[2006] UGCA 55

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JI'STICE C. N. B. KITUMBA, JA HON. JUSTICE S. B. K. KAVUMA, JA IO

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## CryIL APPEAL NO. 38 OF 2OO5

### KAROLINA RWAMUHANDA : : : : : : :: :: : : : :: : : : : : : : : : APPELLANT

#### VERSUS

### GEORGE TUHIRIRWE RESPONDENT

²⁰ [Appeal from the Rullng and Declslon oJ the High Court o:f Ugdndd dt Kampala [Hon. Mr. &stice Tinglnondi Gldeon) dated 2Vh Mag 2OO4]

## JUDGMENT OF THE HON. DEPUTY CHIEF JUSTICE L. E. M. MUKASA-KIKONYOGO

This is an appeal from a judgment of the High Court in Civil Case No. 64 of 1992 delivered at Kampala on 24-O5-O4.

The background of the appeal was that George T\rhirirwe, 30 the respondent, in this appeal, in 1992 sued Carolina Rwamuhanda, the appellant, for a declaration that he was the registered owner of the land comprised in Block 3 plot 138 situated at Mwanjari, Kabale to be referred to as the suit property. He was also seeking a declaration as to whether he was entitled to evict the appellant from his land. He also prayed for general and special damages. The respondent was first registered as the owner of the suit property when he obtained letters of administration in respect of the estate of his late mother, Anasitanzia 40 Tiwangze, in 1991. The suit property had been given to him

by the said mother to whom, in turn, it had been given as a gift inter vivos by her late father, Paulo Ngorogoza and the grandfather of the respondent.

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In his plaint the respondent complained that since 1983, the appellant without any colour of right had occupied the suit property up to date unlawfully. The appellant, repeated demands notwithstanding, refused to give him vacant possession of the suit property.

The appellant in his written statement of defence denied the respondent's claim. She averred that the suit property comprised in Block 3, Plot 138 had been bequeathed to her late husband, Ponsiano Rwamuhanda, by his late father, and graldfather of the respondent, Paulo Ngorogoza. In the alternative, the appellant claimed to be a customary tenant on the disputed land. Her father in-law, Paulo Ngorogoza (the registered proprietor) in 1955 gave pa-rt of the land to her late husband, Ponsiano Rwamuhanda, who was his son. They lived on the land and even constructed a house ald a fishpond thereon. She, however, admitted that in 1973, the late Ngorogoza transferred the land in the name of his daughter, late Anasitanzia Tiwanrye, as a gift inter vivos. The appellant's family continued to live on the land. She, therefore, filed a counterclaim as a lawful customary tenant.

In reply to the counterclaim, the respondent, denied the claim to the developments. Both the alleged house and fish pond were constructed by his late grandfather, Paulo Ngorogoza. He, further, reminded the appellant of the

banishment by the late Ngorogoza of her late husband and family as a result of which they had to take temporar5r refuge in Bunyoro.

At the hearing, the following three issues were framed and agreed upon by the parties; t0

## (a)Whether the appellant was a lawful or bonafide occupant on the suit property.

(b)Whether the respondent was entitled to evict the appellant from the suit property

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- 20 In addition the following three exhibits were admitted - (a) Certilicate of title for land comprised on Block 3 Plot 138 at Mwanjari Exh. Pl. - (bf The letter by Paulo Ngorogoza Ex. P2 - (cl The last will of Paulo Ngorogoza Exh Dl

30 It was pointed out by counsel for the respondent that despite the introduction of new matters in the framed issues the appellant did not amend her pleadings to include the defences of "lawful tenant" or "bonafide occupant'. The defence in the written statement of defence was that the land was a bequest by the late father of the appellant's husband.

A similar complajnt was made against the respondent. He also introduced new facts which were not contained in his pleadings. The aforesaid omissions notwithstanding, counsel for the parties proceeded to submit on the newly framed issues. The learned trial judge did not consider the l0 said omissions detrimental to the case of either party since the claim in the plaint was based on trespass and the appellant's claim to the title to the land through a bequest.

At the trial the case for the respondent, who was the plaintiff, was that the appellant was given a one year licence to stay on the disputed land by the registered proprietor, Anasitanzia Tiwanrye, in 1983. At the expiry of that period, the appellant and her family asked for an extension, which was granted by the registered owner. By the time Tiwanrye 20 died, the appellant and family had not vacated the land. After the death of Tiwangre, the suit property was transferred into the name of the respondent who demanded for vacant possession of the land. When the appellant and family failed to comply with the respondent's request, they became trespassers.

It was vehemently denied for the respondent that the appellant entered on the lald with the consent of the registered owner and that they were lawful or 30 bona-fide/tenants, within the meaning of sections 29(1) and 30 (1) of the Land Act. It followed, therefore, that if the appellant and her family were trespassers, the respondent was entitled to evict them from the suit property. As the appellant had stayed on the suit property illegally for ¹⁰

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years the respondent asked for general damages, an order of eviction and costs.

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In reply, counsel for the appellant submitted on her behalf that she was a lawful occupant on the suit property l0 comprised in freehold Block 3 Plot 138. She started to live on the land in 1955 with her late husband when her father in-law, the late Paulo Ngoro goza, gave part of the land to them. The appellant and family, with full knowledge of the registered proprietor, settled and built on the suit property. In 1958, the appellant's late husband constructed a fish pond on the land. When the title to the land was tralsferred to the late Tiwanrye Anasitanzia, the daughter of Ngorogoza and sister of the appellant's husband, Ponsiano Rwamuhanda, the appellant and her family continued to 20 stay on the land without interruption. The appellant denied the allegation that in 1974, her late husband was banished to Bunyoro. It is true she went to Bunyoro but to work. Her husband and family stayed on the suit property and utilised the land at all material times. During the time Tiwanrye was the registered proprietor and till her death in 1984, she never attempted to evict them. The appellant, hence, was a lawful occupant on the suit property.

30 With regard to the counterclaim, it is not true as alleged by the respondent that late Paulo Ngorogoza evicted late Rwamuhanda and his family from the suit land. The late Ngorogoza could not have evicted his son from the suit property which had been given to Tiwanrye. He no longer owned it. It was argued for the appellant that her claim to the suit property was covered by the definition of a lawful

occupant under section 29 lll (b) of the Land Act which reads as follows:-

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# \*A lautfttl occupant 7s a person uho entered onthe land ulththe consent ofthe reglstered owner and. includes a purchaseft.

l0 The appellant occupied the suit property with the consent of Tiwangre, the registered proprietor at the material time. With regard to the period between 1955 and 1959 when the late Ngorogoza l:,ad not registered the suit property in his nalne, it was submitted by her counsel that she had an equitable interest in the land as a customary tenant. She rejected the will where it was stated that they were given another piece of land because the will was never attested or proved. It, therefore, had no evidential value. In any case it refers to 1974, when the title to the suit property had 20 already been tralsferred in the name of Tiwanrye. It no longer belonged to Ngorogoza.

Further, it was also argued that the appellant and family were bonafide occupants. They lawfully settled on the land in 1955 and subsequently developed it. In 1955 they built ^a matrimonial home thereon whilst in 1958, they constructed a fish pond and in 1964 built a second house. They continued to live on the land with the consent of Tiwangre and they were never challenged until the suit property was registered in the respondent's name in 1991.

The appellant was, hence, a bonafide occupant on the suit property in accordance with S. 29 l2l (al of the Land Act which provides as follows:-

"A bonaflde occupant m'eo,ns a person utho before the comlng lnto force of the Constltrttlon had occupled and utllised or deoeloped ang land unchallenged bg the reglstered ouner for 72 gears onnore".

It was conceded that at the time this suit was filed in 1992 the relationship between tenants/ Landlord was not governed by the 1995 Constitution and the Land Act but the Land Reform Decree of 7975. The law applicable at the material time required adequate notice and full compensation to the tenant. Alternatively, the landlord had to Iind him alternative land and settle him there. It is only in compliance with those requirements that a customary tenant could be evicted. l0

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In the premises, the appellant was not a trespasser on the suit land but a lawful and bona-fide occupant thereon. In view of the above submissions the question of eviction does not arise. The appellant, instead, prayed for general damages on the counterclaim, a declaration that she is a customary tenant on the land and was entitled to the issue of a certificate of occupancy and costs of the suit. 20

Upon listening to the witnesses called by both sides and the submissions and arguments advanced by the counsel for the parties, the learned trial judge found that the appellant was neither a lawful tenant nor a bonafide occupant of the suit property. As a trespasser, the respondent was entitled to evict her. Judgment was hence entered for the respondent for general damages in the sum of shs. 5 million 30

for denial of access to his land, for the ten years the appellant and her family had occupied the disputed land together with costs and interest at the court's rate. The respondent was also granted an eviction order against the appellant.

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Aggrieved by the decision of the court, the appellant lodged an appeal to this Court. The sole ground of the appeal is as follows:-

## '3That the learned trtal Judge erred ln law qnd in fact uhen he held that the appellant/defendant wc,s nelther a lawful nor a bonaJide occupant oJ the ldnd ln dlspute and that the respondent wos entltled to erict her".

20 The court was prayed to set aside the judgment and orders of the High Court passed in favour of the respondent and instead substitute them with an order allowing the appellant's counterclaim and granting her a declaration to the effect that she is a lawful and a bonafide occupant of the land in dispute. She also prayed for costs in this Court and the High Court.

30 By consent, counsel for the parties liled written submissions. As the first appellate court it is incumbent on this Court to appraise the evidence on record and draw its own inferences of fact. See Rule 30 (1) of the Rules of this Court and the case of Pandya vs R. (1957) E. A 336; James Nsibambi vs Lovinsa Nankya H. C. C. Appeal No.4 of 1980 HCB 8.

It Before I proceed to discuss the issue before this Court, ^I wish to briefly comment on two matters which were not decided by the court. Firstly Mr. Ssentomero, learned counsel for the respondent wondered why the appellant had not amended her pleadings to conform to the new framed issues agreed upon.

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Similarly counsel for the appellant complained about the introduction of a new claim of a licence which had not been part of the pleadings. However, both sides proceeded with their submissions on the framed issues without effecting amendments in their pleadings. The parties presumably waived the omission.

Another matter which carne up by way of a preliminary point of law, but which was apparently not ruled on by the court, was the effect of the 1995 Constitution and the Land Act 1998 enacted subsequent to the filing of the suit in 1992. It was the contention of counsel for the appellant that the present suit filed in 1992 and based on old relationship repealed by the two enactments could not be maintained. Under the new sections 29 lll and 29 l2l of the Land Act, a new legal position of "A lawful occupant and bonafide occupant", counsel submitted, the appellant became a lawful occupant. She could not be evicted. Counsel for the respondent did not agree with him. He described the submission as misconceived. The learned trial judge did not consider it necessar5r to rule on the issue at that stage. He deferred it to his decision on the main 20 30 I SSl]CS.

I will now proceed to consider the sole issue in this appeal namely whether the appellant was a lawful or a bonafide occupant or a trespasser.

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t0 As the evidence stands on record and in accordance with the respondent's conferencing notes, it was not disputed that the appellant and family settled and built on the suit land in 1955. What is in dispute is the banishment of the appellant's husband, Rwamuhanda and his family by his late father, Paulo Ngorogoza.

It is the appellant's case that her husband never left the suit land as claimed by the respondent. It was the appellant and some of the children who moved to Mugalike on her transfer as a teacher of Domestic Science. The legal position z0 on the suit land in 1.973 was vested in the late Tiwanrye, the mother of the respondent and sister of the late Ponsiano Rwamuhanda, as the registered owrler. In the premises Ngorogoza could not have banished anybody from the suit land which he had already parted with and not registered in his name but in that of Anasitanzia Tiwangre's, his daughter.

30 Further, the late Ponsiano Rwamuhanda and family, on the evidence before court continued staying on the suit land without any challenge by the registered owner, namely, the late Anasitanzia Tiwanrye. It follows, therefore, in the absence of any evidence to the contrary, with due respect to the learned trial judge's finding, I have no cogent reason to disbelieve the appellant that she and her family had been

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staying on the said land legally and they had an equitable interest in it. Clearly the interest would be protected by the provisions of section 29(1f and (2) of the 1998 Land Act which read as follows:-

- l0 ¹ ttLawful occupant" means a person occupying land by virtue ofthe repealed - (i) Busuulu and Envujjo law of 1928 - (ii) Toro Landlord and Tenant Law of 1937 - (iiil Ankole Land Law and Tenants Law of 1937 - (b) A person who entered on the land with the consent of the registered owner and includes a purchaser or

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- (cl A person who had occupied land in as ^a customary tenant but whose tenancy was not disclosed or compensated for by the registered ourner at the time of acquiring the leasehold certilicate of title. - l2l ttBonaflde occupantt' means a person who before the coming into force of the Constitution:- - (al had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more or - (bl had settled on the land by the Government or an agent of the Government which may include a local authority.

l4l For the avoidance of doubt a person on land on the basis of a licence from the registered owner shall not be taken to be a lawful or bonalide occupant under this section.

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IO With regard to the findings of the learned trial judge that the appellant being a licensee became a trespasser when she refused to quit the land when required to, by the respondent, it is not supported by the evidence. In addition to the claim of equitable interest, it is important to note that in his will written in 1982, admitted in evidence with the consent of the pa-rties, as EX D1, the late Paulo Ngorogoza bequeathed Block 3 Plot 4 to late Rwamuhanda.

However, in his letter written in 1984, also admitted in 20 evidence as Exh. Pl, the said late Paulo Ngorogoza, stated that "late Rwamuhanda" should remain where he had built his matrimonial home and exchange it with Block 3 Plot 138, he had given to the late Anasitanzia Tiwanrye. Tiwanrye had then been given Block 3 Plot 4 which was adjacent to the disputed land. This piece of evidence was not controverted.

30 Besides, the claim of the banishment of late Rwamuhanda from the suit land was not mentioned in the late Ngorogoza's will which supports the appellant's case that her husband was never banished. I find it hard to believe that the late Ngorogoza would have left out such an important point in his last will which, no doubt, would have affected the shares of the beneficiaries of his estate.

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Another piece of evidence which supports the appellant's claim is the evidence of the respondent that the banishment of the late Rwamuhanda continued till the death of his grandfather. This could not have been true because the appellant returned in 1981 and the grandfather died in l0 1984. It is not correct either to say that Rwamuhanda begged Tiwanrye to return to the land after the death of the grandfather because again it was in 1984. The appellant returned from Mugalike in 1981 but according to her unchallenged evidence, her late husband, never left their matrimonial home to go to Bunyoro.

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The contention by the respondent that as the husband through whom the appellant was claiming the disputed land had been banished by his late father, the appellant was a zo licensee under section 29141 of the Land Act, was a trespasser, is not supported by the evidence as seen above. Further, the evidence of the respondent's witnesses, who were his brothers stating that their late mother demanded vacant possession of the land was hearsay. By the time Anasitanzia Tiwangre died, the appellant and her family were living on the disputed suit land with her consent

The respondent who succeeded his mother did not obtain a certificate of title till ¹⁹⁹1 . In the circumstances of this 30 case, with due respect to the learned trial judge, I do not agree that the appellant was a trespasser. The family was on the land lawfully. If the respondent as a registered owner, wished to evict them, he had to give them notice and compensation in accordance with the law applicable to this

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case. When the land was given to Tiwangre the family continued to stay on it. It was not until the title was transferred into the name of the respondent that the appellant's family was threatened with eviction. In my view change of ownership in the instant case did not tum the appellant into a trespasser considering the circumstances of this case.

In the result this appeal would succeed. I would set aside the judgment of the High Court awarding the respondent general damages in the sum of shs. 5 million, the eviction order and costs awarded to him and I would enter judgment for the appellant on the counterclaim with costs in this Court and the court below.

She would be entitled to costs of this appeal and those of the High Court. 20

Since the other members on the coram also agree, this appeal is allowed with the orders proposed above and costs to the appellant in this Court and the High Court.

lk Dated at Kampala this t2 J+- znI.'- day of titl 2t 0L

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³⁰ LL L. E. M. Mukasa onyogo HON. DEPUTY C IEF JUSTICE

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANA AT KAMPALA

#### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA. $\overline{E}$

#### CIVIL APPEAL NO. 38 OF 2005

## KAROLINA RWAMUHANDA ::::::::::::::::::::::::::::::::::: **VERSUS**

GEORGE TUHIRIRWE ::::::::::::::::::::::::::::::::::::

[Appeal from the judgment of the High Court of Uganda at Kampala (Hon. Mr. Justice Tonyinondi Gideon) dated 27^th May 20031

#### JUDGMENT OF C. N. B. KITUMBA, JA.

I had the benefit of reading in draft the judgment of Lady Justice Mukasa-Kikonyogo, DCJ.

I entirely agree with it and have nothing useful to add.

Dated at Kampala this ....................................

CALS Climba<br>C. N. B. Kitumba **JUSTICE OF APPEAL**

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. V CORAM: HON. LADY JUSTICE C. N. B. KITUMBA, JA. HON. MR. S. B. K. KAVUMA, JA.

### CIVIL APPEAL NO. 38/2005

### KAROLINA RWAMUHANDA...................................

#### **VERSUS**

#### GEORGE TUHIRIIRWE.................................

**Appeal from the Ruling and Decision of the High Court of Uganda at Kampala** (Hon. Mr. Justice Tinyinondi Gideon) dated 27^th May 2004]

$10$

### JUDGMENT OF HON. S. B. K. KAVUMA, JA.

I have had the benefit of reading in draft the judgment prepared by Hon. Lady Justice L. E. M. Mukasa-Kikonyogo, DCJ. I agree with it, the reasoning in it and the orders proposed therein. I have nothing to add.

Dated at Kampala this ... 12 th day of September 2006. S. B. K. Kavilma

Justice of Appeal.

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