[2025] UGCA 237

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESE, JJA

CIVIL APPEAL NO. 133 OF 2022 (Arising from Civil Appeal No. 030 of 2020) (All Arising Out of Civil Suit No. 065 of 2013)

## <table> NABWIIRE JANE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## NANTEZA IRENE:::::::::::::::::::::::::::::::::::

[Appeal from the judgment and orders of the High Court of Uganda at Mukono (Batema J.) dated 28/2/2022 in Civil Appeal No. 30 of 20201

## JUDGMENT OF BYARUHANGA JESSE RUGYEMA, J. A.

#### Introduction:

This is a second appeal from the judgment and orders of the High $[1]$ Court of Uganda at Mukono delivered by Batema J., which in exercise of its appellate jurisdiction allowed the Respondent's appeal, set aside the orders of the trial court and ordered for vacant possession of the suit land and forceful eviction of the Appellant. The Appellant was declared a trespasser on the grounds that she had not acquired any equitable interest or legal title in the suit land.

### **Background:**

The Respondent/Plaintiff sued the Appellant and a one Nassejje $[2]$ Milly for trespass to land in the Magistrate's Court Mukono vide

C. S. No.65 of 2Ol3 and sought for a declaration that she was the rightful owner of the suit land comprised in Kyaggwe Block 106, plot 204 land at Mutuba.

- t31 It was the Respondent's case that she bought the suit land from ^a one Robinah Kasirye on tL/6/2003 at a consideration of Ugx. 5,000,000/=. That on payment of the consideration, the seller handed over a certificate of title for the suit land to the Respondent with duly signed transfer forms whereupon the Respondent transferred the suit land into her names on 17/7/2003. - [4] The Respondent averred that the Appellant and Nassejje Milly trespassed on the suit land while contending that they were bibanja holders on land belonging to a one Alice Mbaliwali who owned titled land next to the suit land. - t51 In her defence, the Appellant/Defendant denied the Respondent/Plaintiff's claims and contended that on 25/4/t9gg, she purchased a kibanja interest on the suit property from a one Moses Ssebanakitta at a consideration of Ugx. 2,400,000/=. That he had in turn acquired his interest from his Auntie, a one Alice Mbaliwali. That therefore, the Respondent/plaintiff acquired her mailo interest on the suit land with notice of the Appellant/Defendant's equitable interest which she ignored. - t6l The trial Magistrate found that the Appellant/Defendant was ^a bonafide occupant of the suit land having purchased it from Alice

Mbaliwali who in turn had occupied it since t9g2 unchallenged. The Respondent/Plaintiff's suit as against the Appellant/Defendant was therefore accordingly dismissed, declaring the Appellant/Defendant a bonafide occupant.

- 17) The Respondent/Plaintiff was dissatisfied with the judgment and orders of the trial Magistrate, and successfully lodged an appeal before the High court. Batema J, found that the present Appellant/Defendant was never a bonafide occupant having purported to buy the suit plot of land from a vendor who had no kibanja to sell. The Appellate court found instead, that the land title of the suit land was lawfully transferred from a one Kizito Fred to Kasirye Robinah and to the Respondent. The appeal was accordingly allowed with costs. - t8l The Appellant/Defendant was dissatisfied with the decision of the I't Appellate court and lodged the present 2"d appeal on the following grounds: - 1. The learned Appellate Judge erred in law when he ignored the legal doctrine of estoppel especially when he held that the trial court erred in law and fact to rely on an agreement not admitted and marked as an exhibit yet the Respondent cross examined the Appellant on the same document. - 2- The learned Appellate Judge erred in law when he held that the purported English translated kibanja sale agreemenr

between Moses Sebanakitta and Jane Nabwire /Now Appellantl was not part of the trial court record.

- 3. The learned Appellate Judge erred in law when he held that Alice Mbowa Mbaliwali had no equitable or legal interest to give to her son as a gift and that the son (Moses sebanakitta) had no legal or equitable interest to sell. - 4. The learned Appellate Judge erred in law when he held that Moses Sebanakitta sold air to the Respondent [Now Appellantl. - 5. The learned Appellate Judge erred in law when he acted on uncorroborated evidence of Kaye William (pwz) that the kibanja ownership of Alice Mbowa Mbaliwati was contested and challenged at the Resistance Council Court. - 6. The learned Appellate Judge erred in law when he held that the Plaintiff [Now Respondentl was able to show that she lawfully bought the suit land.

Duty of the 2"d Appellate Court:

t91 This is a 2'd Appeal and the role of this court as a second appellate court is laid down under Rule 32 (2) of the Judicature (court of Appeal Rules) Directions thus:

> "On any second appeal from a decision of the High Court acting in exercise of its appellate jurisdiction, the court shall have power to appraise the inferences of fact drawn by the trial court, but shall not have discretion to hear additional evidence".

### S.72 CPA on second appeal provides that

# "72. Second Appeal.

(1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that

- (a) the decision is contrary to law or to some usage having the force of law; - (b) the decision has failed to determine some material issue of law or usage having the force of law; - (c) a substantial error or defect in the procedure provided by this act or by any other law for the time being tn force, has occurred which may possibly have produced error or defect in the decision of the case upon merits". - [10]This court is therefore mandated to appraise the inferences of fact drawn by the trial Court i.e. to determine whether or not, as a matter of law, the High Court sitting as the first appellate court dealt with the appeal as by law required, re-evaluated the evidence and made its independent findings in regard to the grounds raised before it; and if the High Court correctly applied the laws and principles of ^a first appellate court regarding first appeals in coming to its judgments, see, E. C. Vs Serebe Appollo Kagoro, Election Petition Appeal No.5 of 2020 (C. A).

#### Counsel legal representation:

- [11]The Appellant was represented by Mr. patrick Kasirye of Ms Bukenya Chemonges & Co. Advocates, Kampala while the Respondent was represented by Mr. Ssozi stephen and Mutumba Fred of M/s Galac Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination of this appeal. - [12] Grounds 1 & 2 are to be considered together because both relate to the admissibility of the kibanja sale agreement between Moses Ssebanakitta and Jane Nabwire, the Appellant. - Ground l. The learned appellate judge erred in law when he ignored to invoke the legal doctrine of estoppel especially when he held that the trial court erred in law and fact to rely on an agreement not admitted and marked as an exhibit yet the Respondent cross\_ examined the appellant on the same document. - Ground 2. The learned appellate judge erred in law when he held that the purported English translated kibanja sale agreement between Moses Ssebanakitta and Jane Nabwire, the appellant, was not part of the trial court record. - [13] Counsel for the Appellant submitted that during the examination in chief of Daniel Mutyaba (DW6), he sought to adduce the sales agreement dated 25/4/tggg as part of the Respondent's [Now

Appellantl evidence. That there was no objection by counsel for the Respondent who proceeded to cross-examine the Appellant on the Luganda sales agreement. That the learned Appellate Judge therefore erred in law when he ignored to invoke the legal doctrine of estoppel especially when he held that the trial court erred in law and fact to rely on an agreement not admitted and marked as an exhibit yet the Respondent cross-examined the Appellant on the same.

- [14]As regards whether the English translated kibanja agreement was part of the trial court record, counsel submitted that the Appellant had attached both the original Luganda sales agreement and its English translation to her written statement of defence to the amended plaint. That it was the mistake of the then counsel for the Appellant, Nathan Kasingye who was holding brief for counsel Enid Bukenya who failed to remind or bring to the attention of the trial court that the English translation of the agreement was on the court file at the time DW6 testified. - [15] counsel concluded however that if court is in any way inclined to fault counsel for his mistake of not reminding the trial court of the fact that the English translation of the agreement was on the court file, then it should be attributed to be a mistake of the Appellant,s counsel that ought not to be visited on the litigant, counsel cited the authority of Godfrey Magezi & Anor vs Sudhir Ruparelia, Civil Appeal No. 1Ol2002 (S. C) in this regard.

- [16] Counsel for the Respondent on the other hand submitted that the doctrine of *estoppel* was neither raised by the Appellant at the trial court nor before the first appellate court. That it is alien to the real questions in this matter to be addressed by this $2^{nd}$ Appellate court and therefore, it would be a misdirection for this court to examine the principle. - [17] As regards whether the English translation of the agreement was on record, Counsel submitted that the record does not reflect the said That Counsel for the Appellant instead intends to agreement. misdirect and lure this court into re-hearing the case by admitting the said agreement which would be an abuse of court since this process was exhaustively handled by the trial court and 1^st appellate court.

# Consideration of the grounds of appeal:

[18] Upon perusal of the Appellant's Written Statement of Defence on the record of appeal, I find that both the Luganda version and the English translation of the Appellant's purchase agreement with Moses Ssebanakitta were attached. On record, at P.11 of the trial Magistrate's court proceedings, Counsel for the Appellant unsuccessfully attempted to have the agreement tendered in evidence. The trial court sustained the objection by the opposite Counsel on the grounds that Jane Atyanga (DW4) through whom it was to be tendered was neither its author nor a party. The agreement was put on record for only identification (ID) purposes awaiting its proper admission through the relevant witness.

- [19]At P.15 of the trial Magistrate's proceedings, Counsel for the Appellant attempted again to tender the agreement in evidence through Daniel Mutyaba (DW6) but it was again rejected on the grounds that it had no English translation. It is Counsel for the Appellant's contention that the trial court wrongly rejected admission of the agreement for being in Luganda yet its English translation was attached to the Appellant's Written Statement of Defence. - [20j Counsel for the Appellant submitted and argued that the 1., Appellate Judge erred in law when he ignored to invoke the legal doctrine of estoppel and held that the trial court erred in law and fact to rely on an agreement not admitted and marked as an exhibit yet the Respondent cross-examined the Appellant on the same document. - [21] Estoppel is an equitable doctrine of rule of evidence provided under S.114 of the Evidence Act. It is to the effect that where a party has by declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, helshe cannot be allowed to deny the truth of that thing, see also Pan Africa Insurance co. Ltd vs International Air Transport t20081 KALR 700.

Under S.28 of the Evidence Act, admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions thereafter contained, for example, information leading to discovery of facts, etc. (S.29 of the Act). - [22]As can clearly be discerned from the above, estoppel is a rule of evidence whereby a party to litigation in certain circumstances is prevented from denying something which helshe had previously asserted to be true. It is the litigant's admission and or conduct that may give rise to estoppel and not that of his or her Counsel as it occurred in the instance case. Estoppel requires reasonable reliance on the representation by a party to the proceedings and not by or from a third party. - [23] In the instant case, Counsel for the Appellant submitted and argued that during the examination in chief of Daniel Mutyaba (DW6), there was an attempt to admit the sales agreement as part of the Appellant's evidence. Respondent's Counsel raised no objection and did not object and went ahead to cross-examine the Appellant on the Luganda version of the sales agreement. It is contended for the Appellant that the Appellate Judge ought to have invoked the legal doctrine of estoppel and find the agreement admitted though not marked as an exhibit since Counsel for the Respondent crossexamined the Appellant on it. - [24] I find this argument flawed. In the first instance, the act of Counsel for the Respondent to cross-examine the Appellant on a document that was received merely for identification purposes was not an admission on the part of the Respondent or her Counsel, of the existence of the document, the agreement. Court rejected the admission of the agreement because it lacked an English translation

and merely marked it for identification, "DID r". It remained the duty of counsel for the Appellant to cail and present the relevant witness to properly tender the document in court.

- [25] Secondly, by Counsel for the Respondent not objecting to the marking of the document for identification and by cross-examining the Appellant on it, in my view, did not mean that the Respondent and her Counsel accepted the admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. As was held in Michael Hausa Vs The State (1994) 7\_g SCNJ 144 cited in Kenneth Nyaga Mwige Vs Kiguta & 2 Ors C. A. C. A No. f 40l200g 12015] eKLR, a document marked for identification is not part of the evidence that a trial court can use in making its decision. - [26] The equitable doctrine of estoppel is only invoked as a shield and not a sword, Akkermans Industries Engineering Vs A. G. C. A. C. A. No.88/2009 [20191 UGCA 2019, and the principle requires ^a reasonable reliance on the representation by a party to the proceedings. while estoppel is a legal principle that prevents parties from contradicting their previous statements or actions if another party has relied on them to their detriment, it cannot be used to override statutory or legal provisions. In brief, the doctrine cannot be used to circumvent the law or prevent a party from asserting what the law is, Leslie vs Sheill tlgt4l 3 KB 607. This point is also illustrated in Southend on Sea Corporation vs

Hodgson (Wickford) Ltd [1962] 1 eB 416, where the question arose whether a public authority could be estopped from exercising its discretionary power to issue an enforcement notice. It was held by the Divisional Court of U. K. that estoppel could not prevent the performance of a statutory duty, and in the case of a statutory discretion, there was a duty to exercise a free and unhindered discretion. See also Jetha Ismail Vs Somani Bros [1960] E. A ²⁶ (CAK) and Maritime Electric Company Ltd vs General Dairies Ltd [1937] AC 610.

- l27lln the instant case, I find that the Appellant could not use estoppel to circumvent the provisions of the Evidence Act regarding admission of documents. s.63 of the Evidence Act requires documents to be proved by primary evidence except in cases provided for under s. 64 of the Act for proof of secondary evidence. The Appellant in this case did not comply with the above provisions of the law to prove the sale agreement in question. - [28] The Appellant did not in this case establish the reasonable reliance required on estoppel to justify the existence and proof of the contents of the sales agreement that had not been produced and exhibited in court as an exhibit. As a result, therefore, the doctrine of estoppel is not applicable in the circumstances of this case. The doctrine cannot be used to circumvent the law, and in this case, the law regarding admission of documents. The Appellant cannot claim to have relied on the representation and or conduct of the Respondent's counsel cross-examining her on a document that had

not been tendered in evidence to justify its existence and proof of its contents.

- [29] The Appellant's second complaint is that the learned Appellate Judge erred in law when he herd that the purported English translated kibanja sales agreement between Moses sebanakitta and the Appellant, Jane Nabwire, was not part of the trial court record. The big question that begs an answer is, when does an exhibit or documentary evidence as in this case, become part of a court record? The answer is found in our Rules of Evidence. - t30l 5.2111 of the Evidence Act defines "Documentary Evidence,, to mean all documents produced for the inspection of the court. Under the same section of the Act, "evidence" denotes inter alia, the means by which any alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved. ss. 61, 62,63 & 64 of the Act go further to provide for proof of contents of documents; that the contents of documents may be proved either by primary or by secondary evidence and documents must be proved by primary evidence except in the cases mentioned in S. 64 of the Act. primary evidence means the document itself produced for the inspection of the court. - [31]The above provisions of the Evidence Act are clearly to the effect that an exhibit has to be produced and exhibited in court during ^a trial or hearing for inspection in proof of facts.

[32] In the instant case, according to Counsel for the Appellant, the Appellant had attached to her Written Statement of Defence copies of both the Luganda version and the English translation of the Appellant's purchase agreement with **Moses** Ssebanakitta. However, upon scrutiny of the copies, I find that though the Luganda version had proof of filing as per the received stamp thereon of the Chief Magistrate's Court, the **English version** copy did not bear such proof. This probably explains why the $1^{st}$ Appellate Court Judge came to a conclusion in his judgment at P.3 that:

> "I have perused the record referred to. The court rejected the agreement written in Luganda. There is nowhere else this agreement with its translation was admitted as an exhibit. Later on appeal, Counsel for the Respondent [present Appellant] smuggled in the English translation as part of the pleadings filed. That is so unprofessional.... Certainly by the time **DW6** testified the English translation was not on record".

- [33] The reason the Appellate Court Judge gave for the above observations were that if the Respondent [present Appellant] had filed both the Luganda and English translation $at$ the commencement of the trial, no reasonable court would have sustained the objection to the tendering in of the exhibit. - [34] The above notwithstanding, i.e. whether the copy of the English translation was attached to the Written Statement of Defence or not, by attaching exhibits to it, they formed part and parcel of the

pleadings, O.6 r.2 CPR, See also Attorney General vs Oluoch 119721 E. A, 392. Pleadings however have never been evidence. The exhibits or documents attached to pleadings become evidence and therefore part of the court record of the proceedings upon being introduced in evidence during the hearing of the case.

- [35] In the instant case, Counsel for the Appellant in the trial court failed to adduce the agreement of purchase of the kibanja of his client and Moses Ssebanakiita but only had it marked for identification. As rightly observed by the 1" Appellate Court Judge, "mere identification and marking of the document does not make it an exhibit admitted in court". - [36] In the Kenyan case of Kenneth Nyaga Mwige vs Austin Kiguta & ² Ors C. A. C. A No. 140 of 2008 I20151 eKLR it was held:

"Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.

In Des Raj Sharma -v- Reginam (1953)19 EACA 370, it was held that there is a distinction between exhibits and articles

marked for identification; and that the term exhibit "should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa v- The State [1994] 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence".

- [3 7] In the instant case, from the above, I find that the failure or omission by the Appellant to formally produce the document (Sale agreement) marked for identification, DID l, together with its English translation during the hearing of the case was fatal to the Appellant's case. This document did not become an exhibit before the trial court. It had simply been marked for identification, and not until a document marked for identification is formerly produced in court it has no evidential weight. - [38] As the 1" Appellate court found, the record shows that the trial Magistrate relied on the document i.e. sale agreement in his analysis of the evidence and determination of the dispute before him. At P.8 of the judgment of the trial Magistrate, he stated thus;

"I find further... Moses Ssebanakitta who sold to the 2'd defendant [Appellant] had legal interest protected under Section 29(5) of [Land] Act... There was no evidence adduced by the plaintiff fRespondent] to prove that the person who sold her did not have legal interest neither the sale was unlawful nor illegal" (Sic).

- [39] The 1"'Appellate Judge faulted the trial Magistrate for relying on an agreement not admitted and marked as an exhibit. The reason advanced by the trial court for not admitting the agreement was that it was in Luganda language without an English translation and as result, it was merely marked for identification. - [40] S.88 CPA provides that the language of all courts shall be English and evidence in all court shall be in English. It follows that exhibits not in the language of court, are not admissible, see Jemimah Nanyonga & 2 Ors Vs Amos Kyangungu, H. C. C. A. No.041 of 20O8, Nkalubo vs Kibirige [f973] E. A 102 and De Souza vs Zenith Printing Works, Kenya C. C. 149/L959. Courts have reiterated the principle that the language of the court is English and all evidence must be recorded in English. The purpose of translation is to allow the court to understand the contents of the document and determine its relevancy and admissibility to the case. The translation process ensures accuracy and prevents misinterpretations or ambiguities which could affect the outcome of a case. - [41] On second appeal, the Supreme Court in Milly Masembe vs Sugar Corporation (U) Ltd S. C. C. A No.1 of 2O00, held;

"Court was not required to re-evaluate the evidence in the same manner as a first Appellate court would as doing so would create unnecessary uncertainty. It was sufficient to decide whether the first appellate court on approaching its task has applied the relevant principles properly".

- l42lln this case, I find that the 1" Appellate court met its legal obligation of evaluating the evidence on record and applied the relevant laws and principles to the facts when the Judge stated that the sale agreement and its English translation were never tendered and admitted in evidence before the trial court. - [43] The above findings of the l" Appellate Judge are supported by the Record of the trial court at pages lO-11:

"I am Atyang Gertrude...

We went to L. C. i.e. Kabaali Godfrey, made our agreement...

Counsel: Pray to tender an agreement in court. /t is translated.

Counsel Mpenja: I object to prayer to be tendered as an exhibit by Ms. Atyang she is not the author and neither a party... The person to tender is 2'd defendant [Appellant].

Counsel rejoinder: Jane Atyang is a witness and signed on it and it is even attached on the written statement of defence.

Court: Objection is sustained, admitted for identification and marked as DIDL".

Clearly, the claim by Counsel for the Appellant that the agreement and its English translation were attached to the Written Statement of Defence would not help the Appellant. The Appellant needed to introduce both versions of the agreement to court for admission in evidence. Counsel had the opportunity after the Luganda version had been marked for identification, to tender both the Luganda and English translation of the agreement through the relevant witness who would include the Appellant who had not testified. However, inexplicably, Counsel chose to close the Appellant's case without the testimony of the Appellant. He should have produced the Appellant to tender that document. There was therefore no mistake of Counsel which this court is being asked not to visit on the Appellant. The Appellant as the defendant just failed to adduce evidence to support her defence and/or defend her claims.

1441ln conclusion, I find that a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit for inspection of court by the relevant witness. In not objecting to the marking of a document for identification as Counsel for the Respondent did in this case, it cannot be interpreted to mean that the Appellant and her Counsel accepted the admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. The 1" appellate judge lived up to his task in evaluating the evidence on record and rightly faulted the trial magistrate for basing his decision on DID I which was a document not formally produced and tendered as an exhibit. It was a fatal error on the part of Counsel for the Appellant not to call the Appellant herself or any other relevant witness to produce the sale agreement with its English translation for formal admission in evidence.

[45] From the foregoing, grounds I &2 are found devoid of any merit and both accordingly fail. The legal doctrine of estoppel did not apply in the circumstances of this case and the purported English translated kibanja sale agreement between Moses Ssebanakitta and Jane Nabwire, the Appellant, did not form part of the evidence on record to be considered by the trial court in making its decision.

- Grounds 3-6: The learned Appellate Judge erred in law when he held that Alice Mbowa Mbaliwali had no equitable or legal interest to give to her son as a gift and that the son (Moses Sebanakitta) had no legal or equitable interest to sell. (3) - The learned Appellate Judge erred in law when he held that Moses Sebanakitta sold air to the Respondent [Now Appellant]. (4) - The learned Appellant Judge erred in law when he acted on uncorroborated evidence of Kaye William (PW2) that the kibanja ownership of Alice Mbowa Mbaltwali was contested and challenged at Resistance Council Court. (s) - The learned Appellate Judge erred in law when he held that the Respondent herein was able to show that she lawfully bought the suit land. (6)

Clearly, grounds 4, 5 & 6 of the appeal are matters of fact prohibited under Ss. 72 & 74 CPA from being entertained by this court as a second appellate court, such grounds of appeal which offend Ss.72 & 74 of the CPA ought to be struck out, Lubega vs Dr. Ddumba C. A. C. A No.1O of 2011. None of these grounds is based on the point of law, they are surely only questions of fact, and as a result, they are accordingly struck out.

- [a6] In the instant case, the learned Appellate Judge's basis to hold that Alice Mbowa Mbaliwali had no equitable or legal interest to give to Moses Sebanakitta as a gift and therefore, that Moses Sebanakitta sold air to the Appellant was as follows: - (a) There is no evidence on record that Alice Mbowa occupied or owned the suit land and kibanja. - (b) The available credible evidence on record by Kaye William (PW2) during cross-examination and which was not challenged, was that Mbowa Alice was the immediate neighbour to the suit land but that between 1981 and 1986 during the insurgence in the area, using her good relationship with military men, she took advantage of the situation and constructed semicompleted structures on the land. She did so amidst protests from the beneficiaries of the land. - (c) After the war, the matter was reported to the Resistance Council Courts which ordered for the opening of the boundaries. Indeed, it was established that Mbowa Alice had encroached upon the suit land. She was stopped from further construction.

- (d) Upon being stopped from further construction on the suit land, Mbowa Alice decided to donate the kibanja and semicompleted structures to Moses Sebanakitta who in turn sold it to the Appellant. - [47lThe above findings of fact by the Appellate judge are supported by the evidence of Kaye William (PW2), a resident of the area for over 30 years and a relative of one of the initial owners of the land, and then Robinah Kasirye (PW3) who purchased the land from its registered owner, a one Kizito Fred and then sold it to the Respondent. - [48] On the other hand, Jane Atyanga (DW4), Kasadi Gracious (DW5) and Daniel Mutyaba (DW6) who testified on behalf of the Appellant, adduced evidence regarding how Mbowa Alice sold a kibanja to Sebanakitta Moses but neither of them established how she, Mbowa Alice came to own it. Neither Mbowa Alice, Sebanakitta Moses nor the Appellant herself testified in court on how Mbowa Alice came to own the kibanja which she later on sold to Sebanakitta Moses for him to pass it to the Appellant. - [49] The Appellate Judge's basis of belief of PW2's evidence that the kibanja ownership of Alice Mbowa was contested and challenged at Resistance Council Court, was that PW2's evidence was solid and was never challenged in cross-examination. There was therefore no need for its corroboration on this aspect since neither Alice Mbowa, the vendor of the suit land to Sebanakkita Moses, nor Sebanakkita

himself or the Appellant herself, testified to rebut the assertion that the kibanja ownership of Alice Mbowa was contested and challenged in the Resistance Council Court. The overwhelming evidence on record is that before purchase, the Respondent carried out due diligence on the land. She found there some shrines belonging to a one Rose Bweyamo who was paid off by the vendor, Robinah Kasirye and she left. The old dilapidated home without iron sheets was part of the shrines. The circumstances under which the semi-completed structure came to be on the land was explained by PW2 as being a resurt of Arice Mbowa's acts of trespass or grabbing of land but not as evidence of establishment of ownership. This was clearly captured by the Appellate Judge.

[50] In conclusion, I find that this court can only interfere with the findings of fact of the Appellate Judge where it considers that there was no evidence to support the finding of fact, R. vs Hassan Bin Said (1942) I EACA 62. In this case, I am not persuaded that the learned first Appellate Judge failed to re-appraise the evidence before him. on the contrary, the evidence of pw2 and pw3 which corroborated the evidence of the Respondent proved that the Respondent rightfully purchased the suit land from its registered owner while there is no evidence that Alice Mbowa had any equitable or legal interest to pass to sebanakiita Moses from whom the Appellant claimed to derive her interest of the kibanja. There is no evidence that either Alice Mbowa or Moses Sebanakiita, were bonafide occupants on the land.

- [51]The Appellant herself, Moses Sebanakiita and Alice Mbowa never testified in court to support the Appellant's claims of bonafide occupancy of the suit land and no reason was advanced by Counsel for the Appellant for their omission to adduce evidence. My understanding as to why they did not testify is that they concede that none of them had any legal or equitable interest in the land and therefore, the Appellant did not lawfully purchase the suit land. Adverse inference has to be inferred from their failure to appear and testify in court to support the Appellant's claims. In the premises, ^I find that the Appellate Judge rightly faulted the trial Magistrate that if he had properly evaluated the evidence on record, he would not have ruled that the Appellant was a bonafide occupant. - [52] As a result of the above, the 3"d 6'h grounds of appeal are found to be devoid of any merit and they accordingly fail. The appeal has failed in its entirety and it is accordingly dismissed with costs.

/t-Dated at Kampala this It day of ....1,Y.:/........, zozs.

Byaruhanga Jesse Rugyema JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESE, JJA

### CIVIL APPEAL NO. 133 OF 2022

(Arising from Civil Appeal No. 030 of 2020) (All Arising Out of Civil Suit No. 065 of 2013)

## <table> NABWIIRE JANE:::::::::::::::::::::::::::::::::::: **VERSUS**

NANTEZA IRENE::::::::::::::::::::::::::::::::::: *Appeal from the judgment and orders of the High Court of Uganda at Mukono (Batema J.) dated 28/2/2022 in Civil Appeal No. 30 of 2020]*

#### **JUDGMENT OF STELLA ALIBATEESE, JA**

I have had the benefit of reading the draft judgement of my learned brother Justice Byaruhanga Jesse Rugyema and concur with his reasoning and orders proposed.

Dated and delivered at Kampala this $18$ ^t day of $JULY$ 2025

> bateese **JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESE, JJA

# CIVIL APPEAL NO. 133 OF 2022

(Arising from Civil Appeal No. 030 of 2020)

(All Arising Out of Civil Suit No. 065 of 2013)

NABWIIRE JANE................... **.....................................**

### **VERSUS**

<table>

NANTEZA IRENE:::::::::::::::::::::::::::::::::::

*[Appeal from the judgment and orders of the High Court of Uganda at Mukono (Batema J.) dated 28/2/2022 in Civil Appeal No. 30 of 2020]*

# JUDGMENT OF HON. LADY JUSTICE EVA K. LUSWATA, JA

I have had the benefit of reading in draft the Judgment of my learned brother Hon. Justice Byaruhanga Jesse Rugyema. I agree with it and I have nothing more useful to add.

Since Hon. Lady Justice Stella Alibateese also agrees with the judgement of Justice Byaruhanga Jesse Rugyema, we agree that the appeal is dismissed with costs.

**Dated** at Kampala this ....... $18^{14}$ ......day of ...................................

EVA K. LUSWATA **JUSTICE OF APPEAL**