[2025] UGHC 494

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO HCT-17-LD-CA-0007-2023 (ARISING FROM CIVIL SUIT NO.091 OF 2018 AT LUWERO CHIEF MAGISTRATE'S COURT) NAKIGUDDE MIRIAM….................................................. APPELLANT VERSUS NEEMA JOHN………………….…………...………………RESPONDENT BEFORE LADY JUSTICE HENRIETTA WOLAYO**

#### **JUDGMENT**

#### Introduction

1. By a memorandum of appeal lodged on 13.2.2023, the appellant Nakigudde Miriam appealed the judgement of HW John Paul Obuya, magistrate grade one delivered on 1.12.2022, on three grounds of appeal. Counsel for the appellant filed written submissions on 10.4.2014 while the respondent filed none. I have carefully considered the submissions of the appellant.

#### Background facts

- 2. This case was first heard by HW Awidi Suzan, magistrate grade one Luwero followed by magistrate grade one HW Obuya John Paul who delivered the judgment. - 3. By a plaint lodged on 9.7.2018, Nakigudde Mariam sued Neema John for a declaration that the defendant is a trespasser in as far as he went beyond his recognized kibanja located on the plaintiff's land comprised in Bulemezi Block 421 plot 17 land at Wankanya measuring approximately 12.15 hectares. Additionally,

an order for a permanent injunction restraining the defendant, his agents, servants and all those claiming under him from further trespassing unto the plaintiff's land, general damages, mesne profits and costs of the suit.

- 4. It was Nakigudde's claim that she is the owner and registered proprietor of land comprised in block 421 plot 17 measuring approximately 12.15 hectares, which has Neema's kibanja measuring approximately 10 decimals. - 5. Nakigudde claimed that in 2017, Neema without any claim of right went beyond his kibanja limit, cleared approximately two (2) acres equivalent to UGX 20,000,000/= (Uganda shillings twenty million only), cut trees, vegetation, forests thereon and other products and also cultivated the area. - 6. Nakigudde further claimed that she approached Neema about the said acts of trespass but he paid no attention to her. This compelled her to seek the intervention of the area land committee that ascertained that Neema had trespassed onto her land and ordered him to vacate to no avail. Nakigudde claimed that Neema failed, neglected, ignored and refused to stop the trespass in spite of numerous demands. - 7. Neema filed a written statement of defense on 7.8.2018 in which he denied the claim. He averred that his interest in the suit land as a kibanja holder is approximately 6-7 acres which was inherited as a family from their late father Deziderio Kiwanuka. He averred that the family has co-existed with Nakigudde who at the time of the purchase of the land in question knew their interest. He further averred that he has always approached Nakiggudde to pay her Busuulu which she deliberately refused to accept because of her selfish interests. - 8. In his judgment, the learned trial magistrate found for Neema the respondent with costs and made the following order:

*The defendant is a kibanja holder of the land measuring approximately twelve acres on Block 421 Plot 17 with Sekitoleko, late Kikomeko and Maloka as his neighbours.*

9. Dissatisfied with the judgment, Nakigudde appealed to this court.

### Consideration of the appeal

10. Grounds of appeal

- *i. The learned trial magistrate erred in law and fact when he failed to legally evaluate documentary evidence on the record of the proceedings and consequently came to a wrong decision occasioning a miscarriage of justice.* - *ii. The learned trial magistrate erred in law and fact when he ignored the provisions of the laws governing land in Uganda hence coming to a wrong conclusion, occasioning a miscarriage of justice.* - *iii. The learned trial magistrate erred in law and fact when he failed to conduct locus in quo appropriately, hence coming to a wrong conclusion, occasioning a miscarriage of justice.*

## Duty of the first appellate court

- 11. This court has the duty to re-evaluate the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny before coming to its own conclusion. - 12.**In Father Narsensio Begumisa and 3 Others v Eric Tibebaga SCCA 17 of 2002; [2004] UGSC 18 (22 June 2004) ulii,** court observed that it is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions. - 3

#### **Ground one**

*The learned trial magistrate erred when he failed to properly evaluate documentary evidence on record and thereby arrived at a wrong conclusion.*

13. In the lower court, the following issues was framed for determination:

- *a) Whether the defendant is a trespasser* - *b) Who is the rightful owner of the suit property?* - 14. I have re-evaluated the evidence and the following facts emerge. On an unknown date, PW1 Nakigudde Miriam, 61 years old resident of Makerere Kagugube Zone bought the land in 2007 a portion of which is in dispute. It was the appellant's testimony that prior to the purchase from Mustapha Ssali Yusuf Mukalakasa, the caretaker Kirumira introduced her to Deziderio as the owner of a kibanja measuring twelve decimals which was being used by the widow. Later, Nakigudde started seeing the respondent, son of Deziderio, using the kibanja. In cross examination, it emerged that by the time the appellant went to inspect the land, most probably in 2007, Deziderio was deceased and it was Neema his son, using it. Evidently, this speaks to an inconsistency in the appellant's evidence. - 15. Nakigudde adduced a sale agreement with Mustapha marked Pexh.1. Although in her testimony, she claims that it is dated, an examination this agreement reveals no date even though it was supposedly drawn by a firm of advocates Bazirengede Advocates. Contrary to practice, the name of the advocate is not given and all that can be seen is a signature. - 16. Furthermore, the land is described in the agreement as mailo register volume 6500 Folio 22 Plot 5 land at Musale Bulemezi Wankyaya estate but with no acreage yet in her testimony, Nakigudde gives the acreage as thirty acres (30) and nine decimals.

17. More details worthy of note in this agreement is that there are three sellers, namely, Haj Yusuf Mukalakas; Haji Sulayiman Sekijubo and Mustapha Ali. The three were first registered on the title on 14.10.2008 under instrument No. BUK. 84056 and transferred the land measuring 12.15 hectares (30 acres) to Nakigudde on the same day under instrument No. BUK.84057.


- 18. The fact that the land was still on the blue page by 2007 when Nakigudde bought it and then inspected it are facts in favour of the respondent. It means by the time of purchase and registration, the respondent was on the land. - 19. PW1 Mustapha Ali, 83 years, resident of Kawempe, Kampala district confirmed selling land to the appellant except that he did not recall when. What stands out in his evidence is his testimony that Kadingidi who he later revealed was actually Deziderio father of the respondent occupied only 1/16th of an acre which the trial magistrate equated to the size of his chambers. It was Mustapha's evidence that when he took the appellant to the land after the death of Deziderio, the respondent was hostile and he had extended beyond the kibanja. - 20. It emerged in the defense evidence through the respondent Neema John DW1 that Deziderio Kiwanuka actually bought a kibanja from Alozio Okello on 29.9.1982 and in 1991, he paid busulu to Kirumira. The said Kirumira was mentioned by the appellant in her evidence as the caretaker of the land. - 21. Counsel for the appellant submitted that the learned trial magistrate erred when he relied upon a busulu ticket that was never tendered in evidence yet at page 31 of the written statement of defense, the respondent was cross examined on the kibanja purchase agreement. A close examination of the proceedings shows that both parties were self –represented which placed an extra responsibility on the trial magistrate to look out for documents referred to but not tendered so they are properly tendered. In a nutshell, the busulu ticket and purchase agreement were

on the court record and therefore, while it was tardy of the learned trial magistrate to omit the admission of the respondent's documentary evidence on record, it was not fatal for the learned trial magistrate to reply upon these documents which were part of the pleadings.

- 22. Regardless of these untendered documents, there was sufficient evidence both from the appellant and her witness Mustapha and the respondent and his witnesses, showing that the respondent was on the land prior to the purchase by the appellant. - 23. What is material is that both Mustapha and the appellant acknowledge that by the time she bought the land in 2007, the respondent was on the land by inheritance form his late father Deziderio who had been there as far back as 1991. In fact PW3 Robert Jingo, 62 years resident of Wankanya parish testified that Deziderio Kiwanuka settled on the land in 1979 although he asserts that Deziderio was on 1/8th of the entire land. PW5 Maseruka Edward, 62 years, resident of Kavule LC1, Wankanya and former LC1 chairman also placed the acreage of the respondent's kibanja at 1/8th of an acre. - 24. It follows that at the heart of the dispute is the acreage of the kibanja. While the appellant and her witnesses put it variously at 1/8th; 1/16th of an acre and twelve decimals respectively, the respondent puts it at twelve acres in two portions of eight acres and then four acres. - 25. Going back to the written statement of defense, the respondent averred that his kibanja measured six to seven acres which speaks to a grave inconsistency in the respondent's case. Furthermore, the testimony of owning two portions of kibanja does not appear credible since throughout the testimonies of both parties, they all made reference to '*a kibanja'* and not *'bibanjas'*. For the foregoing reasons, I find that the learned trial magistrate erred when he merged the two alleged bibanja and into one thereby arriving at a wrong conclusion that the respondent owned twelve acres. Instead, I find that the respondent owns

only one kibanja measuring seven acres as he affirms in his written statement of defense. Ground one partially succeeds.

#### **Ground two**

*The learned trial magistrate erred when he ignored the laws governing land in Uganda and hence arrived at a wrong conclusion.*

- 26. Having inherited the holding from his late father Deziderio, it goes without saying that Neema was a second generation occupant and this land being situate in Buganda, and in the absence of compelling evidence to the contrary, it is more probable than not that he is a lawful occupant on mailo land within the parameters of **Section 29 of the Land Act Cap. 236.** - 27. Turning to the defense case, it was the testimony of DW1 Neema John, 54 years, resident of Wankanya village that he owns a twelve acre kibanja on the appellant's land. According to the respondent, his father Deziderio bought the kibanja from Aloziyo Okello in 1982 and another four acres from Ameri. - 28. The respondent's witness DW2 Kyeyune Abdallah, 52 years old, resident of Wankanya who used to hire the kibanja from Dezideriyo before 2006 estimates of the acreage and the kibanja is between twelve to fourteen acres. The last witness DW4 Kasirye Matia, 33 years, is the only one who attested to the year Deziderio died which he estimated as 1998/99. However, as found elsewhere, that the respondent owns seven acres based on his pleading. - 29. The fact that Mustapha had recognized Neema's father as a kibanja holder on his land and also advised Neema to pay Busulu to him after his father had passed is proof that Neema inherited his father's kibanja interest in the land which at the time belonged to Mustapha.

- 30. Therefore, at the time Nakigudde bought the land from Mustapha, she did so subject to the kibanja interest of Neema and as rightly pointed out by the trial magistrate, she was well aware of Neema's claims/interests at the time she purchased the land but went ahead to purchase the same without engaging him. - 31. Worthy of note is that Kisinda Ndeviva DW3 and Kasirye Matia DW4 all allude to the same neighbours bordering the kibanja who are Makoka, Ganafa and this was verified by the trial magistrate at the locus visit. Therefore, Neema cannot be said to be a trespasser. Ground two of appeal fails.

#### Locus in quo proceedings

- 32. I discuss the locus visit because it was the basis of ground three of appeal although counsel did not canvass it in their submissions. - 33. Whereas the record does not show the proceedings at the locus in quo as only the sketch map was drawn, the judgment of the trial magistrate describes clearly what transpired at the locus. Furthermore, the trial magistrate recorded notes on what transpired at the locus although it would have been smarter if he had generated a report. - 34. The trial magistrate noted that the boundary marks of the ten decimals alluded to by Nakigudde were not earmarked. This is consistent with Nakigudde's testimony that those boundary marks were nonexistent. Her only explanation is that they had been tampered with by Neema but as earlier noted, she did not produce any evidence to prove that allegation. The trial magistrate observed that Neema's kibanja measuring approximately twelve acres was well demarcated with "mpanyi" trees with Sekitoleko, late Kikomeko and Maloka as his neighbours, a fact corroborated by his witnesses Kisinda Ndeviva DW3 and Kasirye Matia DW4.

- 35. I have already found that the claim to twelve acres is inconsistent with the respondent's defense where he claims six to seven acres. In premises, the learned trial magistrate erred when he found that the respondent owned twelve acres. - 36. On the whole, the learned trial magistrate properly evaluated the evidence and rightly dismissed the appellant's claim except that he erred when he put the respondent's acreage at twelve acres whereas it was approximately seven acres. In the result, the appeal partially succeeds and I make the following orders: - a) The respondent Neema's kibanja is restricted to seven acres in one portion. - b) The respondent Neema shall vacate the land in excess of the seven acres within thirty days from the date of this judgment and in default, an order for vacant possession shall issue in accordance with the Land Evictions Practice Directions, 2021. - c) A permanent injunction shall issue restraining both Nakigudde and Neema from interfering in each other's quiet possession. - d) As the appeal partially succeeds, each party shall bear their own costs of the appeal and the trial court.

# **DELIVERED VIA ECCMIS THIS 19TH DAY OF JUNE 2025.**

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# **LADY JUSTICE HENRIETTA WOLAYO**

#### **Legal representation**

Kaweesi & Partners Advocates for the appellant