[2024] UGHC 1176

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

# CIVIL APPEAL NO. 12 OF 2020

## (Arising from Civil Suit No. 002 of 2016)

MUWANGA TEDDY................... $\mathsf{S}$ ......................................

### **VERSUS**

SSEBULIME FRED....................................

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

#### JUDGMENT

The appellant brought this appeal against the decision of Her Worship Sarah Basemera Anne, Magistrate Grade one at the Chief Magistrate's Court of Mpigi at Nsangi delivered on the 9^th December, 2019.

### Brief background:

- The appellant sued the respondent in the Chief Magistrate's Court of Mpigi at 15 Nsangi with a claim of trespass against the respondent seeking for; a declaration of ownership, an eviction Order, a permanent injunction, and costs of the suit. - It was the appellant's case that the kibanja in dispute formerly belonged to her sister Nakiyaga Margaret. That between 1993 and 1994, the respondent purchased part of the disputed kibanja from the deceased and constructed a 20 permanent structure on his plot. That the said Nakiyaga Margaret in 1994 gave the disputed part to the appellant as a gift intervivos and reduced it into writing. That the appellant took quiet possession thereof without any disruption until the respondent constructed thereon forcefully. - The respondent's case on the other hand was that he purchased his first plot of 25 land measuring 93.2feet and 85 feet from Nakiyaga Margaret on $2^{nd}/7/1994$ . That, he subsequently purchased another piece from the children of the late Nakindi Betty who was the owner thereof after he had been duped by the appellant's mother (PW2). He denied being a trespasser. - The trial court found in favour of the respondent as the owner of the suit land; the 30 appellant was found to be a trespassers on the same. The suit was dismissed with costs.

The appellant being dissatisfied with the said decision lodged the instant appeal, whose grounds are as follows:

- 1. That the learned Trial Magistrate erred in fact and law when she held that the plaintiff had no cause of action against the defendant and therefore had no claim of right whatsoever to be declared the owner of the suit land/kibanja. - 2. That the trial Magistrate erred in law and fact when she failed to evaluate the evidence as a whole thus reaching a wrong conclusion. - 3. That the trial Magistrate erred in law and fact when she held that the respondent was not a trespasser.

## Representation:

M/s Luzige, Lubega, Kavuma & Co. Advocates represented the appellant while Mr. Wetaka Andrew Wobugwe from M/s Wetaka, Bukenya & Kizito Advocates appeared for the respondent. Both parties filed written submissions.

Submissions: 15

> Ground 1: That the learned Trial Magistrate erred in fact and law when she held that the plaintiff had no cause of action against the defendant and therefore had no claim of right whatsoever to be declared the owner of the suit land/kibanja.

Counsel for the appellant submitted that it was the appellant's evidence that she acquired the suit land from her late sister Nakiyaga Margaret in 1993 and a formal 20 gift intervivos letter was made in 1994. That the respondent constructed rooms and a pit latrine on her kibanja in 2008. That she reported the matter to several authorities and the respondent took no action hence instituting the civil suit.

Whereas, the respondent stated that he bought his land from Nakandi Kevina, the appellant's mother in 1996 and the appellant refused to vacate the suit land which 25 belonged to Betty Nakindi. And that the siblings of Betty approached him and sold to him the suit land therefore he not a trespasser.

Counsel noted that whereas, the respondent claimed that the suit land belonged to the appellant' sister, he did not provide any proof to show how the suit land changed ownership from Nakiyaga Margaret to Nakindi Betty from whom the respondent allegedly bought from and the same was never proved by DW2 a son to Betty Nakindi.

Counsel further submitted that the trial Magistrate ignored the fact that the appellant had always been in occupation and possession of the suit land and the respondent herein found her there at the time when he purchased his kibanja which fact he confirmed. That however, the respondent who bought on

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$\mathsf{S}$

02/02/1996 from Kevina Nakandi never evicted the appellant from the suit land until 2009 when he instructed his lawyers to take action. That it took him 13 years to take any action when he was aware of the appellant's interest.

- Counsel for the respondent on the other hand submitted that the pleadings of the appellant indicate that the entire suit land is in dispute and that the attempt of $\mathsf{S}$ counsel's submissions are that there were two separate pieces of land was a deviation from the pleadings. In addition that the appellant failed to prove that indeed the suit land was a gift intervivos that the gift deed was not signed by the appellant and only had a signature of Nakiyaga. - Counsel went on to submit that the trial Magistrate compared the two agreements $10$ and the signatures and under Section 72(1) of the Evidence Act, she is empowered to do so. Thus, the argument that court should have used a handwriting expert is without merit. He noted that it is trite that; "court is the expert of experts" which means that where a handwriting expert gives an opinion or makes a report it is - ultimately the court which has to determine whether or not that opinion is 15 relevant, reliable or admissible. (See: Dr. Henry Kamanyiro v. Roko Construction Limited, C. A. C. A No. 05 of 2005). That in the circumstances the trial Magistrate could not disregard the document of the appellant and rely on her oral evidence. (See: Mukasa Ssegujja Umar v. Nantambi Madiina & Another, H. C. C. A No. 24 of 2018 where court referred to Section 92 of the Evidence Act, to hold that oral $20$ - evidence cannot be admitted to add to, alter or contradict a written agreement).

Further, that the trial Magistrate also considered the contradictions in the appellant's evidence for instance that while she stated that she had no house on the suit land, PW2 her mother told court that there was a house on the suit land.

- That the appellant only got to occupy the house on the suit land built by Nakandi 25 when she came to nurse her while she was sick. And that by the time the alleged gift deed was executed the respondent had already bought the suit land and constructed thereon. Secondly, that the respondent is said to have bought a two roomed house from Nakiyaga which contradicts the appellant's evidence that there was no space to build a latrine. That in the circumstances the trial Magistrate 30 - rightly reached her decision as the respondent's evidence was more consistent.

Counsel for the appellant in rejoinder reiterated the earlier submissions and added that it was erroneous for the trial Magistrate to conclude that the appellant had no cause of action despite having been in possession of the suit land unchallenged

before the respondent bought. Counsel implored court to find that the two pieces 35 of land are different although originally owned by the late Nakiyaga Betty and what had been trespassed on is what the appellant occupied before 1994.


Ground 2: That the trial Magistrate erred in law and fact when she failed to evaluate the evidence as a whole thus reaching a wrong conclusion.

Counsel for the appellant submitted that from 1993 until 2014 when Nakiyaga Margaret and Nakindi Betty died, the suit land was being occupied by the appellant

- which evidence the trial Magistrate failed to evaluate. That the trial Magistrate in $\overline{5}$ making her decision improperly evaluated the evidence of two documents produced by different witnesses, but authored by the same person and the trial Magistrate chose to believe the respondent's agreement over that of the appellant claiming that the two agreements had different signatures without using a forensic - document examiner to clarify the signatures on the documents if it was the $10$ respondent's contention. That this occasioned a miscarriage of justice to the appellant.

Further, that the trial Magistrate ignored the fact that the sale agreement between Katumba Julius was not witnessed by anyone. That the said agreement was tainted

with illegality as the seller had no Letters of Administration and the respondent 15 never completed paying the purchase price.

That the trial Magistrate also misinterpreted the facts which led to a wrong conclusion as the trial Magistrate misunderstood the suit land. That at the alleged time of purchase in 2011, the appellant was still in occupation of the suit land and

the sale agreement does not indicate the boundaries and measurements of the 20 alleged sale agreement that even when the appellant was in possession she was never told to vacate the suit land.

Furthermore, that at the same time $11/2011$ the owner of the suit kibanja, the late Nakiyaga Margaret had reported a case of trespass against the respondent meaning that the second sale agreement by Katumba Julius to the respondent was drafted and back dated to suit his defence of ownership of the suit kibanja.

Counsel for the appellant concluded that the trial Magistrate ignored the inconsistencies of the respondent and concentrated on the minor inconsistencies of the appellant.

Counsel for the respondent on the other submitted that this ground offends Order 30 43 Rule 1(2) of the Civil Procedure Rules and should therefore be struck out.

Counsel for the appellant in rejoinder submitted that this ground is to point out how the trial Magistrate failed to evaluate the evidence as a whole and therefore arrived at a wrong decision and thus this court should exercise its mandate as an

appellate court and re-evaluate the evidence of the lower court as a whole. 35


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Ground 3: That the trial Magistrate erred in law and fact when she held that the respondent was not a trespasser.

Counsel for the appellant submitted that the trial Magistrate ignored the fact that the respondent occupied more than what he actually bought having stretched to

the appellant's compound where he constructed two rooms and latrines. That the $\mathsf{S}$ respondent also admitted to not having bought the suit property on which the house of the appellant is built.

Counsel for the respondent on the other hand submitted that it was the duty of the appellant to prove the trespass by proving that the disputed land belonged to her,

- that the respondent entered thereupon and the entry was unlawful as it was 10 without her consent. That in the instant case the appellant did not state the date or extent of the alleged trespass and Section 5 of the Limitation Act is to the effect that no action shall be brought by any person for recovery of land after the expiration of twelve years from the date the right accrued to her. (See: Paul Ruija v. Yehu - Rwakabira, C. A. C. A No. 201 of 2016). $15$

Counsel added that in the instant case the appellant did not say when the respondent trespassed, although under paragraph 4(b) of the plaint it is stated that he purchased and constructed on his land between 1993 and 1994. That her evidence that the respondent built in 2004 should therefore be disregarded as a deviation from her pleadings with the result that this suit which was filed in 2016

after 22 years was time barred.

Further, that the trial Magistrate rightly found the respondent's construction as pleaded meant that he was in adverse possession and trespass would not arise as it is the appellant failed to show that the suit kibanja belonged to her, that the respondent entered upon it and the entry was unlawful.

Counsel for the appellant in rejoinder submitted that it was the evidence of the appellant that she refused to sell to the respondent a space for him to construct more commercial rooms and a pit latrine, whereof he forcefully constructed thereon. That the respondent introduced issues of adverse possession which were neither raised in the pleadings nor at trial. And in regard to the word bequeath

30 and gift, counsel submitted that the appellant cannot be faulted but rather the person who took the recorded as she gave her evidence and clearly a gift deed was signed by Nakiyaga.

# Analysis of court:

Duty of the first appellate court:

- The duty of the first appellate court is to re-evaluate the evidence subjecting it to strict scrutiny while being mindful of the fact that it did not have an opportunity - to watch the demeanor of the witnesses. $\mathsf{S}$

In the case of Banco Arabe Espanol v. Bank of Uganda, SCCA No. 8 of 1998, it was held that; a first appellate court, has power and ultimate duty to re-evaluate the evidence before the trial court, subject it to fresh scrutiny and come to its own conclusion, while doing so, the court should be mindful that unlike the trial court,

it did not have the privilege of physically observing the witnesses testify, their 10 responses to questions and observing their demeanor.

I will be mindful of this court's duty as I resolve the instant appeal while putting into consideration the submissions as made by the advocates.

Ground 1: The appellant in the instant case claimed to have been in occupation of the suit land before the respondent bought his land and her occupation of the suit 15 land had been unchallenged. That she obtained the suit land as a gift intervivos from Nakiyaga Margaret who even made a gift deed. That her land and that of the respondent were separated by a cliff. That in 2004 while she was away the respondent came and trespassed on her and she reported the matter to local authorities. That the respondent has never bought land from Katumba as the said 20 sister a mother to Katumba has never owned the suit land.

It was the evidence of PW2 Kevina Nakandi, the mother of the appellant that she bought the suit land on behalf of Nakiyaga Margaret in 1982 which formerly belonged to Ddukka Ntwani. That Margaret took immediate occupation of the suit

- land and constructed a four roomed house thereon which construction PW2 25 supervised. That before her demise the late Margaret sold the lower part to the respondent and it started from the cliff. And the upperpart was given to the appellant from the cliff up to the grave yards. That during construction of the Masaka Road, part of the respondent's land which he bought from Nakiyaga especially the lower part was taken by UNRA. 30 - PW2 added that in 1996 during the respondent's brick laying activities is when he trespassed on the appellant's land by constructing five rooms, a pit latrine and a bathroom while the appellant was away. PW2 denied ever selling land to the respondent. - Further, that upon return of the appellant she queried as to who allowed him to 35 construct on her land whereof he told her that he thought they would come to an

understanding and he purchases the land. The appellant refused to sell and the matter was referred to the local authorities where the respondent asked to be given two years to recover his money.

$\theta_{\rm c}$ Dr. Charles Kasozi corroborated the evidence of PW1 and PW2 that as a neigbour he had always known the suit land to belong to the appellant. $\mathsf{S}$

PW3 also corroborated the evidence of the appellant and

The respondent in his evidence was categorical that he did not buy where the appellant was staying that is in Betty's house. That he bought from Kevina Nakindi only to be told that the land belonged to Betty Nakandi and it was again resold to him by Katumba DW2 a son to Betty Nakandi.

The respondent denied ever being called by any local authorities after being reported by the appellant over the suit land. And that the signature of the gift deed did not belong to Nakiyaga Margaret who sold to him in 1994 and had no problem with him.

I have carefully perused the court record and attached to the respondent's witness 15 statement is a letter dated 31^st October, 2011 where Nakiyaga Margaret reported to state house claiming that the respondent had encroached on her land and refused to vacate the same. It is therefore, no true that Margaret Nakiyaga never during her life time challenge the respondent's occupation of the suit land. Margaret had sold him a portion of her land and the remainder was allegedly 20 encroached on by the respondent. Kevina Nakindi in her testimony denied ever selling the suit land to the respondent.

DW2 told court that he did not have Letters of Administration, meaning he illegally sold to the respondent the suit land which is said to belong to the estate of Betty Nakindi.

The respondent submitted that the trial Magistrate rightly disregarded the gift deed of the appellant because it was not signed by the appellant but by only Nakiyaga whose signature was different from that on the agreement of the respondent.

PW3 a daughter to the appellant to court that there was initially no agreement for the suit land made by Margaret that it was made later on. Meaning that indeed 30 there was original no gift deed made by Margaret to the appellant.

It is true there were contradictions in the appellant's evidence in regard to her having a house on the suit land, and it was PW2's evidence that the appellant was still staying on the suit land in her house even though PW3 stated that there was no house on the suit land. I find that these were not minor contradictions and did touch the root of the case. PW3 told court that the house on the suit land that

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belonged to Betty was destroyed, yet the other witnesses stated that the house was still there and the appellant was occupying it. This is a major contradiction that this court cannot ignore.

I am inclined to believe that the appellant only came on to the suit land when she was nursing Betty Nankandi and the land was never given to her as a gift as was $\mathsf{S}$ rightly submitted by the respondent that the gift deed only surfaced after 2015. And the trial Magistrate rightly reached her decision.

This ground of appeal therefore fails.

$10$

Ground 2: Counsel for the respondent objected to this ground for being in concise and offending the law.

Order 43 Rule 1(2) of the Civil Procedure Rules provides that;

"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or *narrative; and the grounds shall be numbered consecutively.*"

In the case of Sietco v. Noble builders (U) Ltd, Civil Appeal No. 31 of 1995, it was 15 held that; a ground of appeal which offended the rules of court as far as framing grounds of appeal is concerned shall be rejected.

I do concur with the submissions of the respondent in regard to this ground. The ground takes this court on a fishing expedition as to which evidence the trial Magistrate failed to evaluate that aggrieved the appellant. This ground is argumentative and in concise.

The appellant argued that this court has a duty to re-evaluate the evidence as whole which is correct, however, how will this court determine what part of the evidence was not considered by the trial court that occasioned a miscarriage of justice to the appellant if she does not frame proper grounds of appeal that guide court in the resolution of the appeal?

This ground is hereby struck out.

Ground 3: The Supreme Court while defining trespass as per the case of Justine E. M. N Lutaaya v Stirling Civil Eng. Civ. Appeal No. 11 of 2002, held that:

Trespass to land occurs when a person makes an unauthorized entry upon another's land and thereby interfering with another person's lawful *possession of the land'.*

In Sheik Muhammed Lubowa v Kitara Enterprises Ltd C. A No.4 of 1987, the East African Court of Appeal noted that:

*In order to prove the alleged trespass, it was incumbent on the appellant* to prove that the disputed land belonged to him, that the respondent had entered upon that land and that the entry was unlawful in that it was made without his permission or that the respondent had no claim or right or *interest in the land'.*

In the instant case the appellant sued the respondent for trespass, the respondent was said to have trespassed on the suit land and constructed there on between 1993 and 1994. The respondent claims that the appellant took no action for over 22 years however, I disagree with this submission as the appellant clearly told court that she had been reporting to various authorities about the respondent's action but he did not take hid and this was corroborated by PW2. It was PW3' evidence that the trespass occurred in 2003-2004, the appellant and PW2 stated that the respondent trespassed in 2004 and was given up to 2006 to vacate the suit land. These contradictions are grave and therefore, this court is unable to determine when exactly the cause of action arose if any. The respondent brought up adverse possession on appeal yet the same was not pleaded in the lower court. That submission is hereby disregarded.

The appellant in the instant case failed to prove her ownership in the suit land, therefore this court is unable to fault the trial Magistrate in her findings.

This ground of appeal also fails. $20$

$\overline{5}$

$10$

$15$

$25$

In a nut shell the appeal fails on all grounds and is hereby dismissed. Each party bears its own costs. I so order.

Right of appeal explained.

OYUKO ANTHONY OJOK JUDGE $18/12/2024$