[2010] UGHC 243

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT NAKAWA CIVIL APPEAL NO: 10 OF 2009


## [ARISING FROM NAK CMC CIVIL SUIT NO. 258 OF 2007]

**MOHAMMED MUBIRU:**

## VERSUS

**MONICA BABIRYE:**

## **::::::::::::RESPONDENT**

--------------------------------------

### **BEFORE:** HON. LADY JUSTICE FAITH MWONDHA

## **JUDGMENT**

$\mathbf{1}$

This appeal was brought before me by counsel for the appellant Ms. Kabugo Tamale & Co. Advocates on behalf of their client the appellant. The appellant was dissatisfied with part of the judgment of Her Worship Agnes Nkonge dated February 5, 2009 and delivered on February 20, 2009 by Her Worship Agnes Nabafu. He therefore appealed against that part of $-15$ the judgment on the following grounds:

- in upholding $1)$ The trial magistrate erred in law the respondent/plaintiff's interest in the suit land. - 2) The trial magistrate erred in law when she held that the appellant being a kibanja holder on the suit land should acquire a registerable interest within three months after delivery of judgment. - 3) The trial magistrate erred in law when she held that if the appellant does not acquire a registerable interest on the suit land within three months, he would have to vacate the same. - 4) The trial magistrate erred in law and fact when she ordered each party to bear its own costs.



¹ The appellant proposed that;-

jt

**2**

- a) the appeal be allowed and part of the judgment of the trial magistrate be set aside - b) judgment be entered for the appellant - appellant. c) costs of this court and the lower court be awarded to the

independent decision. appellate court is to evaluate and scrutinize the evidence on the lower court record to facilitate it to come to an The duty of the 1st

The claimant/respondent in this judgment instituted ^a claim in the District \* Land Tribunal Kampala, Claim NO. 188/2005 against the appellant in this judgment. The claim was for vacant possession, eviction, *mesne profits,* general damages and costs of the suit.

The facts from the claim were as follows:-

- (a) the claimant purchased land comprised in Block 204 Kyadondo Plot 534 Kawempe from its registered proprietors in 1999 - (b)the land was free, save for one old woman who was compensated in the sum of ushs. 2,000,000/- for her kibanja

(c) in the subsequent period after 1999, the respondent/appellant encroached on the land forcibly and constructed thereon some temporary structures and he refused to vacate the land thereafter despite repeated warning from the claimant/respondent.


# The claimant prayed that judgment be entered in her favour against the respondent for:

(a) eviction of the respondent and vacant possession of the suit land comprised in block 204 plots 533 and 534 Kyadondo Kawempe

(b) mense profits from 1999 to date R (c) general damages for trespass (d) costs of the suit.

The defendant in his Written Statement of Defence pleaded that he was a bonafide occupant on the suit land having been in occupation of the same He also pleaded that the suit land was initially his $\varphi$ for 35 years. grandfather's who died and was buried on the same suit land soon after he purchased the same in 1918.

That the claimant soon after purchase of the land, the claimant was introduced to the respondent/appellant in this judgment by the seller who was the registered proprietor, one Hajati Aisha Namusoke in the 15 presence of the LCI chairman.

That this was with the view that the respondent/appellant's brother and sister negotiate the terms of the continued occupancy of the respondent on the suit land or his compensation. He pleaded further that the claimant/respondent now has refused to come up with such negotiations.

The issues from the facts of the claim were;-

whether the plaintiff/claimant was the owner of the suit land $(i)$

whether the defendant/appellant had a kibanja on the registered $(ii)$ plaintiff's land CERTIFIED CO

What remedies were available for the parties. $(iii)$

**\** *'its trite law as provided in s.101 of the Evidence Act that whoever desires any court to give Judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that these facts exist"*

**5** This is ^a civil matter which sets the burden of proof and standard to be on ^a balance of probabilities and it is also trite law that the burden of proof in • suit or proceedings lies on that person who would fail if no evidence at all were given on either side.

*a S'* The plaintiff adduced evidence that she bought the suit land in 1992 from one Aisha Namusoke and she got ^a certificate of Title to the same in 1999. That she bought it at ⁷ million *(seven million only).* That she signed ^a sale agreement which was tendered in court as an exhibit with no objection from the defendant. She had ^a copy of the certificate of title of Block NO. 204 plot 533 and 534 Kyadondo. This also was tendered without objection from the defendant and marked Ex. P2. She said that she inspected the land which had coffee plantations and cassava which belonged to an old woman called Namubiru. That the seller introduced her to her. That she made arrangements to cause Namubiru vacate and she was paid shs. 2M *(two million only)* and the compensation agreement was written. That there were no other occupants. That the defendant came on the land when she had gone out of the country for ³ years. That the defendant told her that she was ^a kibanja holder and he wanted her to compensate him if wanted to leave. That Aisha Namubiru never introduced him to her. That she bought one acre and the defendant has constructed there


**4**

'various houses. She stated in cross examination that there was only one roomed house which belonged to Namubiru.

PW2 aged ⁵¹ was an LCl chairman, resident of Kirokole zone in Kawempe, stated that PW1 the plaintiff was introduced to him by Aisha Namusoke as ^s' the person who had bought land there from her. That it was in ¹⁹⁹⁸ and that, at that time there was Namubiru and her son wasswa and that the defendant was staying with wasswa and Mubiru. That there were 2 houses and the plaintiff only bought ^a piece. That Aisha had 4 acres. That the disputed land was occupied by Kizito, Kasozi, Namubiru and the ^defendant.

That other than Namubiru who was paid off by the plaintiff the others are still on the land. That she compensated her for the kibanja. That the land belonged to Kasongovu Namubiru's father and Nsubuga, sometime back. That the defendant came on the land on that basis and that he didn't remember when Mubiru joined the place. That the defendant has a family and a boy's quarter. That in 1997, the plaintiff complained of Mubiru (defendant) to stop further construction and that Aisha Namubiru never introduced the defendant to him at the time of purchase.

PW3 affirmed that his sister Aisha Namusoke sold the plaintiff land. That there was only one Namubiru whom she compensated. Further that their father Lubega Ali gave them the land and it was ⁴ acres. That he gave the title to Aisha Namusoke the big sister to this witness. That he didn't know the defendant at all. That he never saw Namubiru's children either. That Namubiru was there only as caretaker and she was cultivating on the land. That even the certificate of title was in the names of Ali Lubega at the^—r


**5**

^> time of sale. That there were no graveyards there. PW4 72 years old stated that he knew the defendant. That when he left that post of LCI chairman in 1997, the defendant was on the suit land.

Kasongovu. Then DW1 Namubiru Efulansi aged 80 years stated that the i defendant/appellant was his nephew, a son of her brother called Nsubuga and the defendant's structures were on Nsubugas' portion and that's where she left him. She denied having been paid money to leave. That she had stayed on the suit land for 50 years and when her father died, she was appointed heir. This is ^a fact which PW4 (72 years) alluded to that *o* Namubiru was the heir of her father's properties and he was called

DW1 went further and said that there were four houses on this land. She said that their father died in 1954 and he used to stay there too and it was 4 acres. That Nsubuga was alive still and they shared in half the land. She stated that Aisha Namusoke chased her away. That the chairman gave her Shs. 2 million called **swaibu Serugotto.** That an agreement was made and she thumb printed it. She recognized the thumbprint as hers. That the chairman told her that he was lending her the money and after that she was chased away and she left the land. She testified that the Chief Magistrate told her to go away and she never picked any of her belongings, since she had received the money. That she had coffee plantations, ^a wattle and mud house. That she had sold off already to Masagazi, Kasozi and Makubuya and Kizito (Wasswa her son).

That she left in 1999. She testified that by the time she left, the defendant 3.5 had not built any house there but his father Nsubuga. Her evidence was^.


**6** ## 13

unshaken in cross examination. She affirmed that her father died in 1954 and was buried on the suit land on the defendant's father's portion.

DW2 was the appellant, his evidence was consistent with DW1's and PW4 as well as PW2's in some parts. The evidence of DW3 was straight forward and consistent with DW1's evidence. He stated that he gave his share to the defendant in the 1990's and head constructed 4 houses thereon.

PW3's testimony established that the land in issue i.e., all the 4 acres belonged to their late father Ali Lubega who had even a certificate of title which he gave to his big sister Aisha Namusoke and has since passed on. ₁₀ He testified that it was only Namubiru DW1 who was there as caretaker. She was compensated and went away and besides, the plaintiff only bought one acre. DW1 recognised her thumbprint when she was given 2 million as compensation. How the father of DW1 and DW3 came to stay on the land in order for DW1 and DW3 to inherit it was not established at all. $\sqrt{5}$ DW3 stated that there is a factory on the suit land and that the appellant occupies only 25 decimals on which he has made developments.

Going back therefore to resolve the issues as stated above, it comes out clearly from the evidence, that the plaintiff/respondent was the owner of the suit land of which she even had a valid certificate which she got in $\frac{1999}{2}$

$2^nd$ out clearly resolving the issue. it comes that the On appellant/defendant has no kibanja on the registered land of the respondent and therefore has no customary interest on the land in issue.

CERTIFIED CORRECT HIGH

$\mathbf{7}$

**14** ^< The appellant was on that land as long as Namubiru was there, who is his aunt.

Namubiru, from the evidence on record was just ^a caretaker having been given that duty by the father of PW3 and one Aisha Namusoke. It follows *s* therefore that if the father of Namubiru and Nsubuga stayed on the land, he was staying there by courtesy of AH Lubega the father of Aisha Namusoke and PW3. There is evidence undisputed that DW1 was compensated for her crops and she left.

^I find the case of the defendant/appellant highly unreliable because DW3, . ^Vs-the father of the appellant did not tell court who bought the land, he doesn't even know when he gave this land to the appellant and how he came to own it. All this is grey. He stated that there were many people now on the land as all the four acres were sold. If they were sold, how could he expect his son (appellant) to still be owning the 25 decimals. It 15- was the averment of the defendant/appellant that he inherited this land from his grandfather who passed away after buying it in 1918. The appellant/defendant was only in his mid 30'^s when he testified, how he could have inherited it when he had not been born.

DW3, the father of the appellant, much as he stated that their father left 4 acres, and much as he stated that the four acres were sold to the owners . of the factory and other people he didn't know, he didn't mention at all who sold to these people all the four acres and yet they belonged to him and his sister DW1. DW1 had said that they owned the same in half. There is something which is not being stated which makes their case not to have *^6* been proved on ^a balance of probabilities, the plaintiff/respondenth^vWx proved hers. '


**8**

$\cdot$ Much as Article 237(8) created security of occupancy of those tenants by $\cdot$ recognizing customary tenure, as one of the tenures in Uganda, and of course section 31(1) of the Land Act as amended provided for security of occupancy of those tenants on registered land, S.31(2) of the land Act $\mathcal{S}$ which deemed tenants of occupancy to be tenants of registered owners among others, the appellant can't enjoy such protection.

DW3 In his testimony just states that he gave his son the appellant the land in issue in the 1990's and yet the respondent stated that she bought the suit land in 1999 and she registered it. In the pleadings, the appellant _so alleged to have inherited the land from his grandfather, this means that his case departed from the pleadings which makes his case weak.

From the fore going ground (1) of the appeal fails because definitely the respondent has a valid registered interest and in fact she is the owner of the suit land. She registered it in 1999 when DW2 was not there and he $\sqrt{5}$ was never introduced to her.

On ground number (2), the appellant, according to the evidence, he cannot be a kibanja owner because even his auntie DW1 was a mere caretaker and he himself never stayed there in his own right. PW2 stated that Mubiru was staying with his auntie though he said also that he didn't know when the appellant came to stay with Namubiru, DW1.

It is clear to me that the appellant didn't have any kibanja on the suit land. There was no evidence at all that he stayed on this land having inherited it. from his grandfather. Parties are bound by their pleadings

**fe-** (leaded that his grandfather bought it in ¹⁹¹⁸ before he passed on. There ^f yas nothing in the evidence to prove this and neither did he produce any evidence that he inherited it from him. There were inconsistencies in the defendant/appellant case because DW3 said that it's him who gave it to him and yet the defendant in his written statement of defence said that\_5 he inherited it. The two do not tally and definitely it shows that each of them was not telling the truth.

Namubiru, DW1 in her testimony tried to paint ^a picture that she was chased away from the land which land she never owned. The evidence of the plaintiff was not disputed or shaken at all.

DW1 was his auntie whom he came to stay with as long as she was ^a caretaker of the land. The moment Namubiru was settled, the defendant could not have any right whatsoever to stay on the land.

The second issue is resolved in the negative, the defendant failed to prove - his customary interest on the land belonging to the plaintiff.

On the last ground of not ordering costs, it is trite law that costs follows the event. See Section 27(1) & (2) of the Civil Procedure Act. If the trial . magistrate properly evaluated the evidence, she would have found that the plaintiff/respondent proved her case on a balance of probabilities and that'^s why she made the order that the appellant has to get ^a registerable interest within ³ months after the delivery of judgment. She ought have therefore awarded costs to the plaintiff/respondent. The discretion was not judicially exercised and it was manifestly unjudicially exercised.

Accordingly the appeal is dismissed and judgment is entered in favour'' the respondent, ^<^0


**10**

**8T**

» a) the appellant is a trespasser and should vacate the suit land within ⁶ months from the date of this judgment an leave vacant possession for the respondent, failure of which eviction orders be sought for

b) the respondent is awarded general damages of Shs. ⁵ million because of the inconvenience and loss of time the respondent has

- *s* suffered - c) Costs for the respondent to be provided for of this court and the lower court.

so be it done.

*\o* Right of appeal explained.

FAITH MWONDHA JUDGE 18.06.10

**<**