[2024] UGHC 293

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 36 OF 2022 (ARISING OUT OF CIVIL SUIT NO.005 OF 2020)

MUGASHA JOHN :::::::::::::::::::::::::::::::::::: **VERSUS**

### ALLEN SSANYU ::::::::::::::::::::::::::::::::::::

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **JUDGMENT.**

## **Introduction.**

1. The Appellant being dissatisfied with the judgment and Orders of His Worship Mfitundinda George in the Chief Magistrate's Court of Rakai at Kakuuto in Civil Land Suit No. 005 of 2020, Judgment is dated 25^th April 2022, brought this appeal seeking orders that the appeal be allowed with costs, the Judgment and orders of the Learned trial Magistrate be reversed and or set aside, and that the Appellant be declared the owner of the suit Kibanja.

#### **Brief Background to the Appeal.**

- 2. The Respondent/Plaintiff sued the Appellant/Defendant for trespass, a declaration that the land in dispute belongs to the Respondent/Plaintiff, eviction Orders, permanent injunction restraining the Appellant/Defendant, his agents, servants or any other person deriving authority from the Appellant from further trespassing on the suit land, general damages and costs of the suit. - 3. The Respondent (Plaintiff) as the holder of powers of attorney from Eliphazi Bishanga a registered proprietor of land comprised in Buddu-Kakuuto, Block 852 Plot 85. That the Plaintiff acquired the suit land by way of purchase through his late son and former holder of Powers of Attorney Steven Mugisha Bishanga who died on 13/11/2016 after he purchased this land on behalf of his Father on $8/2/2004$ . That the survey was carried out without any encurmbaraces until 26^th of February when the Defendant bought a small piece of his Kibanja from Maria Nakivumbi, built his house in the boundary line and grabbed about 2 acres of the Plaintiff's land. - 4. That the Plaintiff suffered immense damages at the hands of the defendant though his late son Stephen Mugisha Bishanga had filed Civil Suit No. 0009 of 2016 against the defendant in Kalisizo Court. It was fixed for hearing on 25/2/2017 but Steven Mugisha Bishanga suddenly passed on $13/11/2016$ before hearing the same. That the Kalisizo Court Clerk who is in charge of the Civil Registry, a one Muusa Hamudani

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together with the Magistrate G I Kalisizo, always confirmed to the Plaintiff that the above old case file cannot be traced there, and that the Plaintiff should open up a duplicate file or open a new Civil case in a Magistrate's Court of original jurisdiction at Kakuuto before the G. I Magistrate.

- 5. That since the death of the Plaintiff's son the late Steven Mugisha Bishanga, the Defendant has continually unleashed a lot of havoc and has denied the Plaintiff quiet and peaceful possession of his land by grazing on the land of the Plaintiff, damaged the water dams, caused several diseases to the cattle of the Plaintiff, forcefully cultivated the Plaintiffs land and has stubbornly refused surveyors from the reopening of the boundary marks of the Plaintiff's land on $27/8/2018$ . - 6. The Appellant/Defendant denied the Plaintiff's claim, that he shall raise a preliminary point of law concerning the commencement of this suit when a suit on the same facts and between the same parties or their predecessors in title still continues at Kalisizo Court vide civil. Suit No.09 of 2016: Mugisha Bishanga Vs Mugasha John. - 7. The Defendant further stated that Eliphazi Bishanga does not own any land in the locality where the Defendant set up his homestead as the land in issue belongs to one Frank K Ssensamba who purchased it from the Late Blasio Kyeyune sometime in the mid 70's long before the said Eliphazi Bishanga purportedly bought it from the children of Blasio Kyeyune after the latter's death. That the Defendant was the caretaker of this land on behalf of Frank K. Ssensamba and he was in occupation of the land keeping Ssensamba's cattle on the land when the said Eliphazi Bishanga purportedly bought it through the agency of his son Mugisha Bishanga. That a Civil Suit No.028 of 2010 was pending before this Court between Ssensamba and the said Eliphazi Bishanga over the said land. - 8. That the Defendant's homestead is on a Kibanja he bought from one Maria Nakivumbi in 2010 and he has not in any way encroached on the land which Eliphazi Bishanga through the Plaintiff claims much as it is common knowledge that it belongs to Frank K. Ssensamba.

# **Representation and hearing.**

9. The Appellant was represented by Nansubuga, Awelo & Co. Advocates. The Respondent was represented by Nakasagga & Co. Advocates. Both Counsel filed written submissions that have been considered herein.

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SUMMINGS

# **The Grounds of Appeal.**

- 10. The Appellant raised three (3) grounds of appeal in his Memorandum of Appeal namely; - 1. The trial Magistrate erred in law and fact when he failed to evaluate the glaring $\mathbf{1}$ evidence and came to a wrong conclusion that the Appellant did not have a Kibanja interest on Block 852 Plot 85, thereby occasioning a miscarriage of justice. - 2. The trial Magistrate erred in law and in fact when he failed to consider the fact that the Respondent never did any due diligence to establish whether or not the land was encumbered and acquired the land with all its equities. - 3. The trial Magistrate erred in law and fact when he ruled in favour of the *Respondent on the issue of trespass by the Appellant and yet the Respondent has never been in possession which decision occasioned a miscarriage of justice.*

# **Duty of the First Appellate Court.**

11. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases including J. F. Zaabwe v *Orient Bank Ltd CACA No. 4 of 2006; Kifamunte Henry v Uganda SC CR. Appeal No. 10 of* 1997; and Baguma Fred v Uganda SC Crim. App. No. 7 of 2004. In the latter case, Oder, **JSC** stated thus:

"First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely *endorsing the conclusion of the trial court".*

## **Consideration of the Grounds of Appeal**

12. Counsel for the Appellant started his arguments with ground 3 separately and then argued grounds 1 & 2 together; I will adopt the same approach.

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<u>Ститкер</u>

### Ground 3

The trial Magistrate erred in law and fact when he ruled in favour of the Respondent on the issue of trespass by the Appellant and yet the Respondent has never been in possession which decision occasioned a miscarriage of justice.

# **Submissions by Counsel for Appellant.**

- 13. Counsel for the Appellant submitted that a person bringing an action of trespass must be in actual possession of the land and not necessarily ownership, interest in land. However, in this case, there was no concrete proof of the Respondent's possession of the disputed land. That it's rather the Appellant and his witnesses who are residents of Gamba village where the disputed land is situate proved that the Appellant was in possession of the disputed land since 2010 and prior to his purchase, a one Kivumbi and Nakivumbi who sold to the Appellant were in possession of the same. - 14. That DW1 (now the Appellant) testified at paragraph 2 page 11 of the proceedings that he purchased the disputed Kibanja in 2010 from Maria Nakivumbi and he started cultivating their food crops, built a home and a kraal thereon. Further he testified that prior to his purchase, a one Kivumbi and Nakivumbi were utilising the Kibanja. that DW2 (Kivumbi Paul) at page 11 of the record of proceedings testified that the Appellant bought the same from a one Maria Nakivumbi and that he was cultivating their food crops before the sale after which the Appellant took possession and he has there a house where lives. That PW4 (Geraldine Nakazibwe who sold to the Respondent) testified at page 9, paragraph 1 of the record of proceedings that by the time they sold, the Kibanja that the Defendant occupies belonged to Mulefu. - 15. That there was no evidence adduced by the Plaintiff now Respondent nor her witnesses who indeed were not residents of Gamba where the suit land is, that she has ever been in possession of the disputed land but it's rather the Appellant and his witnesses who proved that the Appellant was in possession of the disputed land as his Kibanja and prior to the purchase, the vendor was in utilization of the same. That the Appellant and all his witnesses are residents of Gamba Village where the land/Kibanja in dispute is situate but that the respondent and her witnesses are not residents of the same. That the Appellant's witnesses are more familiar with the circumstances of the land/Kibanja as to who was in possession of the same and thus the Trial Magistrate ought to have relied on their evidence since they were more credible and reliable and they had a better opportunity to see the user of the land.

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$\frac{1}{2}$

Counsel submitted that the Trail Magistrate omitting the same caused a miscarriage of justice.

16. Appellant's Counsel prayed that court finds that the Respondent/ Plaintiff had never been in possession of the suit land and could not sustain a claim of trespass against the Appellant.

### **Submissions by Counsel for Respondent.**

- 17. The Respondent's Counsel submitted that the land trespassed on by the Appellant forms part of Mr. Eliphazi Bishanga's land which he purchased from Nakazibwe Geraldine and Deo Ssengozi on the $8/2/2004$ and obtained a Certificate of t - 18. Title thereafter. That the land Eliphazi Bishanga bought was free from Bibanja holders instead the vendors remained with the part of the land that had Bibanja holders. That the land was used for grazing and cultivation. That the Appellant (Defendant) purchased a Kibanja neighboring the land in dispute in 2010 and started trespassing on it in 2016 by constructing on it. $\frac{1}{2}$ - 19. That Eliphazi Bishanga is the registered proprietor to the land comprised in Block 852 Plot 85 (suit land) and be as it may the PW1 the Respondent herein, testified before Court that he was at all time been using the land for grazing her cattle and cultivation, which evidence still stands uncontroverted and/or challenged. That the disputed land is registered in the names of Eliphazi Bishanga and that the Respondent has always been grazing from the suit Kibanja and cultivating thereon is an indication that the Respondent at the time of suing was not only in constructive possession but also in actual possession and hence, the Respondent had right to sue for trespass and the Learned trial Magistrate was right in finding that the Appellant was a trespasser on the Respondent's land.

### **Determination by the Court.**

- 20. The major contention under this ground of appeal is that the Learned trial Magistrate erred in his evaluation of the evidence on trespass and ruled in favour of the Respondent when the Respondent has never been in possession. The settled position of the law on trespass is that trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land. Trespass is committed not against the land, but against the person in actual or constructive possession of the land. (See Hajji Bumbakali versus Peter Muhairwe & Ors; Civil Suit No. 036 of 1999, citing Justine E M N Lutaaya versus Sterling; Civil Eng. Appeal No.11 of 2002;). - 21. Needless to say, the tort is committed not against the land but against the person who is in actual constructive possession of the land. A claim for trespass to land can as well succeed where the claimant proves that the disputed land belongs to him/her; that

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the Defendant had entered upon it and that the entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land.

22. In the present case, the learned trial Magistrate in his judgment considered the evidence in regards to trespass and stated that:

"Considering the evidence above, the question to determine is whether the Defendant extended his Kibanja on the Plaintiff's land. According to the evidence of PW4, they sold land in dispute to the Plaintiff's husband-Mugisha Bishanga in 2004 while the Defendant bought from the children of Mulefu neighboring Kibanja in 2010. The Defendant's sale agreement is DEI while the purchase agreement for Mugisha Bishanga is exhibit PE1. PW4 told Court that they inherited the land that they sold to Mugisha Bishanga from their Father, Blazio Kyeyune while Mulefu had bought the Kibanja that his children sold to the Defendant from their father. He told Court that there were boundaries of mpanyi and palm tree separating their land and *Mulefu's Kibanja. He told Court that the Defendant removed them in 2012 and trespassed on* the land that they had sold to Mugisha Bishanga. In addition to the above, PW5 the District *Surveyor told Court that he opened boundaries of the land comprised in Block 852 Plot 85 and* found that the Defendant's house occupies part of the land in dispute measuring 10 by 30 feet while he cultivates on another part of the land in dispute measuring 10.7 acres and has a pit latrine and a kitchen on the same land. It is therefore on the basis of the above that I am inclined to conclude that the Defendant trespassed on the land in dispute."

- 23. It is clear from the above that the issue that was being investigated by the trial Magistrate was whether or not the Defendant crossed from the Kibanja he bought from Mulefu to that of the Plaintiff and whether actually, the Defendant was in possession of Block 852 Plot 85, land that is registered in the names of Eliphazi Bishanga. This explains the reason for ordering a District Surveyor to open boundaries and establish if actually the disputed part is in the land that forms part of Block 852 Plot 85. To the Appellant, the argument is that the Respondent/ Plaintiff had never been in possession of the suit land and could not sustain a claim of trespass against the Appellant. - 24. To resolve the above, the learned Trial Magistrate relied on the testimony of PW5, the District Surveyor as an expert witness who went on ground, surveyed and told Court that he opened boundaries of the land comprised in Block 852 Plot 85 and found that the Defendant's house occupies part of the land in dispute measuring 10 by 30 feet while he cultivates on another part of the land in dispute measuring 10.7 acres and has a pit latrine and a kitchen on the same land. - 25. It is clear to me that one way the defendant would have made his case was to show that he made proper due diligence before purchasing the said Kibanja and ascertain who was the Landlord and if actually it forms part of the then seller's land, the children of Mulefu who had a neighboring Kibanja. In my view, the dispute before the trial Magistrate was more of about boundaries. The Appellant seemed not to be

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Swmmkb sure of where exactly his said Kibanja passes. As such, the evidence of a surveyor was handy at trial and it confirmed that actually, the Defendant had gone beyond this neighbouring Kibanja and constructed a house on part of the land in dispute measuring 10 by 30 feet while he cultivates on another part of the land in dispute measuring 10.7 acres and has a pit latrine and a kitchen on the same land which is part of the land in dispute that forms part of Block 852 Plot 85.

26. In the circumstances, I do not find any error of either law or fact on the part of the trial Magistrate in this regard. There was sufficient evidence before the Learned trial Magistrate that the Respondent (Plaintiff) and the predecessors was in actual and constructive possession of the suit land at the time when the Appellant encroached on it in 2010. It is my finding that, the Learned trial Magistrate rightly applied the principles required in the tort of trespass to land and boundary disputes. This ground $(3)$ of appeal fails.

## Grounds 1 and 2.

- 1. The trial Magistrate erred in law and fact when he failed to evaluate the glaring evidence and came to a wrong conclusion that the Appellant did not have a Kibanja interest on Block 852 Plot 85, thereby occasioning a miscarriage of justice. - 2. The trial Magistrate erred in law and in fact when he failed to consider the fact that the Respondent never did any due diligence to establish whether or not the land was encumbered and acquired the land with all its equities.

## Submissions by Counsel for Appellant.

- 27. It was submitted that the trial Magistrate erred when he held that the Appellant did not have a Kibanja interest on Block 852 Plot 85 yet the same land originally belonged to the same person the late Blaze Kyeyune Kasajja who sold off a Kibanja on his land to the late Mulefu in 1960's and later on the children of the late Mulefu sold off the same to the Appellant. - 28. Counsel further submitted that the Trial Magistrate relied on the Surveyor's report and concluded that the Appellant did not have a Kibanja interest on Block 852 Plot 85. That the trial Magistrate only opted to get this evidence after noticing that there was no evidence upon which he would rely on to decide in favour of the Respondent (then the Plaintiff). This is because the hearing of the case had been concluded on the $20^th$ $\frac{12}{2021}$ and judgement was set for 24^th $\frac{101}{2022}$ . However, on the day of the judgement, the trial Magistrate decided to reopen the case.

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Symmethy

- 29. Counsel submitted that the opening of boundaries in this case was irrelevant since the dispute was between a Kibanja holder (the Appellant) and a land owner (the Respondent). That a Surveyor's report cannot be relied on to determine the boundary between a piece of land and a Kibanja especially where a Kibanja is situate on the same plot of land. It can only help where the Kibanja is on a different plot of land. In this case, there was no evidence to show that the Appellant's Kibanja is on a plot separate from Buddu Block 852 Plot 85. - 30. That the Trail Magistrate still relied on the contradictions in the evidence of PW1 (the Respondent) and PW4 ((Nakazibwe Geraldine, the one who sold to the Respondent) regarding the boundary marking between his Kibanja and the Respondent's land. PW4 (Nakazibwe Geraldine) at page 8 paragraph 3 of the record of proceeding testified that "I know the boundaries of Kibanja that my father sold to Mulefu. There were boundary marks made of Mpanyi separating our land and Kibanja that the children of Mulefu *sold to the Defendant. There was also a palm tree".* Then PW1 (the Respondent) at page 4 of the record of proceedings testified that there were mark stones demarcating the boundary of the Defendant's Kibanja. Counsel concluded that the above contradictions in the Respondent's evidence on existence of the different types of boundary markings on the disputed Kibanja is major and goes to the root of the case as the same misguided Court.

## **Submissions by Counsel for the Respondent.**

31. The Respondent's Counsel submitted that Eliphazi Bishanga is the rightful owners of the land in dispute. That It's trite law that for one to claim a benefit of land, he/she must have an interest in the same as elucidated in **Boyes v Gathuru 1969 E. A.** He cited Section 59 of the Registration of Titles Act, that the Appellant's submission that the trial Magistrate erred in law and fact when he failed to evaluate the glaring evidence and came to a wrong conclusion that the Appellant did not have a Kibanja interest on Block 852 Plot 85 thereby occasioning a miscarriage of justice, is self-defeating because there is no way the Respondent who acquired his legal interest in year 2004, would have recognized the Appellant's Kibanja interest onto his land, which the Appellant purports/ claims to have got in year 2010. That this means that at the time the Respondent acquired his legal interest into the suit land, the Respondent never had any colour of interest into the suit land as he had not yet bought or even occupied the said suit land.

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Summurbh

- 32. That at locus visit, DW1 (Appellant herein) further testified that he has a house on the Kibanja in dispute and that the Kibanja in dispute is on the land of Blazio Kyeyune and not for the Plaintiff, which compelled the trial Magistrate to make a direct order for opening boundaries of Block 852 Plot 85 herein the suit land, for purposes of establishing if indeed the Defendant has encroached onto the suit land as claimed by the Plaintiff (Respondent herein) and denied in toto by the Defendant. That the learned trial Magistrate reopened the case and ordered the District Surveyor to carry out boundary opening to ascertain the interests of the parties in the suit land. - 33. In regards the $2^nd$ ground of Appeal, the Respondent's Counsel submitted that "parties are bound by their pleadings "under Order 6 Rule 7 of the CPR). That the Appellant in his pleadings did not plead that he owned a Kibanja onto the Respondent's land and neither did he state that he had any interest be legal or equitable interest onto the Respondent's land (suit land). That to be more specific, the Appellant testified in Court and at locus that he is not even a neighbor to the suit land and that his Kibanja is on Blazio Kyeyune's land but not on the Respondent's land in dispute. That by way of this appeal, the Appellant seemingly starting that he owned a Kibanja onto the Respondent's land and that the Respondent bought the land in dispute with its equities is a clear departure from his earlier pleading and this Honourable Court can't be used to sanction an illegality. - 34. That the Respondent's/ the registered proprietor 'Bishanga Eliphazi carried out due diligence before purchasing the land in dispute as required by law since he bought from children of the late Blazio Kyeyune, who had beneficial interests in the suit land. It was submitted that the trial Learned Magistrate Grade 1 was genuine, authentic and exact to hold that the Appellant was a trespasser on the Respondent's land and prayed that this Court upholds the decision of the trial Court

## **Determination by the Court.**

- 35. The major contention under grounds 1 and 2 of appeal which in my view are similar in effect is that the learned trial Magistrate erred in his evaluation of the evidence on ownership of a Kibanja interest by the Appellant on Block 852 Plot 85, land at Buddu-Kakuuto. - 36. A Kibanja is a form of land holding or tenancy that is subject to the customs and traditions of the Baganda, characterized by user rights and ownership of developments on land in perpetuity, subject to payment of an annual rent (Busuulu) and correct social behavior, distinct and separate from ownership of the land on

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which the developments are made and in respect of which the user and occupancy rights exist. Kibanja refers not only to the piece of land, but also to the tenant's rights. Consequently, a Kibanja holder has conditional perpetual occupancy and user rights in the land. Historically, a Kibanja holder was only required to pay an annual tax (Busuulu) or provide labour to chiefs (batongole) to hold their land in perpetuity. (See *Owembabazi Enid v Guarantee Trust Bank and others Civil Suit No. 0063 Of 2019).*

- 37. Under Section 29 (1) (a) (i) of The Land Act, the rights of Bibanja holders are preserved by defining "a lawful occupant" to include one who occupies land by virtue of the repealed Busuulu and Envujjo Law of 1928; thus, a Kibanja holder is a lawful occupant. A person claiming to be a lawful occupant by reason of being a Kibanja holder, therefore has the burden of proving acquisition of the necessary rights either as a child of the Kibanja holder, a customary successor, or that he or she had the consent of the Mailo holder to reside on the suit land (see Hosea Sonko and eleven others 30 v. D. K. Banoba, H. C. Civil Appeal No. 71 of 2014). - 38. In the case before me, the Trial Magistrate considered the evidence in regards to a Kibanja and stated that;

$\ldots$ the question to determine is whether the Defendant extended his Kibanja on the Plaintiff s land. According to the evidence of PW4, they sold land in dispute to the Plaintiff's husband-Mugisha Bishanga in 2004 while the Defendant bought from the children of Mulefu neighboring Kibanja in 2010. The Defendant's sale agreement is DE1 while the purchase agreement for Mugisha Bishanga is exhibit PE1. PW4 told Court that they inherited the land that they sold to Mugisha Bishanga from their father, Blazio Kyeyune while Mulefu had bought the Kibanja that his children sold to the Defendant from their father. He told Court that there were boundaries of mpanyi and palm tree separating their land and Mulefu's Kibanja. He told Court that the Defendant removed them in 2012 and trespassed on the land that they had sold to Mugisha Bishanga. In addition to the above, PW5 the District Surveyor told Court that he opened boundaries of the land comprised in Block 852 Plot 85 and found that the Defendant's house occupies part of the land in dispute measuring 10 by 30 feet while he cultivates on another part of the land in dispute measuring 10.7 acres and has a pit latrine and a kitchen on the same land. It is therefore on the basis of the above that I am inclined to conclude $\,$ that the Defendant trespassed on the land in dispute."

39. The above finding by the Trial Magistrates indicates that he relied on all available evidence in finding that the now Appellant had trespassed on the land of the registered proprietor. It is clear and was admitted by both parties that the Defendant indeed a bought Kibanja. however, from the available evidence on record, I am not convinced that the Appellant has protectable a Kibanja interest on land registered in the names of Eliphazi Bishanga as the registered proprietor of Block 852 Plot 85 land at Buddu-Kakuuto. To the contrary, the Appellant's interest was found to be in the

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neighboring land. To properly ascertain the position on ground in regards to the boundaries, the Trial Magistrate ordered for a survey which was done in presence of the parties. Re-opening of the case on Court's own motion was in my view necessary to resolve the controversy and the record indicates that each party was given an opportunity to test the survey report. There was therefore no miscarriage of justice. I have therefore found no sound basis for interfering with the reasons and findings of the learned trial Magistrate. In the circumstances, I have found no merit in the first and second grounds of Appeal and they accordingly fail.

40. In all, therefore, all the grounds of Appeal have been found to be without merit and have failed. The appeal is accordingly dismissed with costs to the Respondent. The Judgment and decree of the lower Court is upheld and shall be enforced.

It so ordered.

Judgment signed and delivered by email this 22^nd day of March, 2024

LAWRENCE TWEYANZE **JUDGE.** $22^{nd}$ March, 2024.