[2024] UGHC 876

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI

LAND CIVIL APPEAL NO. 0013 OF 2021 (Appeal from the judgment and orders of H/W Biwaga Selsa, Magistrate Grade I, Masindi Chief Magistrate's Court in Civil Suit No. 31 of 2012 delivered on 26^th day of February, 2021)

MBABAZI SIMON::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. KAMANYIRE WILSON 2. KWESIGA SAM:::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### **IUDGMENT**

#### **Background**

- Respondents/Plaintiffs filed suit the $\overline{a}$ against [1] The Appellant/Defendant for illegal sale of the suit land owned customarily as clan land (Basiita clan), permanent injunction, general damages of trespass among other reliefs. The suit land is situated at Kihuba village, [the present day of Karujubu Division, formerly Karujubu sub-county, in Masindi District]. - It was the Respondents' case that the suit land has at all times $[2]$ owned by the Basiita clan held in trust by the clan head for himself and on behalf of the other clan members. That upon the death of the previous clan head a one Baturumayo Kisoro Kibi in 1992, the 1^st Respondent was appointed heir and clan head and the said land was entrusted to him to hold it in trust for himself and on behalf of other Basiita clan members though at the time, it was occupied by Alurs who included Omilio, Samuel and Stefano Nyitto [Onyito] with the consent of the Basiita clan allegedly given by Baturumayo.

$\mathbf{1}$

- In 2008, the Respondents, learnt of the sale of a piece of land on $[3]$ the disputed land by the Appellant to a one Ogentho (Aginento) **Francis.** The Appellant who was of a **Mulanzi clan** (closely related to the Basiita clan) was subjected to a clan meeting where he allegedly accepted before the clan meeting that he was wrong in selling the suit land which was not his though he later changed and said that the suit land had been given to him by a one the Nyangireki. - The Respondents contended that during the course of events, the $[4]$ Appellant sold other parts of the suit land and alleged that they The Respondents contended that the were sold by **Nyangireki**. land in dispute measuring about 12 acres has never been owned by the late Nyangireki but is property of the Basiita clan and the late Nyangireki could not therefore sell it without notice and permission of the Basiita clan members. - The Appellant on the other hand denied the Respondents' claims $[5]$ and averred that the suit land measuring approximately 12 acres was originally owned by the late Baturumayo Kisoro Kibi individually and not Basiita clan. That during his life time, the late Baturumayo while sick, weak and elderly was abandoned by his Basiita clansmen, he allocated several portions of his land to Nyangireki Joyce, Kitali Joseph, the 1^st Respondent and the Appellant/defendant himself among others with each portion having well defined boundaries. The late Baturumayo's allocation of land to Nyangireki Joyce was as if he was rewarding her for availing the Appellant who took care of him until his death. That the Appellant further claimed that the $1^st$ Respondent sold his portion of land allocated to him by the late Baturumayo Kisoro Kibi to one Rubingi Edward. - Lastly, the Appellant contended that the Respondents being his $[6]$ maternal uncles want to grab the Appellant's land just because his father is of Mulanzi clan. That the Respondents were under the belief that a son to their sister cannot get land from the Basiita yet for his case, he had been in occupation of the land and it is where

$\mathbf{2}$

he has his matrimonial home. That therefore, his sale of the portion of land was bonafide as he had good title having acquired the same as a gift intervivos from the late Baturumayo Kisoro Kibi.

- The trial Magistrate on her part found that the suit land was $[7]$ initially bought by a one Stanley Bihanga who later left the land with Baturumayo Kisoro Kibi to take care of it for the Basiita (clan) who in turn, temporarily offered the same to the Alurs who included a one Stefano. That upon the demise of Baturumayo in 1992, the 1^st Respondent was appointed the next clan head and the last Alur on the land Stefano executed the handover of the land to the clan and it was received by the 1^st Respondent as the then head of the clan. She, the trial magistrate concluded that the suit land therefore belonged to the Basiita clan and that the purported sale of the land by the Appellant to Francis Ogentho [Aginento] and others without the consent and knowledge of the clan was unlawful. She in the premises entered judgment in favour of the Respondents in the following terms: - A declaration that the suit land customarily belonged to the $(a)$ Basiita clan. - The Appellant/Defendant illegally sold the suit land, the $(b)$ Appellant and the purchasers were trespassers on the land and cancelled the sale transaction between the Appellant and Ogentho [Aginento] Francis. - Cost of the suit were awarded to the Respondents. $(c)$ - The Appellant/Defendant was dissatisfied with the judgment and [8] orders of the trial magistrate, and he lodged the present appeal on the following grounds: - That the learned trial magistrate erred in law and fact when $\mathbf{1}$ she failed to properly evaluate the evidence on record thereby arriving at a wrong decision in Civil Suit No. 31 of 2012 that the suit land belongs to the Basiita clan to which the Respondents belong. - The learned trial magistrate erred in law and fact when she $2.$ totally disregarded the Appellant's evidence thereby arriving

$\overline{3}$

at a wrong decision in Civil Suit No. 31 of 2012 that the suit land belonged to the late Baturumayo Kisoro Kibi who gave the same to Joyce Nyangireki from whom the Appellant derives interest.

- The learned trial magistrate erred in law and fact when she $\mathfrak{Z}$ . found that PE 1 was illegally executed and did not pass a lawful interest to Francis Ogentho on part of the suit land. - The learned trial magistrate erred in law and fact when she $4.$ found that PE 2 was proof enough that the suit land was Basiita clan land and the same was returned to the $1^{st}$ Respondent, Kamanyire Wilson. - The learned trial magistrate erred in law and fact when she 5. found that DW2., Babyenda James and DW3, Kaliisa Solomon were not credible witnesses without lawful *iustification.* - The learned trial magistrate erred in law and fact when she 6. decreed land occupied by 3^rd parties like Anyoli Bosco, Nickson Okunya and David Isingoma who brought their interests from Nyangireki Joyce outside PE 1 without affording them a hearing.

## The duty of the $1^{st}$ Appellate Court

It is well settled that the duty of the first appellate court as is the $[9]$ case in the instant appeal is to review the record and evidence itself in order to determine whether the decision of the trial court should stand. In so doing court must bear in mind that an appellate court should not interfere with the discretion of a trial court unless it is satisfied that the trial court in exercising its discretion has misdirected itself in some matter and as a result, arrived at a wrong decision or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of discretion and that as a result there has been a miscarriage of justice, See Stewards of Gospel Talents Ltd vs Nelson Onyango H. C. C. A. No. 14 of 2008 and National Insurance Corporation vs Mugenyi [1987] HCB 28. The duty of this court therefore is to

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rehear the case on appeal by reconsidering all the evidence before the trial court and come up with its own decision.

### **Counsel legal representation**

[10] The Appellant was represented by Mr. Simon Kasangaki and Joachim Mutyaba of Ms. Kasangaki & Co. Advocates, Masindi, represented by Ms. Salima while the Respondents were Akankunda of Ms. Lubega, Babu & Co. Advocates, Masindi. Both for written submissions their respective Counsel filed consideration in the determination of this appeal.

## **Consideration of the appeal**

[11] The Appellant raised a total of 6 grounds of appeal as contained in the Appellant's memorandum of appeal and this court shall first consider grounds 1, 2, 4 & 5 since all revolve around how the trial magistrate evaluated the evidence before her to arrive at the decision she made and grounds 3 & 6 separately.

# Grounds 1, 2,4 and 5: Evaluation of Evidence

- [12] Counsel for the Appellant submitted that as per the evidence of the Appellant and his witnesses; Babyenda James (DW2), and Kaliisa Solomon (DW3), a one Baturumayo Kisoro Kibi, a Musiita by clan owned the suit land who before his demise, had parcelled and given it out to different people who included his sister the late Nyangireki Joyce, a one Sam Kwesiga, Joseph Kitali, Kamanyire Wilson and the Appellant. That later the Appellant and his Auntie Nyangireki Joyce later decided to sell off part of the land to Ogentho (Aginento) Francis in the presence of the L. C. I Chairperson (DW3). - [13] Counsel argued that it was not shown by the Respondents how the Basiita clan acquired the suit land and from who, and that there was no evidence that the late Baturumayo gave the Alur people for temporary settlement the Basiita clan land to which he was a

caretaker as alleged by the Respondents. He referred to the purported hand over document of the suit land to the Respondents by the Alur Stefano Nyitto, P. Exh.2, a suspect. He contended that there was no evidence that the land belonged to the Basiita clan.

- [14] Counsel for the Respondents on the other hand submitted that the suit land belonged to the Basiita clan. That as per the evidence of Kamanyire Wilson (1^st Respondent/PW2) and his son Kwesiga Sam $(2^nd Respondent/PW3)$ , the suit land was bought by a one **Stanley** Bikanga who later left it to the Basiita clan when he passed it to the late Baturumayo who also handed it over to the 1^st Respondent as clan head after the demise of Baturumayo. Further, that Baturumayo had allowed 3 Alurs to stay on the land temporarily i.e. Samuel, Omilio and Stefano. The two of them i.e. Samuel and Omilio passed on but that Stefano before his demise had handed over the land to the $1^{st}$ Respondent as the head of the **Basiita clan**. P. Exh.2 is the document by which one of the Alurs, Stefano who was in occupation of the suit land handed over the said land to the 1^st Respondent. Counsel contended that this was evidence to prove that the land they were occupying belonged to the clan. - [15] It is apparent from the evidence on record and the submissions of Counsel for the Respondents that the basis for the claim that the suit land belonged to the Basiita clan, is the admission by the Appellant before the clan members that he wrongly sold the suit land that did not belong to him and the fact that the suit portion of land was prior occupied by 3 Alurs; Samuel, Omilio and Stefano Nyitto and upon the demise of the $1^st$ two, Stefano handed over the suit land to the 1^st Respondent as the head of the Basiita clan as per P. Exh.2. - [16] I have critically perused the English translation of P. Exh.2 dated 1.9.2008 on the assumption that it is the correct English version on record since parties did not contest the translation, its relevant parts are as follows:

" I Stephen Nyitho of Kihuuba, I came here in the year 1942. ...................................... Milio........ took me to Muzei Baturumanyo Kisoro Musiita. I asked him to give me land where I could build a house. He told me, I am giving you land and bring up your children plus your wife.... Allowed me to bury my wife on that land after her death. He also told me that in case I get tired of staying on the land I should not sell. I should instead hand it back to Basiita or...... Muzei Kamanyire Wilson, Musiita....... My heir........... Muzei Baturumayo died in the year 1992 December. We attended the burial, in that burial speeches were given and a document was read which Muzei Baturumayo left. Which talked about Kamanyire Wilson (sic) that states all those who are living on that land should not be chased away because [he had] stayed with them so well. The program entered there".

[17] Clearly, the above document (P. Exh.2), in my view, is not evidence that Stephen Nyitho (Stefano Nyitto) handed over the land in question to the $1^st$ Respondent as the head of the clan. The land was handed over to the $1^st$ Respondent as an individual in his personal capacity. **Stefano Nyitto** handed over the land to the $1^st$ Respondent as per the instructions of the owner. **Mzei Baturumayo.** It is apparent from the document (P. Exh.2) that **Mzei Baturumayo** owned the land as an individual and not in trust of the **Basiita clan** as Respondents claim. This is evidenced by his authority on the land whereby he could allow or offer it to anybody of his choice without consulting the other members of the clan as he did when he permitted Stefano Nyitto to bring his wife and children and occupy the land, or when he directed that nobody in occupation of the land should ever be chased away from it. The foregoing display power and authority of an owner of the land and not one who is holding the land in trust of another. Indeed, there is overwhelming evidence that **Mzei Baturumayo** parcelled his other portions of the land to his sister Nyangireki and others like **Kwesiga Sam** and the 1^st **Respondent**. He parcelled these pieces of land in his personal capacity as the owner thereof and his

beneficiaries therefore, who include the Appellant acquired personal interests in the pieces of land given to them by Mzei Baturumayo.

- [18] Secondly, the Respondents claim that when the Appellant in 2008, sold a portion of the suit land, he was subjected to a clan meeting, before the Basiita clan, where he accepted that he was wrong in selling the land that did not belong to him. - [19] The claim of admission by the Appellant that he wrongly sold out the land to Aginento was denied by the Appellant and the Respondents adduced no evidence in support of the claim by either the minutes of the meeting or by any other member of the Basiita clan who was present in the meeting. What was sold to Aginento is the piece of land that had been given to Nyangireki by the owner, the Mzei Baturumayo. There is therefore no evidence that the Appellant could have made such an admission before the clan. Besides, there is no evidence that was adduced by the Respondents that the specific piece of land that was handed over to the 1^st Respondent refers to the same piece of land that the Appellant and or Nyangireki sold to Aginento Francis. - [20] The Respondents pleaded and their Counsel submitted that the Appellant's sale of the portions of the suit land to other people was reported to the area LC I chairperson so that the Appellant refunds the money received from the buyers and the L. Cs decided in favour of the Respondents. - [21] This claim was also denied by the Appellant and again, no evidence was adduced by the Respondents to support the claim by production of either the L. C judgment and or order and or members of the L. C.s themselves testifying to that effect. - [22] The L. C. I chairperson of the area **Kaliisa Solomon** (DW3) instead led evidence for the Appellant to the effect that the late **Baturumayo** was the owner of the land which he parcelled and gave out to various people who included his sister Nyangireki

$\overline{8}$

Joyce, Wilson Kamanyire (the 1^st Respondent), and the Appellant. He emphasised that the portion in dispute is that piece of land which the late Baturumayo gave his sister Nyangireki Joyce. It is the same piece of land that was sold to Aginento Francis.

- [23] Indeed, on the locus visit, the trial magistrate found the suit land in occupation by $3^rd$ parties who derived their interest from The trial magistrate condemned these $3^{rd}$ Nyangireki Jovce. parties on the ground that they knew that their interests were the subject of the suit but did not join the suit and therefore she declared their interests voidable by the Respondents. - [24] I think this was a misdirection on the part of the trial magistrate. **First** of all, it is not correct as the trial magistrate stated in her judgment at page 8 that an individual, referring to "Baturumayo", cannot be a holder of customary land tenure" and therefore, the land was customarily held by the clan. An individual can enjoy customary land tenure of land, ss 2, 3 (1), (c), (e), (g) and (h) and 4 (1) of the Land Act. Secondly, a party cannot decide that he/she should be sued. The $3^rd$ parties in the instant case having not been sued cannot be a justifiable ground to condemn them. There is no evidence on record that they knew of the existence of the suit until locus visit day. As a result, they cannot be condemned on the ground that they knew about the suit whose subject was their respective interests in the suit land and refused and or failed to apply to be added as parties. In any case, the Respondents' claim did not include the $3^rd$ party interests, save for the piece of land Nyangireki and the Appellant sold to Aginento Francis. - [25] In conclusion, I find that the Respondents as plaintiffs in the lower court failed to prove their case on the balance of probabilities. Their evidence was not credible. The Appellant adduced credible evidence which was well corroborated by the area chairperson, DW3. The suit portion piece of land the Appellant allegedly sold to **Aginento** is part of the land that belonged to the late **Baturumayo** who owned the entire land personally. The suit land was therefore personal property of the late **Baturumayo** who

disposed it off accordingly and therefore, the trial magistrate erred in law and fact when she found that the land belonged to the **Basiita clan.** Grounds 1, 2, 4 and 6 accordingly succeed.

- Ground 3: The learned trial Magistrate erred in law and fact when she found that P. Exh. 1 was illegally executed and did not pass a lawful interest to Francis Ogentho [Aginento] on part of the suit land. - [26] P. Exh.1 was in respect of the suit sale agreement of land by the Appellant to **Ongetho (Aginento)**. Court has found that this land formed part of land owned by the late **Baturumayo** who gave it to his sister Nyangireki Joyce. It was sold to Aginento Francis during the life time of Nyangireki Joyce as the Appellant clearly There is no evidence from the record of crosstestified. examination of the area L. C. I Chairperson (DW3) that the said Nyangireki died in 2004 before the sale of the land. Babvenda **James** (DW2) was also not a credible witness to adduce the year Nyangireki died without proof, for example, of a death certificate to counter or rebut the Appellant's evidence regarding when **Nyangireki** could have passed on. - [27] I would therefore in the premises find that the sale vide $P$ . Exh.1 was legitimate and passed a lawful interest to the buyer, **Francis Aginento.** The trial magistrate therefore misdirected herself on the facts and the law when she found that **P. Exh.1** was illegal. The $3^rd$ ground of appeal accordingly succeeds. - Ground 5: The learned trial Magistrate erred in law and fact when she found the DW2, Babyenda James and DW3, Kaliisa Solomon were not credible witnesses without lawful justification. - [28] The trial Magistrate stated at **page 5** of the judgment that Counsel for the Respondents submitted that DW2 and DW3 were not credible witnesses on the grounds that DW2 was an interested party in the matter and DW3 was not a neighbour to the suit land.

The trial Magistrate resolved this issue in favour of the Appellant by correctly citing the provisions of S.117 of the Evidence Act which provides that:

"All persons shall be competent to testify when the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."

[29] Though in this case **Babyenda James** (DW2) during cross examination denied that he did not witness the sale of land by the Appellant to **Aginento Francis** yet his signature appears on the agreement (P. Exh.1), this did not occasion any miscarriage of justice to the parties since it was not in dispute that the Appellant indeed sold the land to the said Aginento Francis. This was the basis of the Respondents' suit/case. DW2's evidence during cross examination on this point appear to had been recorded out of In any case, the trial magistrate did not find DW2 and context. DW3 not credible as Counsel for the Appellant claim. Ground 5 of the appeal accordingly fails.

[30] In conclusion, I find that all in all, there was no evidence adduced by the Respondents that the suit land belonged to the Basiita clan. The Appellant is not a trespasser on the suit land and the sale agreement between him and **Ogentho [Aginento] Francis** was lawful. The appeal therefore accordingly succeeds. The judgment and the orders of the trial magistrate are set aside.

Costs of the appeal and in the lower court are awarded to the Appellant.

Dated this 30^th day of August, 2024.

**Byaruhanga Jesse Rugyema JUDGE**

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