala this.....9.1.. Oay of... S-J..r-.r.c-, 2019.

Hellen Obura

JUSTICE OF APPEAL

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