[2021] UGHC 4

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA**

# **CIVIL APPEAL NO. 074 OF 2013 (Arising out of Civil Suit No. 070 of 2009Iganga Court)**

# **MAYUGE DISTRICT LOCAL GOVERNMENT KITYERERA SUB COUNTY COUNCIL……..….……. APPELLANTS**

## **VERSUS**

**HAJI KADIRI BASALAKI.…………………………….….. RESPONDENT**

## **JUDGMENT ON APPEAL**

## **BEFORE HON. LADY JUSTICE EVA K. LUSWATA**

#### **Introduction and Background**

This is an appeal from the decision of His Worship Kintu Imoran Isaac Magistrate GDI Iganga, delivered on 26/08/2016.

Hajji Kadiri Basalaki the respondent was the plaintiff in the lower court in which he suedthe appellants for recovery of unregistered land situated at Bugade Kityerera Sub County, Mayuge District (hereinafter the suit land) on which he had built a Mosque and school. He claimed that the appellants through their agents unlawfully entered upon the suit land on which they developed a market, which he regarded trespass. In defence to the suit, the appellants contended that the suit land which was a donation to the Iganga District Administration (their predecessor in title), did not include Basalaki's Mosque and school, and that Basalaki was aware when the local administration put up developments. They in addition contested the agreement through which Basalaki purchased the suit land and, argued that the suit was time barred.

In his judgment, the trial Magistrate found that Basalaki respondent proved his claim and the doctrine of laches did not apply to him. He found the appellants to be in trespass and awarded Basalaki vacant possession of the suit land with a permanent injunction against the appellants with damages. The appellantsbeing dissatisfied with that decision presented this appealwhich is based on three grounds that:-

- **i) The learned trial Magistrate erred in law and fact when he held that the suit land was the property of the respondent** - **ii) The learned trial Magistrate failed to properly evaluate the evidence and arrived at a wrong decision** - **iii) The learned trial Magistrate erred when he failed to hold and find that he respondent was guilty of, or caught up with laches given the long period in which the appellants had undisturbed occupation of the suit land**

#### **Duty of the Court**

My powers and limits as a first appellate Court are well documented. I must subject the evidence and all materials adduced at the trial to a fresh and exhaustive scrutiny and then draw my own conclusions. In doing so, I must still have due regard to the judgment which isthe subject of appeal. Even so, I am not bound necessarily to follow the trial Court's findings of fact if it appears that the Court clearly failed in some way to take account of particular circumstances and probabilities and as a result, came to a wrong judgment. I hasten to add that my conclusions may be limited by the fact that I did not see or hear the witnesses and due allowance shall be made in that regard. See for example, **Coghlan Vrs Cumberland (1891)1 CH 704,EphraimOngom&AnorVrs Francis Benega SCCA No. 10/1987 [1993] Kalr 86 (following R Vrs Pandya (1957) EA 336** and **Selle & AnorVrs Associated Motor Boat Company Ltd &Anor (1968) EA 123.**

Following my order, counsel for the parties filed written submissions. Mr. Onesmus Tuyiringire presented the appeal which was opposed by Mr. Mangeni Ivan G. In his submissions, Mr. Tuyingire abandoned the second ground and also filed a rejoinder to Mr. Mangeni's submissions. I will accordingly consider the submissions of both counsel as presented.

#### **Resolution of the grounds of appeal:-**

#### **Ground 3**

It was argued for the respondent that the Magistrate erred by not finding that suit was time barred. Counsel submitted that the appellants and their predecessor in title had used and were in occupation of the suit land for long, and as such, Basalaki was caught up by laches.

In his decision, the Magistrate found that on the evidence on ground, the appellants were in continuous trespass and as such, the principle of laches was inapplicable. Both counsel seem to agree that the cause of action was in trespass, and it was successfully argued for Basalaki that, being a continuous trespass, the doctrine of laches would not apply to bar his claim. It was held in **Justin EMN Lutaya Vs Stirling Civil Engineering Ltd SCCA at 17 No. 11/2002** that;

*"..... where trespass is continuous, the person with the right to sue may subject to the law on limitation of actions exercise the right immediately after the trespass commences, or any time during its continuance or after it has ended".*

However, although the action was based on trespass, in his pleadings, Basalaki pleaded for recovery of the suit land, and in addition sought for a declaration that he is its rightful owner, as well as a permanent injunction against the appellants for further interference. Since he also sought for mense profits, the implication would be that he lost use of the land due to what he deemed wrongful occupation by the appellants.

All the above point to the fact that Basalaki by his pleadings sought to recover land from the appellants. His claim would thereby be subject to both limitation and laches. It is true that a court is bound to confirm whether a claim is barred by limitation from the pleadings.

In paragraph 4 of the plaint, Basalaki pleaded to have purchased the suit land in 1984 from one BarazaBululu. He continued in paragraph 6 that the appellants unlawfully entered thereon and developed a market and lock ups in 1998. He maintained those facts throughout his evidence. It is deemed thatthat is when he became aware of the encroachment therein and thus had 12 years within which to contest the appellants' entry and occupation.

Basalaki filed his suit on 15/1/2007 nine years after he discovered the encroachment. The Magistrate was correct to find that he was not caught up by limitation. He testified that after he became aware of the appellants' lock-ups, he reported the matter first to Bukyereire LCI, then to the Urban Officer, the Sub-County Chief of Kityerera as well as the Iganga District Officer. For that reason, I find that he was neither negligent nor unreasonably delayed in accessing his rights. He was therefore not guilty of laches.

Ground 3 accordingly fails.

#### **Ground one**

The Magistrate consideredthe evidence in court and at locus before making the decision that Basalaki owned the suit land. He was more impressed with his witnesses over those of the appellants who in his opinion did not know the facts of the case, and their evidence substantially challenged in cross examination.

Basalaki was clear in his evidence that he purchased about two acres of land for Shs. 30,000 from Baraza Bululu in 1984 in the presence of four people, and immediately took its possession. He gave its specifications and named his neighbours and adduced an agreement **(PEX1)** to confirm the purchase. That he first used the land for brick laying and recreation and it is on the part that he used as a football pitch, that the appellant encroached. The Magistrate observed and included a vast empty space in his map from the locus visit.

Basalaki's witnesses substantially corroborated that evidence. PW2 and PW4 stated that they were present on 16/5/1984 during the sale. PW4 wrotethe purchaseagreement, and PW2 signed as a witness. Basalaki confirmed that Bululu was in possession of the suit land at the point the agreement was made and PW3 stated that by the time he settled in the area in 1972,Bululu was in possession of it. In contrast, DW1 stated that upon the request of several local people, Mutaka( Elder) Samuel Lukusi showed them a piece of land, upon which a market was constructed. I do agree with respondent counsel's submissions that he was not clear whether Lukusi had powers to give out the land and whether he did so as a donation or sale to DW1 and his colleagues. If the court were to believe that it was a donation, no deed or other similar document was adduced in court or proof that Lukusi completely and irrevocably relinquished his interest in the suit land to DW1. Even then, since it was shown that it is DW1 who received and cleared the suit land, it was not clear how or when DW1 subsequently passed on his interest to the appellants.

It is also clear on the record that DW1 did not know the size and actual location of the land he said he received from Lukusi. Indeed as pointed out for Basalaki, it is inconceivable that a market was set up in 1969 but allocations for lock ups were not made until 1992,a good 23 years later. Also DW1 admitted that in 1969 the area in question was known for sleeping sickness and it is doubtful that the appellants' predecessors in title could have maintained a market in the area.

DW1 admitted that he knew Bululu very well as a local hunter, and that he had lived in the area since 1970. Although he claimed Basalaki purchased his land from one Mafura in 1984, he admitted he was not present during the sale and did not know his previous properties or the size he sold to Basalaki. He only gave estimates of the size of the market and admitted that after clearing the land to accommodate it, he did not develop the market or put boundary marks. That would negate the evidence that he or the appellants received the suit land as a donation from Lukunsi. DW1 then admitted that Basalaki's school was near the market. Basalaki's evidence that he purchased the land from Bululu in 1984 thus remained unchallenged.

Although DW2 stated he was present when land was being taken over by the local government, he knew little about its history and original ownership. **PEX 3** dated 7/2/1992 was tendered during his cross-examination. In it, the Urban Officer of Iganga District Administration informed the RC III Chairman Kityerera that the Bugade Market had acquired land for development in 1988, the year Basalaki first noticed the encroachment. That evidence seriously contradicted DW1's testimony that the market land existed since 1969, and at the same time confirmed that any claim the local government would have, would be later than that of the respondent, who showed that he purchased his interest four years previously in 1984.

DW3 was not very helpful either. His knowledge of the market dated back only to 1992 when he was assigned to carry out measurements of its boundaries and allocate lockups. He conceded he did not know how the market was acquired and learnt of its boundaries from elders that he failed to name. Although he claimed Basalaki was present during the exercise, he had no report or a list of those present. The Magistrate observed and noted that he was very evasive and exhibited a doubtful demeanour. As pointed out by Basalaki's counsel, both he and DW4 being beneficiaries of the lockups, their evidence would be treated with caution as "interested parties". Further DW4 did not explain how he acquired his lock up despite the fact that DW3 testified that he allocated only to those who made payment.

The Magistrate gave a detailed description of what he observed at the locus. Much of it matched what Basalaki had testified in court. On the other hand, Sulaiman Negule the sole witness who testified at locus was never called to testify in court. His evidence should thus never have been added to the record. **Kwebiha Emmanuel & Anor Vrs Furugensio Lwanga Ors HCCA No. 21(2011)** (Masindi H/Ct) and **Practice Direction No. 1/2007** refers. Even then, the Magistrate noted and recorded that the appellants' representatives disagreed on the boundaries. He noted the existence of a big Mosque and a school part of which lies in the suit land. He was convinced of the possibility that the respondent intended to enlarge the school by providing recreation facilities.

On the whole, the Magistrate observed and noted that the defence witnesses were evasive and their evidence weak and contradictory. In contrast he considered the testimonies of Basalaki and his witnesses as strong and well backed up by evidence. I agree with his findings.

The evidence that the plaintiff owned the suit land was strong and well supported by documentary evidence and what the court observed on ground. There was no error in judgment on that account and I find no reason to fault the Magistrate in that regard.

Accordingly ground one fails.

In summary, I have found no merit in the appeal. It is accordingly dismissed and the respondent shall have the costs of the appeal and of the court below.

I so Order.

**......................................**

**EVA K. LUSWATA JUDGE DATE: 29/03/2021**