[2025] UGHC 559

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL APPEAL NO. 06 OF 2025 (ARISING FROM CRIMINAL CASE NO. 148 OF 2024)

| | 1. MAYAMBALA KENNETH | | |----|----------------------|-----------------------------| | | 2. MIVITE MARK | <table> APPELLANTS</table> | | | 3. NALUBWAMA HARRIET | | | 10 | 4. TERUKANYA ALICE | | | | | VERSUS |

#### UGANDA....................... ......................................

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

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### Judgment

## Brief facts:

The Appellants were jointly charged, convicted and sentenced to four (4) months imprisonment for the offence of Forcible detainer contrary to Section $20$ 74 of the Penal Code.

It was alleged that the Appellants between March, 2023 and 2024 at Namwabula in Mpigi District, being in possession of land comprised in Mawokota Block 107 Plot 2 without any colour of right, held possession of it in a manner likely to cause a breach of the peace against Lubega Charles Lwanga, who was entitled by law to the possession of the said land.

The Appellants pleaded not guilty to the charge leaving the prosecution with the burden to prove all the ingredients of the offence beyond reasonable 30 doubt. (See: Woolmington v. DPP [1935] AC 462).

During hearing, Prosecution led evidence of 3 witnesses in order to prove its case and the defence led evidence of 6 witnesses in that regard.

Judgment was delivered on the 14^th April 2025 by the learned Senior Magistrate Grade one convicting the Appellants whereof she sentenced them to 4 (four) months imprisonment accordingly for the offence of forcible detainer.

Being dissatisfied with the said conviction and sentence by the Senior Magistrate Grade One, the Appellants appealed against the same as per a copy of the Memorandum of appeal dated 16^th April, 2025 wherein the Appellants raised 4 (four) grounds of appeal as follows: -

1. That he Learned Trial Magistrate erred in law and fact when she found that the defence of honest claim of right was not available to the

accused persons there by coming to a wrong conclusion causing a miscarriage of justice.

2. That the Learned Trial Magistrate erred in law and fact when she found that the suit land reverted to the estate of the late Matayo Kizza Bakaluba which is a subject of High Court Civil Suit No. 52 of 2022 pending hearing and determination thereby occasioning a miscarriage of justice.

3. That the Learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record regarding the fact of possession of the subject land before and after the complainant purchased it thereby occasioning a miscarriage of justice.

4. That the learned Trial Magistrate erred in law and fact when she found that the Appellants keeping hold of the subject land by whatever means knowing that someone else is entitled to the same is a breach of peace of the title holder and thereby reaching a wrong conclusion causing a miscarriage of justice.

The Appellants prayed that this Court be pleased to allow the appeal and set aside the conviction and sentence against them; and further that this Court be pleased to acquit the appellants.

#### Representation: 25

Counsel Tusiime Isaac appeared for the appellants and filed written submissions. The respondent was unrepresented in this appeal.

#### Duty of the first appellate court:

The duty of the 1^st Appellate court is to reappraise the material on record and 30 come up with its own conclusion. (See: Uganda v. Simbwa, Supreme Court Criminal Appeal No. 37 of 1995).

### Resolution of the grounds of appeal:

- It is also trite law that an accused person is convicted on the strength of the 35 prosecution case and not the weakness of the defence. (See: Israel Epuku s/o Achouseu v. R (1934) EACA 166 and the case of Akol Patrick & Others v. Uganda, Court of Appeal Criminal Appeal No. 060 of 2002). - Ground 1: That the Learned Trial Magistrate erred in law and fact when she 40 found that the defence of honest claim of right was not available to the accused persons there by coming to a wrong conclusion causing a miscarriage of justice. - Counsel for the appellants submitted that all the defence witnesses testified 45 that the late Ssalongo Kisitu Ephraim father to the Appellants acquired the suit land from the late Matayo Bakaluba who granted him vaccant possession of

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the land and certificate of title for Mawokota Block 107 Plot 2 which he transferred in his name in the year 2001. And according to DW1 Nalubwama Harriet she was among the appointed administrators who were granted letters of administration at Family Division in Makidye of her father's estate the late

- 5 Kisitu Ephraim. It was her testimony that their late father used to take them to the suit land to dig, he had a farm thereon and as administrators they continued to use the suit land for farming and other portions given to some beneficiaries. - 10 DW2, he testified that when they got to know about the application for the special certificate of title from the advert in the newspaper, they wrote to the Commissioner Land Registration notifying that they were in possession of the original certificate of title as evidenced by DEX6 a letter to Commissioner land registration dated 21/10/2021. That despite writing the said letter and - reporting the issue at hand to different offices, they have received no help 15 upon the duplicate certificate in their possession being cancelled without their knowledge as such they sought legal redress from the courts of law and are in occupation of the suit land to date. - I have carefully considered the evidence on record, the submissions for the 20 appellants, the law and authorities cited therein to resolve this ground of appeal. - The Appellants in this case raised a defence of claim of right which is provided for under Section 7 of the Penal Code Act and is to the effect that; a person is 25 not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in exercise of an honest claim of right and without intention to defraud. - In the case of Okello Oris Atama & another v. Uganda Criminal Appeal No. 30 0035 of 2013, Court held that;

"Claim of ownership is a civil right which should be allowed to be proved in a civil Court and should never be criminalized as this would amount to prosecution. The case is one of the many cases where land conflict have been criminalized and Courts of law are busy convicting accused persons who have the constitutional right to claim what they truely believe belongs to them. This state of affairs of criminalizing land disputes should come to an end as it is an abuse of court process and perverts the course of justice. It violates the rights of people and denies them the civil liberties to seek legal redress as civil remedies are very different from criminal liability. A person is not criminaly respects of an offence relating to property if the act done or omitted to be done by that person with respect

Also, in Nasibika Peter Wejuli v. Uganda [2010] UGHC 148, it was held that; for this defence to succeed, Court has to be satisfied that there was a possibility

to the property is done in execuse of an honest claim of right".


(a reasonable and not fanciful possibility) that the accused believed that the subject matter was his even if he was mistaken.

The appellants in their evidence stated that the suit land was purchased by 5 their late father Kisitu Ephraim from Matayo Bakaluba. That their father became the registered proprietor of the same in 2001 and they were in possession of the duplicate certificate of Title. That they subsequently were registered there on as their father's administrators in 2017 and the said land had been utilized by their father from 2001 and themselves to date.

It was the respondent's evidence on the other hand that he bought the suit land in 2022 and completed payment in 2023 where of he became the registered proprietor. That he bought the suit land from Willy Senabulya and John Mubiru the administrators of the estate of Bakaluba Matayo as evidence by PEX2.

The complainant upon purchase of the suit land never took possession as per PW1 and PW2's evidence and that of the appellants. The appellants on the other hand claim to have utilized the land since 2001 to date. The trial 20 Magistrate in her decision found that the appellants had no claim of right since their Letters of Administration had been revoked and Certificate title cancelled, however, she neglected the fact that the parties had a civil suit pending hearing and determination in the High Court over the suit land. As such, there still stands a dispute over ownership of the suit land that is yet to be determined as to who the rightful owner of the same is. Until then the 25 appellants who claim that their father bought in 2001 and are in occupation of the same cannot be said to have no claim of right.

I accordingly find that the Learned Trial Magistrate erred in law and fact when she found that the defence of honest claim of right was not available to 30 the accused persons there by coming to a wrong conclusion causing a miscarriage of justice. This ground of appeal hereby succeeds.

Ground 2: That the Learned Trial Magistrate erred in law and fact when she found that the suit land reverted to the estate of the late Matayo Kizza 35 Bakaluba which is a subject of High Court Civil Suit No. 52 of 2022 pending hearing and determination in the High Court thereby occasioning a miscarriage of justice.

Counsel for the appellants submitted that the Appellants are challenging the 40 process through which the Estate of the late Matayo Kizza Bakaluba and the Office of the Commissioner Land Registration reached a decision of cancelling their title without them being involved hence the subject of Civil Suit No. 052 of 2022; Mayambala Kenneth versus Mubiru John, Ssenabulya Willy and Commissioner Land Registration seeking for cancellation of the Special 45 certificate of title, reinstatement among other orders which suit is pending

hearing and determination before the High Court at Mpigi. And that the trial

Magistrate in this case failed to evaluate the evidence of ownership, possession, entry and intent to annoy hence reached a wrong conclusion.

It is my considered view according to complainant's evidence particularly 5 • PW2 that the suit land initially belonged to Matayo Kizza Bakaluba and it was later found out that he had distributed that land amongst his children among whom was Damiano Mukasa who was given 40 acres. Matayo Bakaluba applied for Letters of Administration for the said estate and became the registered proprietor to which PW2 did not contend. He also mentioned that only the 40 acres were taken off belonging to Damiano Mukasa one of the 10 children to Matayo Kizza Bakaluba and the 56 acres were still in the name of Matayo Kizza Bakaluba.

The appellants in the instant case stated that their father Kisitu Ephraim purchased the suit land from Matayo Bakaluba as such in case of cancellation 15 of the certificate of title the suit land would revert back to the estate of Damiano Mukasa and not that of Matayo Kizza Bakaluba who had already distributed part of his property.

Be that as it may counsel for the appellants relied on the case of Nyabero 20 Nyanchama v. Republic Criminal Appeal No. EO 21/ 2022 P.6, where the Court observed that; "the genesis of this suit is ownership of the suit land". The Court found that it lacked jurisdiction to determine matters relating to land ownership which are a preserve of the Land Courts. It added that it was not in dispute that there was an ongoing dispute in Court in which ownership 25 was being disputed and yet to be heard and determined. For that reason, the Court declined to entertain any questions as to ownership and acquitted the accused persons of the offence of forcible detainer.

Counsel in reference to the above authority prayed that this Court be pleased 30 to find that the Learned Trial Magistrate erred in law and fact when she found that the suit land reverted to the estate of the late Matayo Kizza Bakaluba which is a subject of High Court Civil Suit No. 52 of 2022 pending hearing and determination in the High Court thereby occasioning a miscarriage of justice and so be pleased to acquit the Appellants. 35

I concur with the submissions for the appellants and find that the contest in this matter stems from ownership of land and the issue of who the lawful owner of the suit land is still in dispute and yet to be determined by court. Therefore, this court has no powers to pronounce itself over the same in a criminal matter. The trial Magistrate therefore erred in finding that suit land reverted to the estate of the late Matayo Kizza Bakaluba which is a subject of High Court Civil Suit No. 52 of 2022 pending hearing and determination in

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the High Court thereby occasioning a miscarriage of justice. This ground of appeal hereby succeeds. 45

Ground 3: That the Learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record regarding the fact of possession of the subject land before and after the complainant purchased it thereby occasioning a miscarriage of justice.

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Counsel for the appellants submitted that it was the evidence of the Appellants that they have been using the suit land since 2001 when their late father was still alive to date while the Complainant claims to have purchased from the administrators of late Kizza Bakaluba Matayo the same in 2022/2023. And it was PW1's testimony, that he was not in possession of the land and at the time

he purchased it from the Administrators of the late Kizza Bakaluba Matayo he was never given possession as it was the Appellants in possession.

The Appellants even sued the complainant in Civil Suit No. 52 of 2022 on the issue of ownership and cancellation of title. Thus, the Learned Trial Magistrate 15 erred in law and fact when she failed to evaluate the evidence on record regarding the fact of possession of the subject land before and after the complainant purchased it thereby occasioning a miscarriage of justice.

20 As already discussed above, the issue at hand stems from a land dispute which in my opinion the trial Magistrate had no jurisdiction to entertain in the first place and her degrading that was erroneous. Handling this matter through a criminal case does not resolve the issues in contest. As such not evaluating the issues of possession of the suit land before and after purchase would majorly

relate to issues of ownership which are best determined under a civil suit. I 25 therefore do not fault the trial magistrate in that regard. This ground of appeal therefore fails.

Ground 4: That the Learned Trial Magistrate erred in law and fact when she found that the Appellants' keeping hold of the subject land by whatever means 30 knowing that someone else is entitled to the same is a breach of peace of the title holder and thereby reaching a wrong conclusion causing a miscarriage of justice.

Section 74 of the Penal Code Act, provides for the offence of Forcible detainer 35 and is to the effect that;

Any person who, being in actual possession of the land without right, holds possession of it in a manner likely to cause a breach of the peace, or reasonable apprehension of a breach of the peace, against a person entitled by 40 law to the possession of the land commits the misdemeanor termed forcible detainer.

Counsel for the Appellants submitted that the appellants have been in possession of the suit land since 2001 and cannot be held to be in breach 45 of peace of the title holder also the Complainant who purchased the suit land in late 2022 at the time when the Appellants were in possession of the same.


Counsel added that this was case that was fit to be determined in a civil case irrespective of the fact that the same was criminalized to defeat justice and prayed that this Court finds merit in this appeal, sets aside the conviction and

sentence and acquits the Appellants accordingly.

I concur with the submissions for the appellants in regard to this ground of appeal. This matter should have been determined through a civil suit and not a criminal case.

In a nut shell this appeal succeeds on three grounds, the conviction and sentence of the lower court are hereby set aside and the appellants acquitted of the charges of the offence of Forcible detainer contrary to Section 74 of the Penal Code. They are hereby set free with immediate effect unless still being held on any other lawful charges. I so order.

20 OYUKO ANTHONY QJOK JUDGE 23/06/2025

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