[2009] UGHC 253


This is an appeal from the judgment of the Kamwenge District Land Tribunal in which the appellant church sought orders that suit land belonged to them, and for orders that the respondents give them vacant possession over suit land. The tribunal dismissed the claim with costs. The plaintiff church was dissatisfied with the decision and appealed to this court.

The background to the suit was that members of the Christian faith did not have a nearby place of worship. One of the faithful's Buhazi gave them suit land in 1979, and in 1982 a church was opened on suit land. The appellant church subsequently got registered as part of the Rwenzori diocese of the Church of Uganda.

In 2003 the 1^st respondent with his relatives put up a structure on suit land and stopped the Christians from attending church as they claimed that the land belonged to them, hence this suit.

> HIGH COURT FORT PORTAL CERTIFY THAT THIS IS A TRUE OF THE ORIGINAL RECORD

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Seven grounds were set out in the memorandum of appeal as follows.

- 1. The tribunal erred in law and in fact when it entertained a plea of limitation in favour of the respondents given the circumstances of the case, and as a result it reached a wrong and unjust decision. - 2. The tribunal erred in law and in fact in holding that the limitation period had been suspended in favour of the respondents due to disability. - 3. The tribunal erred in law and in fact in holding that the suit land did not belong to the appellant. - 4. The tribunal erred in law and in fact generally in failing to properly evaluate the evidence on record and as a result reached the wrong decision. - 5. The tribunal generally exceeded and or failed to properly exercise its powers and jurisdiction and as a result wrong decisions/orders. - 6. The tribunal erred in failing to hold that ownership in the suit land had devolved to the appellant and as such the respondents were trespassers. - 7. The tribunal erred in failing to award damages and other reliefs as were sought by the appellant.

Mr. Mugisha for the appellant started with the $3^{rd}$ and $4^{th}$ grounds together and then he argued the 1^st and 2^nd grounds also together and ended with the 5^th, 6^th and 7^th grounds also together. Mr. Bwiruka for the respondents did likewise. I will deal with the 3^rd, 4^th, $5^th$ and $6^th$ grounds together. These deal with evaluation of evidence. I will then deal with the 1^st and $2^{nd}$ grounds which are on limitation. I will end with the 7^th ground on the reliefs.

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The issue which the tribunal was asked to determine was whether the suit land belonged to the plaintiff church. That was the prayer of the church. The defendants opposed that prayer claiming that suit land belonged to them. Each party adduced evidence to prove their case. The tribunal believed the evidence of the defendants and so declined to grant the prayer that the suit land belonged to the church.

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This is a fust appeal and court is therefore enjoined to subject the evidence on record to a fiesh and exhaustive evaluation, and arrive at its own conclusions, but always mindful of the fact that unlike the trial court, the appellate court did not have the opportunity of observmg the witnesses as they gave their testimonies in chief and in cross examination in order to ascertain their demeanour. See *Selle* y, *Associated Boat Co. Ltd* [1968] EA 223.

Court must also bear in mind what was held in *Flora Mbambu & Another v. Seranio Mukinell^]* HCB ⁴⁷ that if the conclusion of the trial court has been arrived at on conflicting testimony after seeing and hearing the witnesses, the appellate court in arriving at a decision would bear in mind that it has not enjoyed this opportunity and that the view ofthe trial court as to where credibility lies is entitled to great weight.

The evidence of the witnesses for the church was from Rev. Ruhigira James PW1. He testified that in 1979 one Buhazi Charles donated to them land on which to build a church. The said Buhazi took those concerned to the Chief one Fred Mudimba for confirmation that the land no longer.belonged to him, but to the church.

PW2 Tukwasibwe Kenneth and PW3 Yafesi Ntegycreize testified similarly. It was noted by the tribunal that the local Chief Mudimba Fred was not called to testify. It was also noted that the donor Buhazi did not testify either. There was no evidence as to how he acquired the land. None of the plaintiffs witnesses mentioned how this Buhazi came to be or own the land he gave away to the church. In cross examination Rev. Buhigira PW1 who was the apparent leader of the group who built the church on suit land said that he only knew Buhazi as a fellow church goer. The evidence was that after donating the land, Buhazi he went away.

The rest of the plaintiffs witnesses were church leaders who were not present when the land was allegedly donated to the church. The sum total of their testimony was that the church was officially opened in 1982, and that since then they had remained in peaceful occupation ofthe land without any claim by anybody as to its ownership.


The 1^st defendant told court that he was testifying on behalf of his brothers. He stated court that in 1973 he moved from Kabale and came to his Uncle one Baryaruha who had settled in the area where suit land is situated. He asked the Uncle for land to buy and the Uncle identified the land of Bangumaho Paulo DW1.

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The 1^st defendant bought the land and paid shs 4,500/-. A sale agreement was executed and in that agreement the boundaries of the land were defined. It was witnessed by the village elders and is dated 10/2/1973. A copy was tendered in court as exhibit D1.

This witness told court that he moved his mother and brothers from kabala and they settled on suit land. They enjoyed quiet possession of the land till 1981 when he joined the then rebel forces of NRA and went off to the bush to fight along with his brother.

Upon his return he kept moving to different parts of the country but in 1988 he learnt that the church had encroached on their land. He wrote letters to the church warning them to move away. These letters were together exhibited as a group and marked D1.

It was argued on appeal that the letters were not addressed to the church, and that there was no evidence that the church received them. With respect, the witness was cross examined extensively by the two representatives of the church. None of them questioned the letters or that they were not received. There was only a statement in what one would call final submissions in a trial where parties are not represented that the church never received the letters.

Where a party does not challenge any material evidence in cross examination, it will be 20 taken to have been admitted only subject to it being assailed as being incredulously. The challenge to these letters came up only on appeal in this court, the inference therefore would be that the church received these letters of warning. That therefore means that the church was put on notice about the claim of the defendants as early as 1988.

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**IAT THIS IS A TRUE**

PY OF THE ORIGINAL RECORD

There was further evidence to that effect. DWI Jack Byangumaho a very old man of about 70 years at the time he testified told court that he sold the suit land to the 1^st defendant in company of $1^{st}$ defendant's Uncle Baryaruha. He told court that when the $1^{st}$ defendant Baryabuza moved onto suit land with his mother and brothers but that after the death of their mother, the baboons attacked them and they went away without anyone looking after the land. That was the time when Baryabuza and his brother joined the bush.

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When the church and in particular PW1 came drumming on suit land, he asked them who gave them the defendants land. PW1 responded that the owners had not come back in time, meaning that the owners had abandoned the same. This old mans said he did not know the so called donor Buhaze.

DW2 Yosamu Batware was aware of the dispute. He knew the land to belong to the defendants. When they left looking for jobs and eventually joined the army, the land was left under the care of their uncle Baryaruha, but when he died, his wife remained. In 1979 the church entered suit land and the wife, Anna Maria and others including Ben DW4 and Steven confronted them about encroaching defendants land.

The said Anna Maria was about 70 years old. She told court that how the defendant bought land with the help of his uncle and settled on it. But later he left and his Uncle was caretaking the same till he died. She remained doing so and when the church started beating drums, she confronted them but they argued that the land was free anyway and in any event they were only holding prayers on the same. That they even threw stones at her, led by PW1. The defendant wrote many letters to them in vain and these were delivered by on of the brothers to the church.

DW4 Ben Ntwirenabo also confronted the church about encroaching on the land of his nieces the defendants. But that the church leaders led by PW1 were abusive and said they would only talk to the land owners whenever they came and this was in 1982. He even talked with Rev. Nkumbye PW4 who officiated at the opening of the church and he also

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promised to discuss the matter with the tad owners, but when the land owners came, the church was not talking but instead taking them to court.

The evidence of these witnesses was not challenged at all. That showed that the church was always aware that the land, even if one assumed that the mysterious Buhaze gave it to them, there were other people claiming the same.

It was suipiising theiefoie that the church had no tangible evidence to show how it came by this land. The so called donor was not called to testify. There was no evidence that he is no longei alive. No local area chief was called to verify that the land was donated to the church by a rightful owner.

On the other hand, the defendants adduced evidence of how they came into possession of the land. The sale agreement was not challenged in the least. The seller also testified. PW1 in cross examination agreed that he knew the Ist defendant as a resident ofthe area. The claim that the church had been in undisturbed possession ofsuit land since 1982 was not correct. There was evidence that the church was made aware that there were other people who claimed to'-be the owners ofthe land.

The Evidence Act provides in S. 103 that whoever desires any court to give judgment to any legal right or liability dependent on the existence of facts, which he asserts he must prove the existence of those facts. In *Jovelyn Baru^ahare v. Attorney General* SCCA No. 28 of 1993, Manyindo DCJ, held that where the plaintiff discloses questions of fact, they had to be proved by evidence, for he who asserts must also affirm.

The appellant/plaintiff church asserted that they were the owners ofsuit land. The burden was upon them to prove on a balance of probabilities the truth or existence ofthose facts which they asserted. They failed to discharge that burden. The 3", 4\*. ⁵' and 6' grounds of appeal are accordingly dismissed.

I HIGH COURT FORT PORTA?. ; i CERTIFY THAT THIS IS ATRt'

The $1^{st}$ and $2^{nd}$ grounds of appeal were on limitation. As rightly pointed out by Mr. Bwiruka learned Counsel for the respondent, limitation is a not a sword to be used on defaulting litigants. It is simply a shield by the law to protect those who would otherwise fall prey to unscrupulous opponents. See John Olamong v. Mohamed Olinga [1985] HCB 86 per Odoki J., (as he then was).

The plaintiff church claimed that they were the land owners. They had been on the land for a long time. The plaintiff was using their long stay on suit land as the basis of their claim. No one was challenging their long stay on suit land. The defendants were denying plaintiff's claim of ownership of suit land. They adduced evidence of ownership of suit land. Limitation is a ground of defence and not a basis of a claim of ownership. Limitation therefore was not an issue as the defendants were did not base their defence on long user of the land.

Counsel for the appellant was in agreement with the principle that limitation is a shield and not a sword. He submitted that the matter came up in the lower court because of the counter claim by the defendants. With respect there was no counter claim in the written statement of defence. Limitation was not available to the plaintiff as no one sued them in respect of suit land. The issue of limitation was irrelevant to these proceedings and the appeal in respect thereof is accordingly dismissed.

That leaves only the 7^th ground on the reliefs. The complaint in this regard was that the tribunal made awards which had not been prayed for. The prayer by the appellant church was for a declaration that the suit land belonged to them, and for orders of vacant possession and a permanent injunction.

The tribunal decision was that suit land belonged to the defendants. It made orders in which the plaintiff church was directed to either compensate the defendants at current market price rates within a reasonable time or give vacant possession of suit land. With respect the tribunal made orders which were outside the consequential orders which a court ought to make upon the dismissal of a suit. Once the court dismissed the claim of

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THE GRHUNAL REC

J "" jj^^dcdjhnt^suit land did no^t belong to the plaintiffthat ended its role in ----------- \_ Whethei ⁰¹ not the plaintiff ought to consider compensating the defendants face eviction from suit land and at what rate and the terms of such ^P sation, if any are matters which the parties alone would decide. Ifthis ever came t0 pass' outside this suit

The older of compensation was one which could only be, and ought to have been given as advice to the parties considering the circumstances of this case. It will be set aside. However the advice therein contained will be reiterated by this court.

The appeal is accordingly dismissed with costs in this court and in the tribunal.

JUDGE RUGADY 04/11/2009.

Court: The D/Registrar shall read thisjudgment to the parties.

RUGADYA<AT\yOKl MjLA JUDGE ^| 04/11/2009.