[2025] UGHCLD 87

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 0013 OF 2024 (Arising from The Chief Magistrate's Court of Entebbe at Entebbe Civil Suit No. 004 of 2017)**

**NAKIGONYA JUSTINE ::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS KAWUMA BETTY :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT ALIAS MUKYALA MUNA**

# **BEFORE HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGMENT**

### *Introduction;*

1. This is an appeal against the judgment and order of Her Worship Kabugo Elizabeth, the Magistrate Grade one, in the Chief Magistrates Court of Entebbe at Entebbe delivered on the 12th day of December, 2023. In the lower Court, the Respondent sued the appellant claiming ownership of the suit Kibanja, a declaration that the appellant had no interest legal or equitable in the suit land, a permanent injunction restraining the appellant from laying any

claim on the suit land and taking possession thereof, damages, interest and costs of the suit.

2. The trial Court rendered judgment in favor of the Respondent holding that the Respondent was the rightful owner of the suit land, the appellant was declared a trespasser, a permanent injunction was issued against the appellant and any one claiming through her from any form of trespass and or dealing with the suit Kibanja in any way, general damages of Ug shs 5,000,000/=, interest and costs of the suit. The appellant was aggrieved with the judgement and orders of the trial Court, which she is contesting in the instant appeal.

#### *Background;*

3. The respondent was/is the registered proprietor of the land comprised in Block 438 Plot 531 at Nkumba – Abaita Ababiri. The late Wasswa Mawanda, a father to the appellant's children owned a Kibanja on the plaintiff's land where he constructed a small two roomed house and he also had another home at Kasanyi road. After the death of the late Wasswa Mawanda, his children Ndagire Sandra, Lukanga Geoffrey and their mother Joyce Lubega approached the respondent and requested her to compensate them

by way of sale and or purchase of the Kibanja to enable them pay school fees and she accordingly paid Ug shs 3,000,000/=. The defendant came claiming that the Kibanja and the rooms thereon belonged to the late Wasswa Mawanda the father to her children.

- 4. The Appellant further trespassed on the suit land and constructed a temporary wood structure thereon in which she is doing a charcoal business and refused to render vacant possession to the respondent to date. - 5. The appellant in her defence states that the suit Kibanja was administrative property belonging to the beneficiaries of the late Wasswa Mawanda and the beneficiaries are in the process of obtaining letters of administration. - 6. That the transaction on the suit Kibanja was unlawful, irregular and not binding since the vendors were not the only beneficiaries of the late Wasswa Mawanda and they did not seek consent from the other beneficiaries. - 7. That she was not trespassing on the suit Kibanja but rather it was the respondent deliberately ad fraudulently trying to deprive the beneficiaries of the estate of the late Wasswa Mawanda. That the

matter was tried by Local Council Courts who always ruled in favour of the appellant.

- 8. The trial Court was invited to determine two issues to wit; Whether the resell of the suit Kibanja to the plaintiff was lawful and whether the plaintiff is entitled to the remedies sought? The matter was heard inter parties and the trial Court subsequently rendered its judgement in favour of the Respondent, holding that, the Respondent was the lawful owner of the suit Kibanja, the appellant was declared a trespasser, a permanent injunction, general damages of Ug shs 5,000,000, interest and costs of the suit. - 9. The appellant is dissatisfied with the judgement and the orders therein thus the instant appeal. The appeal is premised on seven grounds of appeal, namely; - **i)The Learned Trial Magistrate erred in law and fact when she concluded that the sale agreement dated 27/12/2012, between the Respondent (Kawuma Betty) and Nakasolya Joyce Lubega, is a valid agreement enforceable at law, thereby arriving at a wrong conclusion.**

- **ii) The Learned Trial Magistrate erred in law and fact when she entertained the matter over which she had no Pecuniary jurisdiction, thereby causing a miscarriage of justice.** - **iii) The Learned Trial Magistrate erred in law and fact when she held that Nakasolya Joyce Lubega rightly transferred the equitable interest, in the suit property, of the late Wasswa Mawanda, back to the Respondent, thereby arriving at a wrong conclusion.** - **iv)The Learned Trial Magistrate erred in law and fact upon concluding that the Respondent rightly sold estate property (of Wasswa Mawanda), without letters of administration and or consent of any/all the actual beneficiaries in the estate.** - **v) The Learned Trial Magistrate erred in law and fact when she concluded that estate property (of Wasswa Mawanda) was distributed in the absence of administrators, thereby arriving at a wrong conclusion.**

- **vi)The Learned Trial Magistrate erred in law and fact upon holding that the Respondent is the rightful owner of the suit property, thereby arriving at an erroneous conclusion that the appellant is a trespasser.** - **vii) The Learned Trial Magistrate erred in law and fact upon awarding the respondent general damages with interest and granting a permanent injunction against the appellant and costs thereby causing a miscarriage of justice.**

#### *Representation;*

10. At the hearing of the appeal, the appellant was represented by M/S MBS Advocates while the respondent was represented by M/s B Edward & Co. Advocates.

#### *Resolution and Determination of appeal;*

11. Before resolving the merits/grounds, it important to point out the duty and powers of the appellate Court. This Court is seized with the duty of determining the merits of the appeal presented before it. In doing so, it is imperative to outline the legal principles governing the exercise of appellate jurisdiction and the powers of

an appellate court. It is well established in law that an appellate court's mandate is not merely ceremonial; it is a substantive and critical component of the judicial process, intended to ensure that justice is not only done but seen to be done. The role and powers of the appellate court are both constitutional and statutory in nature.

- 12. The primary role of an appellate court is to examine the record of proceedings and the decision of the lower court for correctness in law and fact. This Court is tasked with reviewing the findings and conclusions of the trial court and determining whether any error, be it procedural or substantive has occasioned a miscarriage of justice. - 13. In **Kifamunte Henry v Uganda [1998] UGSC 20***,* the Supreme Court underscored the duty of the first appellate court which is to reconsider the evidence, evaluate it afresh, and draw its own conclusions, mindful that it did not have the opportunity to observe the demeanor of witnesses. - 14. In appeals on both fact and law, the appellate court must subject the evidence to fresh scrutiny. This principle was reaffirmed in *Father Nanensio Begumisa & 3 Ors v Eric*

*Tiberaga SCCA No. 17 of 2002,* where the Supreme Court emphasized the duty of the first appellate court to revisit the entire evidence on record and arrive at its own conclusions. However, it is trite law that an appellate court should exercise caution and not interfere with findings of fact by the trial court unless there is a misapprehension of the evidence, a misdirection, or the conclusion reached is plainly wrong.

- 15. I will now proceed and determine the grounds of appeal in the respective order in which they were argued. - 16. Grounds one, three, four and five were argued together and shall be equally be considered together. The grounds are that; - i. The Learned Trial Magistrate erred in law and fact when she concluded that the sale agreement dated 27/12/2012, between the Respondent (Kawuma Betty) and Nakasolya Joyce Lubega, is a valid agreement enforceable at law, thereby arriving at a wrong conclusion. - ii. The Learned Trial Magistrate erred in law and fact when she held that Nakasolya Joyce Lubega rightly

transferred the equitable interest, in the suit property, of the late Waswa Mawanda, back to the Respondent, thereby arriving at a wrong conclusion.

- iii. The Learned Trial Magistrate erred in law and fact upon concluding that the Respondent rightly sold estate property (of Wasswa Mawanda), without letters of administration and or consent of any/all the actual beneficiaries in the estate. - iv. The Learned Trial Magistrate erred in law and fact when she concluded that estate property (of Wasswa Mawanda) was distributed in the absence of administrators, thereby arriving at a wrong conclusion.

#### **Appellant's submissions**

17. That looking at the judgement of the Trial Magistrate vis a vis the recorded evidence and facts in issue, the trial Court failed to consider particular key facts, circumstances and probabilities in regards to this matter. That the appellant together with her family were in quiet possession and use of the suit kibanja together with the deceased and had developed the same with two rental units and

upon the death of the deceased in 2004, the appellant continued collecting rent from the tenants and the Respondents recognized them as Kibanja owners on her land.

- 18. That upon the demise of the late Wasswa Mawanda the Respondent started trespassing purporting to have purchased the same from Ndagire Sandra, Lukwago Geofrey and their mother Joyce Lubega who approached the respondent and requested her to compensate them by way of sale on the 27th day of December 2012. - 19. That Ndagire Sandra, Lukwago Geofrey and Joyce Lubega had no letters of administration and were not the only beneficiaries to the deceased's estate and the Respondent was aware of the said facts however she acted fraudulently to defeat the interests of other beneficiaries. The appellant reported the matter to different authorities but the Respondent kept trespassing. - 20. Counsel for the appellant relied on the provisions of Section 187 of the Succession Act Cap 268 and submitted that no person has a right to property of a person who died intestate unless letters of administration have been granted. - 21. That the Respondent knew the deceased before his death yet she purportedly entered into a sale agreement without conducting

due diligence as to whether the vendors had the necessary consents or letters of administration to deal with the deceased's estate which renders the agreement void ab initio. Counsel further cited the authority of **Hajji Nasser Katende v Vitalidas Halidas & Co. LTD CACA No. 84 of 2003** where court emphasized the need to carry out due diligence stating that land are not vegetables bought from unknown sellers but rather valuable properties and the buyer is expected to make thorough investigations.

22. That the Trial Magistrate was aware that the deceased died intestate and while addressing this issue she relied on the case of

**Dr. Diana Kanzira v Herbert Rwanchwede CACA No. 81 of 2020** stating in her judgement that; PW2 and her children were allocated the piece of land at Abayita, the suit Kibanja just like the defendant was allocated a house at Kasenyi as their separate portions of the estate as beneficiaries to the estate of the late Mawanda. At this point they gained the rights to deal with their interests as they deem fit without prior consent or authorization by the holder of letters of administration.

23. Counsel submits that the facts in **Dr. Diana Kanzira v Herbert Rwanchwede CACA No. 81 of 2020** differed as in the said

case unlike this one there was an administrator with letters of administration. Therefore, the trial Magistrate was wrong to hold that the Respondent rightly purchased the suit Kibanja.

## **Submissions for the Respondent**

- 24. Counsel for the respondent raised a preliminary objection to the effect that the grounds of appeal offended the provisions of Order 43 rule 1(2) of the Civil Procedure Rules. That the appellant did not demonstrate or point out any error committed by the Learned Senior Magistrate Grade one. That failure to frame proper grounds of appeal puts a strain on Court and other parties to deduce what exactly the appellant intends to achieve thus the grounds should be struck out. Regardless, Counsel for the Respondent proceeded to submit on the grounds as below; - 25. That the Trial Magistrate was right to conclude that the sale agreement dated 27th December 2012 between the respondent and PW2 with whom the late Wasswa Mawanda had children was valid and enforceable at law. That she applied all the principles of a valid contract and evaluated all the evidence on record on how PW2 acquired the suit kibanja.

- 26. That the appellant forcefully took over PW2's house that the late Wasswa Mawanda had built for her and her children. At the time of the demise of the late Wasswa Mawanda the appellant was staying in PW2's house along Kasenyi road thus PW2 and her children had no home. That after the death of the late Wasswa, the clan members allocated the suit kibanja to PW2 and her children which originally belonged to the Respondent and had sold it to the late Wasswa Mawanda vide sale agreement dated 23rd March 1993. - 27. That it was PW2's evidence that she approached the respondent and asked if she wanted to be offered the 1st option to purchase the suit kibanja since she wanted money to pay school fees for her children which the respondent accepted and paid Ug shs 3,000,000/= on 27th December 2012. - 28. The Trial Magistrate evaluated the evidence and pointed out clearly that the mother and their children were accorded portions of the estate by clan members and the appellant acquiesced the clan distribution where she did not raise any objection when she was given the property at Kasenyi road. - 29. The Appellant laid personal claims on the suit kibanja claiming to have purchased the same with the late Wasswa

Mawanda but on examining the sale agreement dated 23rd/03/1993 by the trial Court, it was established that the appellant was just a witness on the sale agreement and not a copurchaser as alleged thus the appellant held no interest in the suit land.

30. On the question as to the power of PW2 and her children selling the suit kibanja to the Respondent without authorisation from appointed administrators, the Learned Trial Magistrate relied on the authority of **Dr. Diana Kanzira v Herbert Natukunda Rwanchwende, Robert Tukamuhambwa Rwanchwede CACA No. 81 of 2020** where Court noted that a beneficiary has legal capacity to validly dispose of his/her beneficial interest without the notice or prior consent or authorisation by the holder of letters of administration. That the Trial Magistrate was right to hold that the suit land was rightly sold back to the respondent thus grounds 1,3,4,5 and 6 should be over ruled.

## **In rejoinder;**

31. In rejoinder first to the preliminary objection raised by Counsel for the Respondent, Counsel for the appellant submitted that the grounds of appeal did not offend the provisions of Order 43 rule 1(2)

of the Civil Procdure Rules since they are well framed, precise and each gound identifies the specific errors in the Trial Magistrate's judgement which have been clarified in the appellants submissions.

- 32. That the grounds articulate objections to the decree and the Respodent has responded to the same thus the preliminary objection was intended to mislead Court thus the same should be dismissed with costs. - 33. In rejoinder to the grounds 1,3,4,5 & 6 the Appellants reitatres her averments that the sale agreement was invalid because the vendors had no letters of administration to the estate of the late Wasswa Mawanda thus no capacity to sell off the suit kibanja. - 34. That the Respondent knew that the suit kibanja was purchased by the appellant and the late Wasswa Mawanda but went ahead and dealt with the purported vendors well knowing that they were not the only beneficiaries thus failing on her duty to conduct due deligence before dealing with the estate property. - 35. That the Respondent's purported claim that the appellant forcefully took PW2's house and that the appellant had no interest in the suit kibanja, the late Wasswa Mawanda purchased the suit kibanja. The Respondent and the purported vendors had no

authority to deal with the kibanja thus contravenining the Succession Act and condoning an illegality on the face of the record thus the appeal should be allowed.

## **Analysis by court;**

- 36. These grounds center on the lawfulness of the sale of the suit Kibanja by Nakasolya Joyce Lubega (PW2) and her children to the Respondent in the absence of letters of administration, and whether that transaction conferred a valid and enforceable interest in the land to the Respondent. - 37. It is not in dispute that the suit Kibanja was initially owned by the Respondent, who sold it to the late Wasswa Mawanda vide an agreement dated 23rd March 1993. After his death in 2004, PW2 and her children approached the Respondent and sold the suit Kibanja back to her, prompting the current dispute. - 38. The appellant contends that PW2 and her children had no letters of administration and therefore lacked legal authority to deal with the estate property, relying on Section 187 of the Succession Act, which provides that no person can intermeddle with the property of a deceased person unless granted letters of administration. The trial court found that PW2 and her children had

been allocated the suit Kibanja by clan members, and that the appellant had similarly been allocated a separate home in Kasenyi.

- 39. The appellant asserts that the suit Kibanja was purchased jointly with the deceased and that she continued to occupy and collect rent from the property after his death. The Respondent, however, claimed the appellant was merely a witness to the original sale agreement of 1993 and thus held no interest. The trial court evaluated the documentary evidence and rightly found that the appellant was not a co-purchaser but a witness to the agreement. - 40. PW2 and PW3 stated in their witness statements that after the burial, a family meeting was held where it was decided that the appellant retains the house at Kasenyi which initially belonged to PW2 but the appellant had taken possession of it with her children and PW2 was given the suit Kibanja at Abaita ababiri. PW2 further stated she sold off the same to get school fees for her children and she gave first propriety to purchase the same to the Respondent who was the registered proprietor. The appellant at the time was in possession of the house at Kasenyi and upon the customary distribution where it was decided that she keeps the said house and

PW2 takes the Kibanja at Abayita, the appellant never challenged the said distribution thus acquiesced with the same.

- 41. The appellant later on forcefully entered the suit Kibanja and continues to unlawfully occupy the same where she sells charcoal. - 42. The Trial Magistrate in determining the validity of the sale agreement relied on the essentials of a valid contract as provided for under Section 10 of the Contracts Act, that is capacity to contract, consensus ad idem, intention to contract, consideration and sufficient terms. She qualified all the above and concluded that the agreement was valid. At the instant appeal the appellant seeks to challenge the capacity under which PW2 and her children executed the contract. - 43. I note, the estate of the late Wasswa Mawanda was distributed customarily and all the beneficiaries took possession of what they got and accordingly dealt with it. - 44. The appellant and her children got the house at Kasenyi in which they reside to date while PW2 and her children Ndagire Sandra and Lukanga Geofrey were given the land at Abayita which they disposed of to the Respondent.

- 45. The law recognizes customary distribution of property of intestate persons considering that customary law is part of the law applicable in Uganda. **(Administrator General v George Mwesigwa Sharp CACA No.6 of 1997)** Courts have indeed upheld the validity of customary distribution in various cases, especially where; the deceased died intestate, the clan or family members convene to distribute the property, the beneficiaries are aware and participate or at least acquiesce to the distribution and no letters of administration had yet been granted. - 46. This principle was reaffirmed in **Dr. Diana Kanzira v Herbert Rwanchwende & Others (Supra)**, among others, where the Court emphasized that a beneficiary can deal with their allocated share without needing prior consent from an administrator, so long as the distribution was customary and accepted by the beneficiaries. - 47. Further still Court in **Mugyenzi Justus & 2 others v Kateebe Rose & 3 others Civil Appeal No. 162 of 2021** noted; *"The practice of families distributing assets of the deceased persons without letters of administration is more commonly practiced in Uganda than the practice of distribution of the estate after obtaining letters of administration. After the parties had acquiesced the distribution for*

*over 30 years and the limitation Act extinguished any claimant's rights on account of adverse possession it becomes acrimonious when some of the beneficiaries contest the portion that was given to them at the time."*

- 48. The appellant acquiesced to the customary distribution of the estate of the late Wasswa Mawanda when she took the house at Kasenyi which she never challenged and her acts now amount to approbation and reprobation. The sale between Nakasolya Joyce Lubega, Ndagire Sandra and Lukanga Geoffrey was valid as they were dealing with their beneficial share in the estate of the late Wasswa Mawanda. - 49. This Court finds no legal of factual reason to depart from the findings of the trial Court as the Trial Magistrate rightly evaluated the evidence on the record and arrived to a conclusion that the sale agreement between PW2, Nakasolya Joyce Lubega and her Children Ndagire Sandra and Lukanga Geofrey was valid.

Therefore, these grounds fail.

*Ground 2: The Learned Trial Magistrate erred in law and fact when she entertained the matter over which she had no Pecuniary jurisdiction, thereby causing a miscarriage of justice.* *Ground 6: The Learned Trail Magistrate erred in law and fact upon holding that the Respondent is the rightful owner of the suit property, thereby arriving at an erroneous conclusion that the appellant is a trespasser.*

# *Submissions for the Appellant.*

- 50. Counsel for the appellant relied on the provisions of Section 4 of the Civil Procedure Act which provides that except in so far as is otherwise provided, nothing in this act shall operate to give any Court jurisdiction over suits, the amount of the value of the subject matter of which the pecuniary limits if any of its ordinary jurisdiction. Counsel relied on the case of National Medical Stores v Penguins Ltd HCCA No. 29 of 2010 where Court emphasized that jurisdiction is a creature of a statute and where Court has no jurisdiction to entertain a matter, any proceedings arising thereof are a nullity. He stated that Section 207 (1)(b) of the Magistrates Court Act provides for the jurisdiction of a Magistrate Grade one to a value not exceeding twenty million shillings. - 51. That the value of the subject matter was under estimated by the Respondent at the time of filing Civil Suit No. 004 of 2017 as it was over and above Ug shs 50,000,000 (Uganda Shillings Fifty

Million), that the case was for recovery of land and there were issues of ownership involved therefore the Magistrate Grade one had no jurisdiction to entertain the matter. That the Respondent filed the suit claiming that she had purchased the suit Kibanja from Lubega Joyce and her children who were beneficiaries of the estate of the late Wasswa Mawanda. That the said sale was illegal as the vendors had no letters of administration and neither were they the only beneficiaries to the estate of the late Wasswa Mawanda.

52. That the appellant could not be a trespasser on property on which she was a beneficiary since the appellant and her family were in possession of the Kibanja and collecting rent therefrom and were recognized by the respondent as the registered proprietor. Thus, the appellant was not a trespasser and the Trial Magistrate had no pecuniary jurisdiction to handle Civil Suit No. 0004 of 2017.

## *Submissions for the Respondent*

53. The respondent's counsel submitted that the appellant had raised the issue of jurisdiction on trial as a preliminary point of law and it was over ruled. That Counsel for the appellant wants Court to resolve a matter that was appropriate for the lower Court but only came to this Court on appeal as a ground. That this ground is a none

starter since the trial Court competently dealt with the suit Kibanja whose value was ascertained from the agreements and Court visited Locus to confirm its location.

# **Rejoinder**

54. In rejoinder Counsel submitted that Jurisdiction goes beyond mere errors and it is an illegality that cannot be sanctioned by Court for a Magistrate Grade One to entertain a matter that exceeds his/her pecuniary jurisdiction of Ug shs 20,000,000. That jurisdiction of Court is a threshold issue that can be raised at any stage of the case even on appeal as it was discussed in the case of **Peter Mugota v James Gidundu [1991] HCB 63.**

## **Analysis by court;**

55. Ground two raises an issue of pecuniary jurisdiction, which indeed strikes at the root of a court's authority to hear a matter. Section 207(1)(b) of the Magistrates Courts Act limits the jurisdiction of a Grade One Magistrate to civil matters whose subject matter does not exceed UGX 20,000,000. The Appellant's Counsel argues that the subject matter a Kibanja in a prime location allegedly valued at over UGX 50,000,000 exceeded that statutory cap for matters to be

tried by a Magistrate Grade One. Counsel relies on Section 4 of the Civil Procedure Act and National Medical Stores v Penguins Ltd (HCCA No. 29 of 2010) to assert that jurisdiction is conferred by statute, and proceedings without jurisdiction are a nullity.

56. However, jurisdiction is determined at the time of filing the suit, based on the valuation pleaded in the plaint. In this case, **paragraph**

**7 of the plaint states;** *"The plaintiff further contends that the estimated value of the suit property is about 20,000,000/= (Twenty Million only)"*

- 57. **While paragraph 10 of the appellant's written statement of defence in the lower Court states;** *"Paragraph 7 & 8 of the plaint are denied save the jurisdiction of this Honourable Court"* - 58. While the Appellant now alleges that the suit land was worth over UGX 50,000,000, this appears to be a **post-facto argument**, unsupported by substantive evidence or valuation records from trial. - 59. The Trial Court conducted a locus visit, during which no contrary valuation was officially established. No independent valuation report was adduced by the Appellant at trial to disprove the stated value.

- 60. The trial court properly assumed jurisdiction based on the value pleaded in the plaint. No evidence was led during trial to contradict this valuation. Courts are guided by the pleadings and available evidence not speculative post-trial claims. - 61. Therefore ground 2 also fails. - 62. As for ground six, having found the Respondent's acquisition of the suit Kibanja lawful following the resolution of grounds 1,3,4 & 5 and the Appellant having no right to that particular Kibanja having already received her share, had no legal basis to reoccupy or collect rent from that suit property. - 63. The trial Magistrate, therefore, correctly found that the Appellant was a trespasser on the suit property and this Court upholds the said decision. Thus, this ground fails as well.

Ground 7; The Learned Trial Magistrate erred in law and fact upon awarding the Respondent General damages with interest and granting a permanent injunction against the appellant and costs, thereby causing a miscarriage of justice.

**Submissions by the appellant.**

- 64. The appellant contended that the basis upon which the trial magistrate awarded the general damages was unjustified in the impugned judgement as it is the Respondent together with Lubega Joyce and her children who connived and illegally dealt with the suit land which forms part of the estate of the late Wasswa Mawanda and their actions amounted to intermeddling with the deceased's estate under section 11 of the Administrator General's Act however the Trial Magistrate went ahead and granted general damages to the Respondent which is outrageous. - 65. In regards to costs, Counsel relied on Section 27 of the Civil Procedure Act that the general rule is that a successful party should not be denied costs unless there is justifiable cause. That the Learned Magistrate did not justify the costs awarded to the Respondent against the appellant as the suit property forms part of the estate of the late Wasswa Mawanda and the appellant was protecting her interest in the estate of the deceased.

# **Submission by the Respondent**

66. Counsel for the Respondent submitted that ground 7 also offends the provisions of Order 43 rule 1(2) of the Civil Procedure rules, it is vague since it does not point out the alleged error in the

decision of the lower Court thus this ground should fail. That notwithstanding, all the reliefs were judiciously awarded.

## **In rejoinder**

67. That there was no evidence of loss in the impugned judgement to justify the general damages granted by the Trial Magistrate. That the awards for trespass require proof of damage which was never adduced at the trial Court. That a permanent injunction cannot stem from illegal transactions that the Trial Magistrate erred while granting the said reliefs.

## **Analysis of Court**

- 68. It is a settled principle that general damages are awarded to compensate a party for loss, suffering, or inconvenience that flows naturally from the wrongful act complained of. It is trite law that the award of general damages is within the discretion of the trial Court. - 69. Therefore, an appellate Court can only interfere with the award where it is proved that the trial Court acted on some wrong principle of law. *See; Francis Sembuya v. Allport Services Uganda Limited*

# *— Supreme Court Civil Appeal No. 06 of 1999.*

70. In the present case, The Trial Magistrate found the Respondent had lawfully acquired the suit Kibanja, the Appellant re-entered or

remained on the land without permission, and was collecting rent therefrom.

- 71. This constitutes trespass, which is actionable *per se* meaning that proof of damage is not a prerequisite for an award of general damages. Once trespass is established, the aggrieved party is entitled to general damages even where there is no specific loss proven. An award of general damages is justified to compensate for interference with possession or enjoyment. - 72. Thus, the argument that no loss was proven is misplaced. While the Appellant criticizes the amount awarded as "outrageous," the record does not indicate that the damages were excessive or based on a wrong principle of law. In the absence of such error, an appellate court will not interfere with the discretion of a trial court in awarding damages. - 73. In regards to the permanent Injunction, this is an equitable remedy issued to prevent continuing or future wrongful acts. The trial court rightly found that the Appellant was a trespasser on land lawfully acquired by the Respondent. Therefore, it was appropriate and just for the Court to issue a permanent injunction to restrain the Appellant from further interference with the Respondent's rights.

- 74. The Appellant's argument that the transaction was illegal because the land belonged to the estate is without merit, as the earlier ground confirmed that the clan-based customary distribution had effectively vested interests, and the Respondent purchased from the rightful beneficiaries. - 75. As to costs, Section 27 of the Civil Procedure Act, costs are awarded at the discretion of the Court, and the general rule is that costs follow the event, the successful party is awarded costs unless the Court for good reason orders otherwise. - 76. The Respondent was the successful party in the suit. The trial court did not abuse its discretion in awarding costs or interest, and no evidence has been shown that this occasioned a miscarriage of justice. - 77. Therefore, the award of general damages, a permanent injunction, and costs was within the lawful discretion of the trial court and grounded in clear findings of trespass. The Appellant has failed to demonstrate any error of law, misapplication of principle, or excessiveness warranting appellate interference. - 78. Therefore, this ground also fails.

79. In the final result, the judgement of the trial Court and all orders made therein are upheld and the appeal is hereby dismissed with costs.

**I SO ORDER**.

## **NALUZZE AISHA BATALA**

**Ag. JUDGE**

#### **11 th /06/2025**

### **Delivered electronically via ECCMIS this 11 th day of June**

**2025..**