[2025] UGHC 454

## **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

## **CIVIL APPEAL NO. 101 OF 2024**

#### **(ARISING FROM CIVIL SUIT NO. 02 OF 2021)**

**NKOLA JOSEPH ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

## **1. KANYAGO MILIKA**

## **2. BALUKA ZIPORA**

- **3. NASALAWO SARAH** - **4. KWIRI ROBERT ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

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

## **1. Introduction**

2. The Plaintiffs/ Respondents instituted this suit against the Defendant/ Appellant for an order of vacant possession, permanent injunction, damages for trespass, general damages, costs of the suit and any other remedies which court may deem fit.

## **3. Background**

- 4. *The Plaintiffs' case* - 5. The Plaintiffs/Respondents' claim in the lower court as per the amended plaint was that the 1st, 2nd, and 3rd Plaintiffs late father Yokana Mbulamberi left behind (four) sons to wit Kuchana Lazaro, Shamim Sodyo, Kwiri Yokosani and Abosolom Teggu and 3 daughters to wit- Kanyago Mirika, Baluka Zipora and Nasalawo Sarah. That before his demise in 1998, Yokana Mbulamberi bequeathed his estate to his 4 sons. - 6. That Kuchana Lazaro took over possession of the land which was bequeathed to him until 2012 when he died leaving behind no children since he was deaf and dumb. The 1st and the 3rd Respondents were appointed to care take the said land. However, in 2013, the Appellant requested to use the land for farming and it was temporarily given to him by the 1st and 3rd Respondents. That he was given two plots. The one for late Abosolom Teggu who died in 1997 and left the 4th Respondents when he was only two years and the one for late Kuchana Lazaro.

- 7. That the Appellant has been in use of the said pieces of land measuring two acres from 2013 despite several demands for him to vacate the land to the detriment of the Plaintiffs. - 8. The Respondents further contended that in 2020, the 1st Plaintiff /Respondent realized that the Defendant/Appellant had sold part of late Kuchana Lazaro's land. The matter was reported to the LC.1 Chairperson who held a meeting. In the meeting, the Appellant claimed to have purchased the said land but his purchase agreement was lost. The second meeting was again called, but still the Appellant failed to produce the alleged purchase agreements.

## 9. *The Defendant/Appellant's case*

10. The Appellant in his amended written statement of defence denied all the Respondent's allegations and averred that he purchased the two pieces of land from the rightful owner late Yokana Mbulamberi and he paid Ugx: 180,000/= and Ugx: 70,000/= respectively. He took possession of the same and he is still in possession to date.

## **11. Issues for the trial court's determination**

- *(a) Whether the Defendant/Appellant is a trespasser?* - *(b) What are the remedies available to the parties?* - 12. Further, guided by Order 15 rule 5 of the Civil Procedure Rules SI.71 the trial magistrate framed the following issues- - *(a) Who is the owner of the suit land comprising of two pieces?* - *(b) Whether the defendant is a trespasser?* - *(c) Remedies available?* - 13. The trial magistrate found the Appellant to be a trespasser on the two pieces of land and declared that late Tegu and late Lazaro were the rightful owners of the suit land. He further ordered vacant possession and awarded general damages of Ugx: 1,000,000/= plus costs of the suit to the Respondents. - 14. The Appellant was aggrieved with the above decision hence this appeal.

## **15. Grounds of appeal**

(a) That the lower court erred in law and fact when it held that the Appellant did not provide any evidence to confirm the sale of land to him;

- (b) That the lower court's decision and findings offended the rights of the Appellant to a fair hearing and trial; - (c) That the trial court erred in law and fact when it failed to evaluate the evidence presented by the Appellant in isolation with that of the Respondent; - (d) The lower court erred in law and fact when it failed and or omitted to determine the issue of locus of the 1st to 3rd Respondents to sue the Appellant in the lower court; - (e) That the lower court erroneously and or injudiciously exercised its discretion under Order 15 rule 5 of the Civil Procedure Rules, when it in essence and in a disguised manner adopted and framed a disputed issue raised and introduced by the Respondents counsel at the bar; - (f) That consequently, from ground 5 above, the lower court then erred in law and fact by granting orders and prayers that were not sought and or pleaded for; - (g) That the court erred in law and fact when it failed to evaluate the evidence, facts and the law in respect to sustainability of the suit by beneficiaries; - (h) That the trial court's findings are injudicious and occasioned a miscarriage of justice; - (i) That the trial court erred in law and fact when it awarded costs against the Appellants. - 16. The Appellant prayed that the appeal be allowed, the orders of the lower court be set aside and costs be provided for.

## **17. Legal Representation**

- 18. Counsel Aniyu Samporo holding brief for Counsel Masanga Issac represented the Appellant and Counsel Obedo Deogratius represented the Respondents. - 19. This Appeal proceeded by way of written submissions and all parties complied. I will consider them in this judgment.

## **20. Duty of the first appellate Court**

21. I am alive to the duty of this court as the first appellate court which is to evaluate all the evidence on the court record putting in to account that it did not get the chance to see the demeanor of the witnesses while they testified.

22. The above principle was elucidated in the case of *FR. M. BEGUMISA & ORS*

## *VS E. TIBEGANA SCCA NO. 17 OF 2003* where court held that-

*"The appellate court has to bear in mind that its duty is to rehear the case and the court must consider the trial before the Judge with such materials as it might have decided to admit. The court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over ruling it if on full consideration, the court comes to the conclusion that the judgment is wrong"*

23. I will be guided by the principle in that authority.

## **24. Analysis of court**

- 25. The grounds of appeal will be determined in the order adopted by counsel for the Appellant. - 26. It should however, be noted at the onset that grounds two, three, four and seven of the appeal were abandoned by counsel for the Appellant.

# **27.** Ground No.1: *That the lower court erred in law and fact when it held that the Appellant did not provide any evidence to confirm the sale of land to him*

- 28. I have had an opportunity to review all the evidence on the lower court record. The Respondents all together testified that the suit land belonged to their late father Yokana Mbulamberi who died in 1998. He left behind 4 sons and 3 daughters. That before his demise, he bequeathed all his property to his 4 sons to wit- Kuchana Lazaro, Shamim Sodyo, Kwiri Yokosani and Abosolom Teggu. - 29. However, Abosolom Teggu died in 1997 and left behind a son who was two years old and a daughter who was 6 months old. After his demise, his wife remained in occupation of his land. However, she later remarried and left the suit land in the hands of the 1st Respondent to take care of it. That the 1st Respondent used the said land for cultivation. - 30. In the year 2013, the Appellant being a relative of their family, requested for the said land from the 1st Respondent to use it temporarily since the heir was at the time with his mother. The 1st Respondent honoured the Appellant's request and handed him late Abosolom Teggu's land.

- 31. In addition, the Respondents testified that in 2012, Kuchana Lazaro also died and left no child or wife since he was deaf and dumb. That after his demise, the 3rd Respondent was appointed as his heir and was responsible for his piece of land. However, since she was staying and working in Iganga, she appointed the 1st Respondent to take care of Kuchana Lazaro's land. - 32. The Respondents further testified that when the Appellant requested for the land from the 1st Respondent, he was given two pieces of land; the one for late Abosolom Teggu and for late Kuchana Lazaro. - 33. To their surprise however, in 2020, the Appellant sold off part of the suit land. The Respondents reported the matter to the LC.1 Chairperson who called for a meeting between the Appellant and the Respondents. In the meeting, the Appellant claimed to have purchased the suit land from late Yokana Mbulamberi the 1st, 2nd and 3rd Respondent's father. He was asked to produce the purchase agreements but failed and alleged that he lost them during his late father's funeral. - 34. The Respondents further reported the matter to FIDA where he was still asked to produce proof of purchase of the suit land and he still alleged that the purchase agreements got lost during his late father's funeral. The Respondents contended that after the meeting with FIDA, the Appellant offered them Ugx: 3,000,000/= but they rejected it. This fact was admitted by the Appellant. - 35. The Appellant who testified as DW1 said that he purchased the first piece of land approximately 1 acre in 1995 at Ugx: 180,000/= and took possession of the same. He further said that he purchased the last portion in 1997 approximately ½ an acre at Ugx: 70,000/= and took possession of the same. That he has been in possession and occupation of the suit land without any interference from the Plaintiffs until recently when he was brought to court over the suit land. - 36. In addition, the Appellant said that in the year 2018, he lost his documents including his purchase agreements for the suit land during the funeral confusion at his late father's burial time (Nicholas Nkoola). He reported the matter to LC.1 Chairperson and the same matter was later reported at police on 29th of August, 2022 after this suit was filed in court.

- 37. He said in cross-examination that some of the witnesses to his purchase transactions are dead. That Paul, John Kwiri and Abosolom Tegu were also present. - **38.** DW2 (Nkoola Paul Kuchana) testified that he was a witness to the sale agreement when the Appellant was purchasing the suit land in 1995 at Ugx: 180,000/=. In cross-examination at page 24 of the record of proceedings DW2 told court that the Appellant purchased the suit land from the father of the Respondents. DW2 further said; *"I am in court to testify on the 1st portion since there were 2 portions. The 1st portion was about ¾ of an acre…… I only witnessed the ¾ of an acre…"* - 39. DW3 (Kwiri John) a neighbor to the suit land testified at paragraph 9 and 10 of his witness statement that- *"I know the suit land belongs to the Defendant because he is my immediate neighbor. On the 25th day of November 2018, when I sold part of my land to Mulamba Andrew Alex, the Defendant was indicated as one of my neighbors to the land sold."* This is corroborating the Respondents evidence. - **40.** In cross-examination DW3 said that the suit land is 1 ½ acres and the Appellant has been his neighbor since 1995. That he bought land from Mbulambere. He further testified that- *"what makes me confirm is that the defendant has been using the land since 1995…"* - 41. DW4 (Kuchana Yeku) a cousin brother to the Appellant testified that the suit land belongs to the Appellant having purchased the same from Yokana Mbulemberi. He told court that he was a witness on both agreements. The one of 1995 and that of 1997 where the Appellant paid Ugx: 180,000/= and Ugx: 70,000/= respectively. - **42.** In cross-examination he testified that *"The 1st portion he paid Ugx: 180,000/- in 1995, it was ¾ of an acre. The 2nd portion was bought in 1997 at Ugx: 70,000/= and the whole suit land is 1 ½ acres."* - **43.** DW5 (Guma Boaz) who testified as a neighbor said the Appellant has been in possession of the suit land for 28 years. In cross-examination, DW5 said that- *"I was not present when the Appellant purchased the land."* - **44.** DW6 (Kwiri Nathan) in cross-examination at page 29 of the record of proceedings testified that- *"By the time I bought my land from Sarah,*

## *Joseph was already using the land. I have no other proof that he bought the land (defendant) save for me being a neighbor…"*

- 45. *Evaluation of the above evidence* - 46. Whereas the Respondents were consistent in their testimonies that the suit land measured approximately 2 acres, the Appellant and his witnesses were not. DW1 testified that the 1st portion he purchased measured one acre whereas DW2 and DW4 who were allegedly witnesses to that transaction said he purchased ¾ of an acre. This is a contradiction which goes to the root of the case since it touched a material fact of the case. - 47. DW4 further testified that he also witnessed the purchase of the 2nd piece of land by the Appellant but did not state how big it was. All he said was that, after the purchase of the 2nd portion, the whole piece of land measured 1 and ½ acres. However, considering that evidence in line with DW1's evidence who said that the 2nd Portion measured ½ an acre, the whole total of the land purchased by the Appellant would not be 1 and ½ acre as alleged by DW4. In fact, mathematically, it would not even be an acre. - 48. According to the locus in quo visit notes, the 1st portion of land measured approximately 1 and ½ acres and the 2nd portion measured one acre, making the whole piece of suit land to be 2 ½ acres. Thus, the evidence of the Appellants regarding the actual size of the land was full of contradictions. - 49. Counsel for the Appellant submitted that the Appellant led six witnesses to prove his purchase of the suit land as persons who saw and witnessed the purchase agreements by the Appellant and hand over of the two respective pieces of land in 1995 and 1997. - 50. However, the said evidence submitted about by counsel, in my analysis above has been found to be full of contradictions which are major to the fact in issue. - 51. In **Kayinamura V. Uganda (Criminal Appeal No. 0124 of 2022,** Court stated that-

*"Contradiction in witness evidence can be fatal to a conviction only if they relate to material facts, are substantial, and touch on the very substance of the case. Trivial or minor inconsistencies, on the other* ## *hand, do not necessarily undermine a witness's credibility or vitiate a conviction."*

- 52. In this case, the Appellant said he purchased one acre of land as the 1st portion in 1995, whereas DW2 and DW4 who allegedly witnessed the said purchase testified that the 1st portion measured ¾ of an acre. That contradiction was substantial and affected the credibility of the Appellant's evidence in that regard. - 53. The 1st, 2nd and 3rd Respondents alleged that the suit land was bequeathed by their late father to his sons when he was still alive. Their father died in 1998. This means any distribution or bequeath was done before 1998. The Appellant on the other hand claims to have purchased the suit land in 1995 and 1997 respectively, but did not tender in court any proof of the said purchase. DW1, DW2 and DW4 who allegedly witnessed the sale transaction of the 1st portion of land, contradicted themselves regarding the size of the said land. For that reason, this court is hesitant to believe in their side of the story. - 54. Secondly, DW4, who also witnessed the purchase of the second portion of land, did not specify its size but stated that after the purchase, the entire parcel measured 1½ acres. This contradicts the testimony of DW1, as DW4 claimed the first portion measured ¾ of an acre, whereas DW1 stated it was an acre. Given these discrepancies, the total size of the land cannot be consistent. - 55. Section 101, 102 and 103 of the Evidence Act Cap 8 provides that *he who asserts a fact must prove that that fact exists*. Therefore, in the presence of the strong allegations by the Respondents that their late father distributed or bequeathed his land before his demise among his sons and they took possession, and the fact that the Appellant was given the same in 2013 to use it temporarily, it was incumbent upon the Appellant to prove that he was not given the said land by the Respondents. This could only be done through adducing the purchase agreements but he did not. - 56. Counsel for the Appellant submitted that the evidence of lost agreement is admissible under sections 62 (e) and 64 (1) (c) of the Evidence Act Cap 8 as proof of purchase of the suit land. He argued that the sections provide for

proof of contents of a document by oral accounts of contents of a document given by persons who saw it and where the document is lost respectively.

- 57. I have had the opportunity to review the cited provisions of the law, which allow that, in the case of a lost document, its contents may be proved as secondary evidence through oral testimony by a person who has seen the document (see: Section 62(e) of the Evidence Act). However, in this case, the oral evidence presented by the Appellant was riddled with contradictions, leaving much to be desired. - 58. The land in question was allegedly purchased by the Appellant in 1995 and 1997, and he has remained in possession of it since then. Given the length of time that has passed, the Court would not have expected the Appellant and his witnesses to contradict themselves regarding the size of the land if they were being truthful. - 59. It was further the evidence of the Appellant and his witnesses that he has been in possession of the suit land since 1995 and 1997 to date. - 60. In the case of **ATUNYA VARIRYANO V. OKENY DELPHINO CIVIL APPEAL NO. 0051 OF 2017***,* Justice Stephen Mubiru stated that-

*"… proof of ownership of land under customary tenure is not established only by evidence of long user or occupation of land, without more. One is required to show that the acquisition of the land was in accordance with a system of land tenure regulated by laws or customs which are limited in their operation to a particular description or class of persons."*

- 61. Guided by the above authority, mere allegations that the Appellant has been in possession of the land without more is not enough. He ought to have adduced more evidence to prove that he legally and lawful came in to possession of the suit land in accordance with the laws or customs of that particular area. - 62. Be that as it may, the Respondents also testified that Kuchana Lazaaro was deaf and mute. Naturally, parents tend to have deep emotional attachments to their children with disabilities. It is, therefore, unlikely that the late Yokana Mbulamberi would have given land to his disabled son only to later sell it or vice versa.

- 63. In light of the above analysis, I am hesitant to believe in the Appellants story that he purchased the suit land. - 64. Ground No.1 is answered in the negative. - **65.** Ground No.5: *That the lower court erroneously and or injudiciously exercised its discretion under Order 15 rule 5 of the Civil Procedure Rules, when it in essence and in a disguised manner adopted and framed a disputed issue raised and introduced by the Respondents counsel at the bar* - 66. Ground No.6: *That consequently, from ground 5 above, the lower court then erred in law and fact by granting orders and prayers that were not sought and or pleaded for* - 67. Order 15 rule 5 of the Civil Procedure Rules SI.71 provides that-

*"(1) the court may at any time before passing a decree amend the issue or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for the determining the matters in controversy between the parties shall be so made or framed.*

*(2) The court may also at any time before passing a decree strike out any issues that appear to it to be wrongly framed or introduced."*

- 68. My appreciation of the above provisions is that the law grants the presiding judicial officer in any matter with the discretion to amend issues or frame additional issues as he or she deems fit. The provision further allows the judicial officer to strike out issues which appear wrongly framed before passing a decision. - 69. I have reviewed the trial court's judgment and noted that at page 4 of the judgment His Worship Akoko Patrick Synclaire (the trial magistrate) stated that-

*"it must be noted that when I took over this matter, only two issues were framed namely;*

*(a) Whether the defendant is a trespasser?*

*(b) Remedies available?*

*To find whether the defendant is a trespasser or not, court should determine the ownership of the suit land. It is against that* *background that court shall frame new issues as provided for under Order 15 rule 5 of the CPR as amended*

## *issues for resolution*

*(a) Who is the owner of the suit land comprising of two pieces?*

- *(b) Whether the defendant is a trespasser?* - *(c)Remedies available?"* - **70.** Under paragraph 3 of the amended plaint, the Respondents claimed that- *"the Plaintiffs claim against the defendant is for trespass to land, vacant possession, permanent injunction, general damages and costs of the suit."* - 71. Counsel for the Appellant submitted that a new matter and issue that was not sought for nor tried during the hearing of the case was introduced by counsel for the Plaintiff to wit whether the suit pieces of land form part of the estate of the late Tegu Absolom and late Kuchana Lazaro. He argued that this was not an innocent framing of issues by court under O. XV of the Civil Procedure Rules but triggered and introduced by the Plaintiffs in their submission. - 72. I have read the evidence on the lower court record plus the pleadings. In the Respondents' evidence and the pleadings, it is clear that the land in dispute belongs to late Absolom Teggu and late Kuchana Lazaro respectively. On the other hand, the Appellant claimed to be the lawful owner of the suit land having acquired it through purchase. - 73. Following that piece of evidence, the trial magistrate framed another issue of "*who is the owner of the suit land comprising of two pieces of land"*. To this court, the trial magistrate properly exercised his discretion in that regard. - 74. The Respondents having pleaded trespass in their plaint, the issue of ownership had to arise by virtue of the holding in the case of **Sheik Muhammed Lubowa V. Kitara Enterprise Ltd Court of Appeal No.4 of 1987** which highlights the essential elements of trespass and one of them concerns ownership. - 75. It is also trite that any property of the deceased person forms part of his or her estate. From the Respondent's evidence, it is claimed that the suit land belongs to two deceased persons hence, it forms part of their estate.

## 76. **Section 1 of the Succession Act Cap 268** provides that-

*"Except as provided by this Act, or by any other law for the time being in force, the provisions in this Act shall constitute the law of Uganda applicable to all cases of intestate or testamentary succession."*

77. **Section 21 of the same Act** provides that-

*"All property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to the property under this Act."*

- 78. Therefore, since it is claimed that the suit land belongs to the two deceased persons, by implication of the law, the same is supposed to be managed and administered by personal representatives appointed by the courts of law. - 79. I am aware that when the dispute in this matter arose, PW5 (Tegga Manda Lawrence) convened a meeting during which he confirmed Kwiri Robert as the heir of Absolom Teggu and handed over the land to him. He also handed over the land of the late Lazaro Kuchane to Kanyango Mirika, his heir. However, such a mode of transferring the property of a deceased person is not recognized by law. - 80. The legal position is that a court cannot enforce an illegality. The Succession Act, as cited above, applies to all cases of intestacy. Therefore, the law governing the estates of the late Absolom Teggu and the late Lazaro Kuchana is the Succession Act. - 81. **Section 2 of the Succession Act (Supra)** defines a customary heir to mean- *"A person recognized under the rites and customs of a particular tribe or community of a deceased person as being the customary successor of that person."* - 82. Section 2 further defines a personal representative to mean-

*"The person appointed by law to administer the estate or any part of the estate of a deceased person."*

83. A combined reading of these definitions indicates that a customary heir is not the same as a personal representative, and the two should not be confused. A customary heir is merely a successor to the deceased specifically a lineal descendant by blood but does not assume the role of a legal representative.

- 84. In the view of the above background, it is apparent that the person responsible for the management of the deceased's estate is the legal representative appointed by law but not the customary heir. - 85. The trial magistrate, was therefore, right when he clearly pronounced that the 1st and 2nd portions of the suit land belongs to the estate of late Tegu and the estate of late Lazaro respectively which must be managed as per the law. - 86. With the above, I do not agree with the submissions of counsel for the Appellant. - 87. Grounds No.5 and 6 are answered in the negative. - **88.** Ground No. 9: *That the trial court erred in law and fact when it awarded costs against the Appellants.* - 89. Section 27 (1) & (2) of the Civil Procedure Act Cap 282 provides that-

*(1) subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purpose aforesaid.*

*(2) the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of the powers in subsection (1); but the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order."*

90. In **Supreme Court Civil Appeal No. 03 of 2000 Impressa ING. Fortunato Federici V. Irene Nabwire, A. H. O Oder** while referring to section 27 cited above reasoned that-

> *" the judge or court dealing with the issue of costs in any suit, action, cause or matter has absolute discretion to determine by whom and to what extent such costs are to be paid of course, like all judicial discretions, the discretion on costs must be exercised judiciously.*

*How a court or judge exercises such discretion depends on the facts of each case…"*

- 91. Counsel for the Appellant prayed in the alternative that the Appellant and the Respondents being relatives and this being a family matter, each party bears their own costs to ensure harmony, reconciliation and coherency of relationship and family ties. - 92. In the case of **Prince J. Mpuga Rukidi V. Prince Solomon Iguru and others CA 18 of 1994 (SC),** the parties having been relatives, court ordered each party to bear its own costs. - 93. However, Justice Oder in **Impressa ING. Fortunato Federici V. Irene Nabwire (Supra)** stated that the discretion granted under section 27 of the CPR should be exercised judiciously depending on the facts of each case. - 94. In this case, the dispute began in 2020 and was first reported to the clan head, then to the LC1 Chairperson, and later to FIDA. In all these forums, the Appellant was asked to prove his claim of ownership but failed to do so. As a result, PW5 and the clan members resolved to hand over the disputed land to those they believed to be the rightful owners. However, the Appellant reacted violently, leading to the filing of this suit. - 95. With the above at the back of mind, I have been inclined to find that the trial magistrate properly exercised his discretion when he awarded costs to the Respondents. - 96. Ground No. 9 is answered in the negative. - 97. Having answered all the grounds in the negative, ground no. 8 automatically fails. - 98. In the upshot, this appeal is dismissed. Costs of this appeal are awarded to the Respondents. - 99. I so order.

**…………………………… LUBEGA FAROUQ Ag. JUDGE**

*Judgment delivered via the emails of the Advocates of the parties on 26th of June 2025*