[2024] UGHC 419

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT UGANDA HOLDEN AT MBALE

## CIVIL APPEAL NO. 62 OF 2022

# (Arising from Chief Magistrate Court of Sironko Holden at Bulambuli Land Suit No. 30 of 2017)

# NANGOLI JOHN ::::::::::::::::::::::::::::::::::::

### **VERSUS**

### NAGIMESI PASKIKALI ::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

### **JUDGMENT**

## 1. Introduction

2. The Plaintiff/Respondent a step brother to the Defendant/Appellant sued him under land suit No. 30 of 2017 for a declaration of ownership, permanent injunction, general damages, interests at court rate and costs of the suit.

# 3. Background

- 4. The Plaintiff/Respondent's claim was that in the year 2000 the Plaintiff acquired the land in dispute with his young brothers; Magomu, Magona Patrick and Bukomba Fred from their late father Wananzofu Yusuf as per the Will dated $9^{th}/10/2000$ . The said land is situate at Soola Village, Buginyanya Sub-county in Bulambuli District measuring 2 acres. It neighbors Nangoli John in the North, Gidoyi Gasiper at the West, Nangoli John at the East and a stream in the south. That the disputed land had eucalyptus trees but without a colour of right, the Defendant/Appellant trespassed on the land, cut down eucalyptus trees into timber without the consent of the Plaintiff and his young brothers. - 5. The Defendant/Appellant on the other hand partly admitted the Plaintiff/Respondent's claim but in particular denied paragraph 5 (d), (c) and (f) and averred that he was given the suit land by his late father Wananzofu Yusuf in 1977 and took occupation of the same by planting more eucalyptus trees since 1977 to date without any disturbance until 28^th of October, 2017 when he received a summons to file a defence from Bulambuli Court.

# 6. Issues for trial court's resolution were-

- (a) Who is the rightful owner of the suit land? - (b) What remedies are available?

- 7. His Worship Akoko Patrick Synclaire Grade One Magistrate resolved the above issues in favour of the Respondent - 8. The Appellant was dissatisfied with the above finding hence this Appeal.

# 9. Grounds of Appeal

- (a) That the learned trial magistrate erred in law and in fact he held that the Appellant is not the rightful owner of the suit land - (b) That the learned magistrate erred in law and fact when he arrived at decision that the Respondent is the rightful owner of the suit land and yet he has been in possession of the suit land since 1977 up to date. - (c) That the learned trial magistrate erred in law and in fact when he awarded general damages of Ugx: $500,000/$ = - (d) That the learned magistrate erred in law and fact when failed to properly evaluate the evidence on record as whole thereby arriving at a wrong conclusion. - (e) That the decision of learned magistrate has caused a miscarriage of justice - 10. The Appellant prayed that the appeal be allowed, the judgment and orders of the trial magistrate be set aside and costs of the appeal be provided for.

### 11. **Legal Representation**

Counsel Emmanuel Byayo from Justice Center represented the 12. Appellant while counsel Ntuyo Sharfic holding brief for Jyabi Charles James represented the Respondent.

#### 13. **Submissions**

14. This Matter came up for hearing on $28^{th}$ of April, 2024 and both counsel prayed for schedules to file written submissions which was granted by this court. Both parties complied with the given schedules and their submissions are on the court record.

### **Submissions of Counsel for the Appellant** 15.

**Ground No.1:** That the learned trial magistrate erred in law and fact when he held that the Appellant is not the rightful owner of the suit land **Ground No.2:** That the learned trial magistrate erred in law and fact when he arrived at a decision that the Plaintiff/ Respondent is the rightful owner of the suit land and yet the Appellant has been in possession of the suit land since 1977 up to date.

- Counsel for the Appellant submitted that the Appellant who 16. testified as DW1 at page 18 of the record of proceedings said that he has been in possession of the suit land from 1977 to date and his witnesses to wit; DW2 and DW3 all testified at pages 20 and 21 to that effect. - Counsel argued that the trial magistrate ignored the evidence of 17. the Appellant and the witnesses. He contended that the document which

was tendered in court as PEXH.1 was a gift inter vivos document, not a will and yet the translation into English clearly states that the late "bequeathed".

- In the view of the above counsel submitted that if this court treats 18. PEXH.1 as a Will then it cannot be invalid as the beneficiary (the Respondent) witnessed the same. He cited section 50 of the Succession Act. - Counsel further submitted that the Respondent's suit was time-19. barred. He argued that under the Limitation Act, a party disposed of land is allowed 12 years to file a suit for recovery of land and after which such person's title is deemed extinguished. He cited section 5 and 20 of the Limitation Act Cap 80. - He cited Ababiri Muhamood & Four Ors V. Mukomba Anastansia 20. & Another (Civil Suit No. 22 of 2015) [2019] court referred to Hajati Ziribagwa and Anor V. Yakobo Natate HCCS 102/09, where court held that- ".... since this was an action for recovery of land, the cause of action must have arisen at the date the defendant acquired the land..." By inference, a cause of action relating to land should accrue on the date that the plaintiff claims it was wrongly appropriated..." - Counsel also cited **FX. Miramago V. Attorney General [1979]** 21. **HCB 24**, where it was held that the period of limitation begins to run as against the plaintiff from the time the cause of action accrued until when the suit is actually filed. - Following the above authorities and so many others, counsel 22. submitted that the Appellant who has been in possession and still in possession of the suit land to date. - 23. **Ground No. 3**: That the learned trial magistrate erred in law and in fact when he awarded general damages of Uganda shillings Ugx: $500,000/=$ - Under this ground counsel for the Appellant submitted that the 24. Appellant has been in possession of the land from the 1977 and there is no way the Respondent would have suffered any loss or injury. He cited Acire V. May Ann Engom [1992] IV KALR 143, where it was held that court has to take into consideration the value of the subject matter and nature of the wrong. - He argued that general damages are awarded in the discretion of 25. court; they are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the action of the Defendant. He submitted that it is the duty of the claimant to plead and prove that there were damages, losses or injuries suffered as a result of the Defendant's actions.

26. Relying on the above, counsel submitted that the Appellant has been in possession of the land from 1977 and for that reason, there is no way the Respondent would have suffered any loss or injury.

**Grounds No. 4**: That the learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole *thereby arriving at a wrong decision*

**Ground No.5:** That the decision of the learned magistrate has caused a *miscarriage of justice*

- Counsel for the Appellant under these grounds submitted that the 27. Appellant and his witnesses in the trial court clearly stated that the Appellant has been in possession of the suit land from 1977 up to date, but the trial magistrate only considered the evidence of the Respondent and ignored the one of the Appellant. - Counsel contended that the fact that His Worship turned the 28. document considered as a Will by the Defendant into a gift inter vivos is against the law, clearly indicates from the onset that he failed to comprehend the evidence. - Counsel submitted that the trial magistrate failed to evaluate the 29. evidence on the court record as a whole.

#### Submissions of counsel for the Respondent 30.

**Ground No.1:** That the learned trial magistrate erred in law and fact when he held that the Appellant is not the rightful owner of the suit land **Ground No.2:** That the learned trial magistrate erred in law and fact when he arrived at a decision that the Plaintiff/ Respondent is the rightful owner of the suit land and yet the Appellant has been in possession of the suit land since 1977 up to date.

- Counsel for the Respondent submitted that the Respondent PW1 at 31. pages 4 and 5 of the trial court's proceedings, testified that the disputed land located at Musola village, Kilwali Parish, Bugintanya Sub-county in Bulambuli district measuring approximately 2 acres was given to him by his father Yusuf Wonanzofu to divide it among his younger brothers, Magomu Roert, Magona Patrick and Bukomba Fred. - He argued that the Respondent further tendered in court PEXH.1 32. which was executed on 9^th of October, 2000 and duly signed by PW1, himself, PW2, PW4 and PW5 who were present and witnessed the purported Will as locally known to them being made. - Counsel submitted that as per PW1, the disputed land belonged to 33. his father the late Yusuf Wonanzofu who was using it before giving it to the Respondent in the year 2000. He argued that that piece of evidence was corroborated by PW2, PW3 and PW4 in their evidence in court. Counsel added that that piece of evidence was not challenged by the Appellant apart from claiming that he was given the disputed land in

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1977 by his father Yusuf Wananzofu and during cross examination the witness stated that he does not have any other land apart from the two acres of the forest land in dispute.

- Counsel contended that however, in cross-examination, the 34. witness admitted that, he has land on the upper side measuring 4 acres where his home is situated given to him by his father and this land is not in dispute and it neighbors the disputed land. - Counsel submitted that the above contradictions in the Appellant's 35. evidence only allude to the fact that the land given to the Respondent in 1977 by his father was 4 acres of land where the Respondent has a home and not the two acres of the disputed land. - Counsel argued that the Appellant cannot therefore claim to have 36. adverse possession of the two acres of the disputed land since this land is distant from the 4 acres he was given by his father in 1977 where the Appellant has his home and that section 5 of the Limitation Act does not affect the Respondent's action to recover the two acres of the disputed land among other remedies. - Counsel submitted that the Respondent testified in his evidence 37. that he was given the land by his late father on 9^th October, 2000 to divide among his brothers but he was chased away by the Appellant when he went to the suit land to cut eucalyptus trees planted by his father and he reported the same at the District Land Tribunal in Sironko and also engaged the clan chairman to handle the matter. - Regarding PEX.1 counsel for the Respondent submitted that the 38. Respondent's locally interpreted as a Will which legally is a gift inter vivos as correctly interpreted by the trial magistrate. - He cited Andre Akol Jacha V. Noah Doka Onzivua, Civil Appeal 39. No. 001 of 2014 (2016) and Norah Nassozi V. George William Kalule HCCA No. 109 of 2004 to argue that the late Yusuf expressed his interest and willingness to offer the disputed two acres of land to the Respondent and his young siblings per PEX.1

**Ground No. 3:** That the learned trial magistrate erred in law and fact when he awarded general damages of Ugx: $500,000/$ =

40. Counsel for the Respondent cited **section 98 of the Civil** Procedure Act Cap 71 and the case of Waiglobe (U) V. Sui Beverages Ltd Civil Suit No. 16 of 2017 to submit that the trial magistrate exercised his inherent powers of the court as required by law and awarded the general damages. He added that general damages are what the law presumes to be direct or probable consequence that will have resulted from the defendant's breach.


**Ground No.4:** That the learned trial magistrate erred in law and fact when he failed to properly evaluate evidence on record as a whole thereby *arriving at a wrong conclusion*

- Counsel for the Respondent submitted that there is no fast and 41. hard rule as to how evidence is supposed to be evaluated, it is sufficient that the trial magistrate gave consideration to the evidence of both sides, he weighed it and gave reasons for relying on one part and why he did not believe some evidence which formed the basis of his decision. - He contended that the Respondent in the trial court called PW2, 42. PW3 and PW4 who were present when PEXH.1 was written and all their evidence was corroborated by PEXH.1.

**Ground No 5:** That the decision of the learned magistrate has caused a *miscarriage* of justice

43. Under this ground, counsel for the Respondent submitted that it too general and the same should be struck out. He cited Order 43 rule 1 of the Civil Procedure Rules SI.71.

#### 44. Duty of the first Appellate Court

In Banco Arabe Espanol Vs Bank of Uganda, SCCA NO.8 OF 45. **1998** Order JSC stated that-

> "...it is settled law that a first Appellate Court is under the duty to subject the entire evidence on the record to an exhaustive scrutiny and to re-evaluate and make its own conclusion while bearing in mind the fact that the Court never observed the witnesses under cross*examination so as to test their velocity...*" (Also see: Pandya v. R. [1957] 336)

### In Uganda Breweries Limited vs. Uganda Railways corporation 46. (Civil Appeal No.6 of 2001) Court held-

"There is no set format to which a re-evaluation of evidence by a first appellate court should conform. The *extent and manner in which re-evaluation may be done* depends on the circumstances of each case and the *style used by the first appellate court.*"

#### **Analysis of court** 47.

I have carefully looked at the submissions of both sides and all the 48. evidence on the court record. Both parties argued grounds No. 1 and 2 together and other grounds were argued in their chronological order but separately. I will follow the same format. However, since the duty of the first appellate court is to evaluate 49. the evidence on the court record without isolation, for purposes of clarity and emphasis, I will quote the relevant pieces of evidence adduced in the trial court whenever necessary while resolving all the grounds of appeal as below-

**Ground No.1:** That the learned trial magistrate erred in law and fact when he held that the Appellant is not the rightful owner of the suit land **Ground No.2:** That the learned trial magistrate erred in law and fact *when he arrived at a decision that the Plaintiff/ Respondent is the rightful* owner of the suit land and yet the Appellant has been in possession of the suit land since 1977 up to date.

- Under these grounds, Counsel for the Appellant submitted that 50. PEXH.1 was a gift inter vivos document not a Will and yet the translation into English clearly states that late bequeathed. He contended that if this court treats PEXH.1 as a Will, then it cannot be valid. - The trial Magistrate at page 4 of his judgment stated that; "As 51. stated earlier this case depends on PEXH.1 the Plaintiff and his witness calling it a Will but legally speaking is a gift inter vivos." - From the evidence of the Respondent, the late Yusuf Wananzofu 52. called for the meeting in 2000 which was attended by PW1, PW2, PW3 and PW5 in which he gave the suit land to the Respondent in trust for Magoma Patrick who was 16 years, Bukomba Fred who was 12 years and Magona Robert who was 20 years who were still young by then. - 53. I have also perused through PEXH.1 and from its content, I conclude that the trial magistrate was right to refer the same as a gift intervivos but not a Will as referred to by the witnesses. - Counsel further argued that the Respondent's suit was time barred 54. since the suit land was given to the Appellant by their late father Yusuf in 1977 and he has been in possession since then. - PW1 said in his evidence in chief that; "Our father was the one 55. using the land before it was given to me. The Defendant was not using the land before I was given. The Defendant was given the land next to land in dispute. His land is not in dispute. It is about 1 $\frac{1}{2}$ acres.... When they gave me the land, I went there to cut a tree but the Defendant chased me away... I went to the district land tribunal in Sironko and reported but the court was cancelled before the judgment was delivered... I then sent for the clan chairman to ask Nangoli if he had left the suit land but Nangoli chased him with pangas. We went with Police but the Defendant refused to show us the land. It was in November or December 2017. All efforts failed and I filed the matter in court...since I was up, my father told me to go to the Defendant to show me the boundary marks on 15/9/2000 and he showed us the boundary marks. James Wanekye, Kizito Steven

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(chairman LC111) Godongo Godeon, Gasper, Wobwani and Steven *Godongo were present when the Defendant was showing us the boundary.* There were already boundary marks but the Defendant removed them after our father's death..."

- PW1 further said that; "it was our father in possession of the 56. disputed land. Our mother was sleeping on that land. The Defendant entered on the disputed land when our father had died." - PW2 told court that; "I know the land very well its approximately 2 57. acres. It's the late Yusufu Wananzofu's land. Nangoli/Appellant had hired on the lower part of the land. He resides on the upper part. Before the *Plaintiff got it, there was confusion so I was involved to go and look at it as* chairman LC111. Mzee Yusuf had complained in my office saying his sons were cutting his trees illegally, so I visited the locus on $17/9/2000$ . I went and found when the Defendant's late brother Gudunya had cut a big tree. On $9/10/2000$ we had another meeting where Mzee Yusuf gave out his land finally to his children and the Defendant was there. The disputed land was given to Nagimesi Paskali with condition that the three Mzee's yinger children; Magomu, Nagona and Bukona were still under age. *Nagimesii* was to use the land and give the children after they had ground. I signed the minutes that were written in the book of the clan (PEX.1).

He further said that; "the old man Yusuf is the one who planted the 58. trees and was owning it as their family forest before dividing it. He added that there was no dispute until Mzee divided it."

- PW3 Gidongo Steven Gideon told court that; "In 1987 the late 59. Yusuf Wnanzofu called us for a clan meeting. We went with him to the Defendant in Kagoye then, Sola village in Buginyanya, Kilwali Parish. The late Yusuf showed us land and proceeded to the Eucalptus garden, went up to the steam and came back and stood in the middle of the land and stretched his hands out. Behind him was a big tree of eucalyptus, in part of the land Yusuf gave to Nagoli. We did not measure the land. It was big and straight as he stood with open arms and the land which was left was bigger than the one given to Nnangoli. All the land had eucalyptus trees planted by their father. - That on 9/10/2000 Yusuf called us; me, Pakali, James Namuzebe 60. the then the chairman LC2 of Gibuzale Parish, Steven Kizubo the then chairman LC3, Gasper Gidion, Gerald Madette, the late Rose Nabude (one of his girls) and went up to Nangoli...the land which had remained is the land in dispute. The Will says Nagimesi had been given the land as a caretaker but it would be divided among the 3 sons; Nagimesi, Magoma Patrick and Bukoma Fred - The above evidence was fully corroborated by PW4 and PW5 who 61. were all present when late Yusuf allegedly gave the suit land to the

Respondent to divide it among the young three brothers when they become of age.

- DW1 the Appellant said that; "... I was given this land by my father 62. Yusuf Wananzofu. The land is in Sola village, Gidinu Parish formerly *Kilwali Parish in Buginyanya s/c Bulambuli District. It is about two acres.* My father gave me the land in 1977. The dispute started in 2012 up to $2013...$ - In cross-examination he said; "yes I have land neighboring this suit 63. land on the upper side. I was given that land by my father. It has no dispute. It's only the forest in dispute. My home is on the portion that is not in dispute. We did not have any dispute before my father's death.... my *father has never given them this land... my father gave me all the land."* - 64. DW2 said that; "the forest was for father Wanunzofu Yusuf who gave it to Nangoli in 1977, I was present when he gave Nangoli. Nambale, Makabo, Wotunya and Gaasper were present. Nangoli has been in possession and is still in possession of the trees.... the dispute started last year (2018). I heard Nagimesi suing Nangoli.... - In cross-examination DW2 said that; "I am not aware that my 65. *father had given the land to my brothers to share. Some brothers were not* born. - 66. DW3 said that; "*Nangoli was given the suit land by Yusuf* Wananzofu in 1977. It's Nangoli in possession of the forest since 1977 when he was given... the dispute started in 1998 when the father was shifted to the lower side. Nangoli. Late Yusuf Wananzofu distributed all the land among his children and the remaining land was given Nangoli *John......the conflict started in 2018.*

## Section 5 of the Limitation Act Cap 80 provides that-67.

"No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person".

68. In **F. X. Miramago v. Attorney General [1979] HCB 24**, it was held-

> "that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until *when the suit is actually filed. Once a cause of action* has accrued, for as long as there is capacity to sue, time begins to run against the plaintiff. One of the important *principles of the law of limitation is that once time has* begun to run, no subsequent disability or inability to *sue stops it".*

- In the instant case, following the evidence quoted above, the 69. Respondent was given the suit land by their late father Yusuf as per PEXH.1 in 2000. According to DW1 the dispute concerning the suit land started in 2012 and the same was filed in court in 2017, 5 years after the dispute arose. - 70. The Appellant having confirmed that the dispute as to ownership of the suit land started in 2012 and Land Suit No.30 of 2017 filed after 5 years from the time of the said dispute, the said matter cannot be said to have been barred by limitation since the limitation time started to run in 2012 when the said dispute arose and not when they acquired interest in the suit land. - However, following the evidence of PW3 and PW1 the Appellant was 71. given part of the forest land in 1987 in their presence but not 1977 as he alleges. PW3 and PW1 who were present when late Yusuf Wananzofu was giving the piece of the forest to the Appellant said that the part of the forest that was given to the Appellant is in the East and the middle part is what was given to the Respondent as a caretaker for his young brothers. This evidence was corroborated by DW1 when he said at page 19 of the record of proceeding that- "I have land neighboring this suit land on the upper side. I was also given that land by my father."

PW2 further said that; "the Defendant had hired on the lower part 72. of the land and he resides on the upper part. The Defendant was on the *Western and the upper part where he resides".*

Importantly to note from the Respondents' evidence is that the suit 73. land was being used by late Yusuf Wananzofu before he gave it to the Respondent as a care taker for his young brothers.

- In the view of the above, I have found the Respondent's evidence 74. to be more credible and consistent as compared to that of the Appellant. The Respondent called witnesses who were present when late Yusufu Wananzofu was giving the Appellant land and the same people were present when late Yusuf Wananzofu was giving land to the Respondent who confirmed to court that the land late Yusuf Wananzofu gave to the Appellant is different from the suit land. - 75. It is also finding of this court that PEXH.1 was only rebutted by the Appellant on the basis that it was a Will which would not be valid since the Respondent as a beneficially had witnessed its making. However the Appellant did not contest to its contents or to the fact that it is his late father Yusuf Wananzofu from whom he claims to have acquired interest that made it. - As already discussed above that PEXH.1 was a gift inter vivos to 76. the Respondent on behalf of his brothers, it is on that basis in addition to other evidence on record that this court is convinced, that the

Appellant has no interest in the suit land having been awarded by gift to the Respondent for the benefit of his brothers that were still young at the time of the said gift.

- In any case, these people like PW2 and PW4 were chairpersons of $77.$ the area and not related to the family. For that reason, they could not lie to court as they had no interest in the suit land at all. Unlike the Appellant who only called relatives as witnesses. - Secondly, the meeting that was convened in 2000 when the suit 78. land was being given to the Respondent was called by late Yusuf Wananzofu the same person who gave the Appellant his part of the land which is not in dispute. This of course means that he was well aware that the land he was giving to the Respondent, he had never given it out to anybody. - 79. The fact that late Yusuf Wananzofu allowed the Appellant to use the suit land as a family member or tenant, did not make him the owner of the same. - 80. In the circumstances, it is found by this court that the Appellant had never been in possession of the suit land as lawful owner, but use the same as a family member since the same was in the hands of late Yusuf Wananzofu as the lawful owner. - Therefore, the issue regarding the land in dispute having arisen in 81. 2012, the Respondent's suit was not time barred. - 82. Grounds No. 1 and 2 are accordingly answered in the negative.

Grounds No. 3: That the learned trial magistrate erred in law and fact when he awarded general damages of $Uqx$ : 500,000/=

In Kampala District Land Board & George Mitala Vs Venansio 83. **Babweyana, Civil Appeal No. 2 of 2007**, it was stated that-

> "Damages are the direct probable consequences of the act *complained of Such consequences may be loss of use, loss of* profit, physical inconvenience, mental distress, pain and suffering".

- General damages are awarded at the discretion of court to 84. compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the defendant. In awarding such damages, court is mainly guided by the nature and extent of the injury suffered. (See: Uganda Commercial bank v. Kigozi [2002] 1 EA 305). - In the instant case, it is clear that the suit land was given to the 85. Respondent for the benefit of his brothers who were still young. However, after the death of late Yusuf Wananzofu the parties' late father, the Respondent took possession of the suit land but he was chased away by the Appellant who took possession of the same and cut the eucalyptus trees which were on the suit land.

- The eucalyptus trees were planted by late Yusuf Wananzofu 86. according to the Respondents' witnesses. - In the circumstances, I find that the trial magistrate properly 87. exercised his discretion when he awarded the Respondent general damages of Ugx: $500,000/$ =

**Ground No.4:** That the learned trial magistrate erred in law and fact when he failed to properly evaluate evidence on record as a whole thereby *arriving at a wrong conclusion*

88. I have looked at the entire judgment of the trial court and I am convinced that the trial magistrate properly considered the evidence of both sides and came to a proper conclusion.

**Ground No 5:** That the decision of the learned magistrate has caused a *miscarriage* of justice

- Having resolved grounds No. 1, 2, 3 and 4 in the negative, this 89. ground is also automatically answered in the negative. - In the final results, this appeal is dismissed in the terms below-90. - (a) The trial court's judgment and orders are accordingly upheld. - (b) Costs of this Appeal are awarded to the Respondent.

I so order

LUBEGA F. JUDGE

Delivered via email on 5^th June 2024.