[2023] UGHCLD 290

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CIVIL APPEAL NO. 80 OF 2012

(Arising from Civil Suit No. 15 OF 2009 of the Chief Magistrates Court of Mukono at Mukono)

- 1. CHRISTINE SSANYU **NABACHWA** - 2. KASOZI - 3. LUBEGA - 4. HELLEN NAKIRYOWA **NANDWA**

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**APPELLANTS**

- 5. PHILLY KIKOMEKO - 6. NAMWANDU KIKOMEKO

$\nu$ S

## **MARY NAKITENDE MUKIIBI**

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**RESPONDENT**

## BEFORE: THE HON MR JUSTICE MICHAEL ELUBU **JUDGMENT**

This is an Appeal arising from the Judgment and Orders of Her Worship E. L. Nakadama in Civil Suit No. 15 of 2009 of the Chief Magistrates Court of Mukono at Mukono.

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## **Background**

The Respondent, Mary Nakitende Mukiibi was the plaintiff in Civil Suit No. 15 of 2009, filed jointly against the Appellants, who were the Defendants in the lower Court. The Respondent's claim against the Appellants was for a Declaration that the Respondent is the owner of the whole of the suit land; a Declaration that the Appellants are not bonafide/lawful occupants on the suit land; Damages for the trespass on the suit land; a permanent injunction restraining the Appellants from trespass; and costs of the suit.

It was the evidence of the Respondent, who testified as PW1, that she has been a resident of upper Kauga, in Mukono since 1971. She is the proprietor of a parcel of land which is about 1 hectare in area described as Plot 640 Block 170 Kyaggwe LRV 2140 Folio 25. That she purchased the land in 1970 from one Bijjananaku Makanika. Her brother James Kawadwa, PW2, witnessed the purchase. Other witnesses were Mwebe and Bukirwa. The sale agreement was made on site.

In 1978 she applied for a lease from the Land Board. That Application was tendered as **PE2**. That on the 30^th of August 1978 and on 14^th of June 1984, the Respondent made payments for the preparation of a survey and lease and receipts for these payments were admitted as PE3 (a) & (b). The land was surveyed in 1979. The Respondent was granted a lease offer on the 9^th of March 1984 in respect of 3 acres at Kauga – exhibited as PE4. That the Respondent has a leasehold certificate of Title for 49 years obtained in 1992 - admitted as PE1. At the time the Respondent surveyed the suit land, there were only two houses on it and both belonged to her. The seller, Bijjananaku had not developed it. That none of the Defendants stayed on the suit land a fact also stated by PW 2 who has been a resident of Upper Kauga since his childhood.

That she knows all the Appellants (Defendants) and that they trespassed on her land in upper Kauga, Mukono.

That in 2002, the 1^st Appellant (Defendant) informed the Respondent that she had purchased part of the land. That the Respondent did not sell any of her land to her. That the 1^st Appellant said she had purchased the land from one Matovu Peter. That the Respondent advised the 1^st Appellant to get a refund of her money from the said Peter Matovu. That in 2009, the 1^st Appellant dug a pit latrine and destroyed the Respondent's murram which had been put on the suit land. at a later stage she constructed a house on the suit land. The Respondent reported the matter to the Local Council 1, which then wrote to a letter to the 1^st Appellant who ignored it. That the 1^st Appellant also disregarded the Town Council, when it intervened, and continued with her developments.

That Matovu Peter was the deceased father of the 2^nd and 3^rd Appellants (2^nd and 3^rd Defendants). That in a matter before the Local Council I in 1995, the late Matovu Peter claimed that he had acquired a Kibanja on the suit land. At that time, he was constructing a house on the suit land. That House was completed and is being occupied by the $2^{nd}$ and $3^{rd}$ Appellants.

That in 1994, the Respondent wrote a letter, through her Advocates, to Matovu and to the 4^th, 5^th and 6^th Appellants (Defendants) warning them that they were on the suit land illegally - PE6. The letter was also addressed to one Ssemwogerere who later legalized his stay on the suit land. That the $2^{nd}$ and $3^{rd}$ Appellants (Defendants) also constructed houses on the land.

That the Respondent's lawyer also served the 4^th Appellant with a letter. Thereafter the 4^th Appellant approached the Respondent with an offer to purchase the plot of land at Ugx. 2 million. That the 4^th Appellant thereafter declined to pay the money offered and instead constructed a hostel on the plot.

That the 5^th and 6^th Appellants (Defendants) claimed their ownership through one Brown Kikomeko. The Respondent had earlier filed a suit against Kikomeko and obtained a judgment in her favour in 1996. This Judgment was admitted as PE9. That Kikomeko was directed to pay to the Respondent Ugx 2M together with costs

of the suit. Eventually, the Chief Magistrate ordered Kikomeko's house to be demolished. The Respondent did not get a certified copy of that judgment of the Chief Magistrate but the bailiff who was to demolish Kikomeko's house got a copy. That bailiff passed away before he executed the judgment. Kikomeko is also deceased and the premises are now occupied by the 5^th and 6^th Appellants (Defendants).

All appellants denied the respondents claim. The 1^st, 2^nd, 3^rd, 5^th and 6^th Appellants (1^st, 2^nd, 3^rd, 5^th and 6^th Defendants) filed a Joint Written Statement of Defence. The 4^th Appellant (4^th Defendant) filed a separate Defence.

The 1^st Appellant's defence was that she purchased her Kibanja from one Peter Matovu on the 20^th of August 2000. That Matovu had, on the 20^th of November 1987, himself purchased from one James Mukiibi Bijjananaku. The 1^st Appellant denied being a trespasser on the suit land.

The $2^{nd}$ and $3^{rd}$ Appellants stated that they inherited the land they occupy from their father one Peter Matovu, and they had lived on their portion all their lives. They could not therefore be trespassers on their late father's land and home.

The 4^th Appellant (who was the 4^th Defendant) also denied the Respondent's claim. She stated that she is a Kibanja holder and obtained her interest in 1982 and developed it. That the Respondent unlawfully obtained a lease over her Kibanja without her consent and declaring the 4^th appellant to the Uganda Land Commission before the grant of the lease offer to the Respondent. That the Respondent purported to sub lease the portion currently occupied by the 4^th appellant but the transaction was halted when the Respondent's title and its acquisition were challenged in the Local Council 1 by other residents in the 1990s. That after that incident, the Respondent never got back to the 4^th Appellant over subleasing the suit land to her.

The 5^th and 6^th Appellants stated that Judgment in Civil Suit No. 98 of 1995 was issued in favour of Brown Kikomeko. That they inherited the portion they occupy from the late Kikomeko Damulira Francis, who purchased from Joseph Mukiibi on the 24^th of October 1988. They stated that they had lived their whole lives on their portion and are not therefore trespassers. It was their father's land and home.

The first appellant, Nabacwa Christine Sanyu, was DW9. She stated that she purchased a Kibanja from one Peter Matovu as per sale agreement dated the 20^th of August 2000 exhibited as DE4. She started construction thereafter but was stopped by the Respondent. That the Town Clerk's office gave DW 9 the permission to continue with her construction. That she also learnt that the Certificate of Title held by the Respondent is a forgery.

Peter Matovu's sister, DW5 Nalubega Walakira stated that Matovu was deceased. That he purchased a Kibanja on the suit land and gave the sale agreement to her for safe custody. She has held it since 1987. That her late brother developed the land with buildings and after his death the orphans now live on the suit land. She also said when a niece passed away she was buried on the same land. The agreement was exhibited as **DE3**.

DW1 Kasozi Gideon is the 2^nd Appellant and a son of the late Peter Matovu who passed away in 2000. He stated that his father was born and resided on the land. He stated they have 4 houses built by his father that are on the land. It is also used for burial and cultivation purposes. Although he did not know how his father acquired the land he confirmed that Ms. Walakira (DW 5) had the sale agreement.

The 4^th Appellant Nakiryowa Seryazi Nandwa, testified as DW2. She stated that she purchased her land from Joseph Mukiibi the elder son of the late Bijjananaku. At the time the land was vacant. That they executed a sale agreement however the original was destroyed in a fire in 1988. She informed the seller of this incident who provided her a copy which was exhibited as DE1. That she has been a resident since 1982. Nakiryowa stated that she knows the Respondent (Plaintiff).

That in 1984 the 4^th Appellant started construction. That it was in the 1990s that the Respondent began to claim ownership of the land. The 4^th Appellant argued that she purchased a Kibanja and not land as the suit land is public land. That the matter was reported to the Local Council to resolve but the Respondent did not attend the meeting.

That the 4^th Appellant states she did not see any surveyors or inspectors before the lease was granted to the Respondent.

That the Respondent and the 4^th Appellant reached an agreement over the suit land where the 4^th appellant agreed to pay Ugx. 1,700,000/-. That although the 4^th Appellant made a payment of Ugx 700,000/ $=$ , she did not complete the entire sum because the Respondent wanted to reduce the size of the 4^th Appellant's Kibanja. Nakiryowa stated that she constructed a hostel on her land.

**Juma Mukiibi** was DW 4 and is a son of John Mukiibi Bijjananaku. That he knows the 4^th Appellant, Nakiryowa and they sold part of their Kibanja to her. That she purchased the land from DW4's elder brother Joseph Mukiibi in 1982.

That the Respondent (Plaintiff) is a neighbour and that her late husband, Mzee Mwebe, also purchased a Kibanja from them in the 1970s. At the time the Respondent purchased her Kibanja, measurements were not common, but her land can be estimated to be less than an acre. That they did not use any of the measuring practices, like the use of feet as is common today. That after Mwebe had purchased his Kibanja, he brought the Respondent to utilize the land.

DW4 states that his father died in 1979 and his brother in 2002.

That he (DW4) came to learn of the dispute between the Respondent and the 4^th Appellant in 1994. He testified that he was not present when the Respondent surveyed her land and added that the suit land is public land.

DW6 Sekalala Ivan is a resident of Kauga, Mukono and has known the 4^th Appellant since 1982 and confirmed that she purchased her Kibanja from Mukiibi Joseph. That DW6 inspected the Kibanja before the purchase. He is also a witness on the sale agreement - DE1. That 4^th Appellant commenced construction between 1983 and 1984. DW6 testified that he had not heard of any dispute until he was asked to testify for the $4^{th}$ Appellant.

The 6^th appellant, Martha Namirembe Kikomeko was DW 3. She stated that she purchased the suit land jointly with her late husband, Frank Kikomeko, in 1986. Although she was not one of those who signed, she can identify her husband's signature on the agreement executed on 24^th of October 1988. That the seller was Joseph Mukiibi, a son of Bijjanakku.

That Namirembe Kikomeko got to know of the Respondent's ownership after visiting the land office. That both the Respondent and herself always lived in the same village even as Namirembe cultivated the land. That they started construction in 1994. The Town Council tried to stop the construction because the building was in the road reserve.

DW7 was Christopher Muwanga Kiyini. He stated that he knew both the 6^th Appellant and the Respondent. That the 6^th Appellant was in possession of the suit land before the Respondent. That DW7 was one of the witnesses to the transaction between Mukiibi and the 6^th Appellant.

Richard Magambo, the LC I Defence Secretary testified as DW 8 and knows all the parties. That the late Kikomeko lodged a complaint, with the Resistance Council in the 1990s, that his Kibanja had been leased. That Kikomeko was advised to talk to the Respondent before the LC could handle the matter. When the Respondent was summoned, she came with an advocate called Kawere. That when the respondent was asked to produce a sale agreement, she instead brought a certificate of title. That DW8 was also told by the widow of Bijjananaku that they had sold part of the land to the Respondent. That the LC resolved that the Appellants (Defendants) were at liberty to develop the area. That the respondent filed an appeal, between herself and appellants, in the courts of law.

The learned Trial Magistrate entered Judgment in favour of the Respondent. Being dissatisfied with her findings the appellants lodged this Appeal with four grounds namely:

- 1. The Trial Magistrate erred in law and fact when she found that the Appellants were bonafide occupants on the land in dispute but again erroneously levied different amounts of money to validate their stay in one year, leading to a contradiction and miscarriage of justice. - 2. The Trial Magistrate erred in law and fact when she failed to evaluate the whole evidence adduced at the trial and there by reaching a wrong decision, leading to a miscarriage of justice. - 3. The Trial Magistrate erred in law and fact when she awarded General Damages of $500,000/$ = shillings and costs of the suit when there was no trespass proved and no justification was made for the filing of the suit in court. - 4. The Trial Magistrate erred in law and fact when she denied costs of the suit to the Appellants when they had substantially won the case.

### **Submissions**

The Parties were granted leave to file written submissions which are on court record. They have been studied by this court but will not be reproduced here.

#### Grounds 1, 2, $&$ 3.

The Trial Magistrate erred in law and fact when she found that the Appellants were bonafide occupants on the land in dispute but again erroneously levied different amounts of money to validate their stay in one year, leading to a contradiction and miscarriage of justice.

The Trial Magistrate erred in law and fact when she failed to evaluate the whole evidence adduced at the trial and there by reaching a wrong decision, leading to a miscarriage of justice.

The Trial Magistrate erred in law and fact when she awarded General Damages of $500,000/$ = shillings and costs of the suit when there was no trespass proved and no justification was made for the filing of the suit in court.

The 1^st, 2^nd, 3^rd, 5^th & 6^th Appellants filed Joint Written submissions while the 4^th Appellant filed her written submissions singularly. They elected to argue all 3 grounds together.

### Determination.

This is a first appeal. In determining the matter therefore, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect (Selle Vs. Associated Motor Boat Company (1968) EA 123, Uganda Breweries Limited Vs. Uganda Railways Corp S. C. C. A. No. 6 of 2001.

In *Nsubuga vs. Kavuma [1978] HCB 307* it was held that with civil cases the burden lies on the plaintiff to prove his or her case on the balance of probabilities.

It is with these principles in mind that the grounds of appeal will be determined.

In its entirety, the Respondent's claim against the Appellants was for a Declaration that she is the owner of the whole of the suit land. That the Defendants were not bonafide or lawful occupants; she sought damages for trespass to her land; along

eviction order; and a permanent injunction restraining with an the Appellants/Defendants from trespass; and costs of the suit.

It was argued for the appellants that the finding of the Trial Magistrate that the Appellants were bonafide occupants meant they were not trespassers to the suit land. However, it was shocking when in spite of that finding, the trial magistrate ordered the 2^nd, 3^rd, 5^th and 6^th appellants to pay the respondent 15,000,000/-, and the 4th to pay the 10,000,000/- to legalise their sub lease and stay on the land.

The respondents' submission in reply was that the evidence on record, shows that none of the Appellants qualifies to be a bonafide occupant of the suit land as required by Section 29 (2) (a) of The Land Act. That Sections 35 and 36 of the Land Act regarding options to purchase each other's interest did not apply in this case since the Appellants are trespassers. It was argued farther that the fact of the Respondent as the registered owner was not challenged by any of the Appellants. That no fraud during registration was proved against the Respondent.

This court will start with the question raised, that is, trespass.

Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass ... The owner of property has a legal right to exclusive possession, unless she or he has leased it to a tenant. In the absence of any other person having lawful possession, the legal possession is vested in the holder of a certificate of title to the land (see Justine Lutaaya vs Stirling Civil Engineering SCCA $11/2002$ ).

In other words, to establish the tort of trespass to land, the plaintiff had to prove that: (a) she was in lawful possession of the land at the time of the entry complained of; (b) there was an unlawful or unauthorised entry by the respondents; and (c) the entry occasioned her damage.

Exhibit PE1, the respondents certificate of title, was not contested by any of the parties. In fact, Nakiryowa Kikomeko, the 6^th Appellant, said she got to know of it after visiting the land office where she saw the title. Prior to obtaining the certificate of title in 1992, the Respondent had first applied for a lease in 1978. The she had been granted an initial lease, which run for 5 years, from 9^th March 1984 (see Exhibit PE4). The Respondent also stated that she has been in possession since 1971 after purchase, in 1970. At the time she took occupation, the land was vacant.

None of the appellants dispute the facts above. The position for the appellants is that they have all entered the land at diverse points in time and acquired through purchase, either personally, or through their predecessors.

The 1^st Appellant states that she concluded a purchase from Peter Matovu on the 20^th of August 2000. It is from that date that she has been in possession. The sale agreement concluded between the two was tendered as DE 4. Then the 2^nd and 3^rd Appellants are the sons of Peter Matovu and claim their portion through him. Matovu purchased his portion on the 20^th of November 1987 from James Mukiibi Bijjananaku.

The 4^th Appellant entered the suit land in 1982 and at one stage in 1990s offered to purchase her interest from the Respondent.

As for the 5^th and 6^th Appellants, their claim to the land is through Brown Kikomeko - their father and husband respectively, who purchased in 1988.

Over the years, the Respondent resisted the entry of the Appellants or their predecessors onto the suit land. The different instances she did this include a civil suit against Brown Kikomeko whose judgment was admitted as Exhibit PE9; there are also the warning letters written to the appellants and their predecessors by the Respondent's advocates, Kawere and Co Advocates, warning them to stop any

farther trespass to the land - PE6; and lastly the verbal claims of ownership and warnings expressed to the Appellants or their predecessors.

As shown above, the $1^{st}$ , $2^{nd}$ and $3^{rd}$ appellants all claim ownership through Peter Matovu who purchased in 1987. At the time Matovu entered the land, the Respondent had already been in possession since 1971 and acquired an initial lease, which was to run from 9^th March 1984.

The other argument made by the 1^st Appellant is that she purchased a Kibanja and not land. Even then, this court notes that by the time Matovu entered upon the disputed land, all land in Uganda was vested in the Government of Uganda by virtue of The Land Reform Decree 1975 which stipulated in Section 1 that:

With effect from the commencement of this Decree, all land in Uganda shall be public land to be administered by the Commission in accordance with the Public Lands Act, 1969, subject to such modifications as may be necessary to bring that Act into conformity with this Decree.

As all land was public land at the time, a Kibanja holding could not properly be created or exist on the disputed land.

The claim to a kibanja notwithstanding, the Respondent had opposed and resisted the entry of Matovu onto the land. From 1994, there was a dispute between them stemming from and handled by the Resistance Council. Matovu had the same argument before the Resistance Council, that he was a Kibanja holder.

The 4^th Appellant entered the land in 1982. She states that she purchased her portion from Joseph Mukiibi. Again, as laid out above, the Respondent was in possession at this time. The same fate, as stated for the 1^st to the 3^rd Appellants above, befalls her claim.

The 5^th and 6^th Appellants claim possession of the suit land from the late Brown Kikomeko. They state that proof of that claim is the judgment entered by the Chief Magistrates Court of Mukono in Civil Suit No. 98 of 1995 - PE9. It is alleged the findings were in their favour.

That suit arose from a claim of an alleged trespass. This court has perused the Judgment. I find that it does not appear to support the 5^th and 6^th Appellants' contention that it was in their favour. Without commenting on its merits, the decision directs Kikomeko, to pay compensation and damages to the Respondent.

It is stated that the Respondent filed an appeal with the Chief Magistrate. She, however, did not provide a copy of the judgment on Appeal. That the court bailiff retained to carry out execution passed away before he could complete the process and, as a result, she lost her copy. It is alleged that the Court had directed that Brown Kikomeko's house be demolished. Those were the instructions to the bailiff and that is why he had the respondent's copy of the judgment.

The Respondent testified further, that she wrote to the Inspector of Courts requesting for a certified copy. That letter was admitted as Exhibit PE10. There has been no evidence adduced to rebut any of these allegations.

The sum of all the above is that there is ample evidence to show that the respondent was in possession of the land long before any of the appellants entered on it. That all the appellants admit being on the land at the time of the suit. I find that their entries were all unlawful. That the respondent was the rightful and registered proprietor. That the long occupation by the appellants has caused the respondent inconvenience and pain. I therefore find and hold that the appellants were trespassers.

The other question is whether the appellants were bonafide or customary occupants on the suit land.

It was argued for the appellants that they were indeed bonafide occupants. That even if they were regarded as tenants, their interests are protected by Sections 35 and 36 of the Land Act and they could not therefore be compelled to sell off their interests.

The contention for the 4^th appellant is that she was also a bonafide occupant. Additionally, because she had been on the land since 1982, the suit against her was caught by time and barred by the Statute of Limitation.

The respondent opposed these assertions. She stated that the Appellants were in illegal occupation of the suit land. That from the evidence on record, none of the Appellants qualifies to be a bonafide occupant.

That Section 35 and 36 of the Land Act does not apply to the instant suit because the Appellants are trespassers. Besides, her registered ownership remained unchallenged on any ground.

Article 237 (8) of the Constitution of the Republic of Uganda, 1995 stipulates that:

Upon the coming into force of this Constitution and until Parliament enacts an appropriate law under clause (9) of this Article, the lawful or bonafide occupants of mailo land, freehold or leasehold land shall enjoy security of occupancy on the land

Section 29 of the Land Act Cap 227 gives effect to Article 237 of the Constitution of the Republic of Uganda, 1995 and in sub section 2 of Section 29 of the Land Act defines a Bonafide and Lawful occupant.

"Lawful occupant" means

- a) a person who entered the land with the consent of the registered owner, and includes a purchaser; or - b) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

"Bona fide occupant" means a person who before the coming into force of the Constitution:

- a) had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or - b) had been settled on land by the Government or an agent of the Government, which may include a local authority.

To qualify as a bonafide occupant, one must have settled and utilized the land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution. The cut-off point is 1983. That notwithstanding, I have already found that the Respondent contested the settlement of the Appellants (or their predecessors) throughout their occupation. In those circumstances, the Appellants do not qualify as bonafide occupants

I will now deal with the issue of whether the Appellants are customary tenants.

The provision on customary tenants in the Land Act requires that a person who had occupied land as a customary tenant but was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title is a lawful occupant.

Going by the facts, all the appellants, or their predecessors, found the Respondent in possession. They all appear to trace their purchases to Joseph Mukiibi Bijjananku the son of the original owner, Makanika Bijjananku.

In view of the above, by time the appellants purchased from the son, the respondent had long taken possession, by purchase from the primary owner, who is the father. I would therefore hold that Mukiibi Bijjananaku had no authority to make a sale of land no longer owned by Makanika or his estate. No evidence to the contrary has been led. In the result Joseph Bijjananaku or those who purchased from him are not lawful occupants.

That leg of the arguments also falls.

The next question raised is Limitation. The 4^th Appellant argued that the Respondent's suit was time barred. She relied on Sections 3 (1) and 5 of the Limitation Act.

Sections 3 $(1)$ (a) states:

The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose ... actions founded on tort.

Trespass is a tort and this Court made a finding that the tort of trespass to land was established against the appellants in this case. The objection made by the 4^th appellant is that the Respondent intended to recover her land as such, it was Section 5 of the Limitation Act applicable. It stipulates that,

No action shall be brought by any person to recover any land after the expiration of twelve 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.

The distinction between an action for recovery of, as opposed to trespass to land, has been made and well elaborated in Odyek Alex & Anor vs. Gena Yokonani & Ors Civil Appeal No. 9 of 2017:

the claim is essentially in the nature of an out-of-possession claimant asserting his or her title or ownership i.e., proprietary title, as distinct from possessory rights. In essence, an action for recovery of land is founded on a special form of trespass based upon a wrongful dispossession. It is the mode by which conflicting claims to title, as well as possession, are adjudicated. Any person wrongfully dispossessed of land could sue for the specific restitution of that land in an action of ejectment. An action for the recovery of land is the modern equivalent of the old action of ejectment (see Bramwell v. Bramwell, [1942] 1 K. B. 370). It is action by which a person not in possession of land can recover both possession and title from the person in possession if he or she can prove his or her title.

In the instant suit, the Respondent's claim was not for recovery of land but trespass. She retains legal title in the form of a certificate of title. She intended to re-establish physical possession so as to have a union of possession and title.

In that case, Section 5 of **The Limitation Act** cited by the 4^th Appellant did not apply because this suit did fit the description of land recovery. The Respondent had not lost proprietary title, but was only physically dispossessed.

This court is therefore dealing solely with the tort of trespass to land. It is therefore Section 3 (1) (a) of the **Limitation Act** applicable. The limitation period there is the one regulating time for bringing actions in tort which is six years.

The specific position on Trespass to land is that it is a continuous tort. In Lutaaya (supra) the Supreme Court observed that,

Trespass to land is a continuing tort, when an unlawful entry on the land is followed by its continuous occupation or exploitation. Proof of such continuous unlawful occupation, is sufficient proof of trespass, even if the date it commenced is not proved.

It was also observed in Eriyasafu Mudumba v Wilberforce Kuluse HCCA 4 of 1991 (Jinja) that trespass is a continuing tort, which continues to exist until abated.

In this instant case, the trespass is deemed to continue to run until the point at which it is abated. It renews itself every day the unlawful entry continues.

For the above reason, every succeeding or new day that the Appellants continue in their possession of the suit land, the trespass is renewed. The statute of limitation cannot apply and this matter is not therefore time-barred.

On Ground 3, it is a general principle of law that General Damages are awarded at the discretion of the Court. The object of the award of damages is to give the plaintiff compensation for the damage, loss or injury suffered.

From the above, the Respondent has shown the long aggravation she has suffered to remove the appellants from her land. An award of general damages was therefore justified.

In sum, Grounds 1, 2 and 3 fail.

## Ground 4.

The Trial Magistrate erred in law and fact when she denied costs of the suit to the Appellants when they had substantially won the case.

It was submitted for the Appellants that the Appellants having proved that they were not trespassers, they had substantially won the case and were entitled to costs.

In view of my findings in this appeal, this submission is untenable. The appellants are indeed in trespass to the Respondent's land. They therefore are not entitled to costs.

Ground 4 of the Appeal fails.

## **Remedies**

Section 80 of the Civil Procedure Act Cap. 71 and Order 43 Rule 27 of The Civil **Procedure Rules** lays out the power of this Court in appeals. It states in part that the High Court shall have power to pass any decree and make any order which ought to have been passed or made in favour of the respondents although the respondents may not have filed any appeal or cross appeal.

I have studied the orders of the lower court. In view of my findings here those orders are set aside.

The Respondent made the following prayers in the lower court:

- a. General Damages for trespass - b. An Eviction Order - c. A permanent injunction restraining all the Defendants from trespassing on the suit land. - d. A declaration that the Plaintiff is the legal owner of the whole of the suit land. - e. A declaration that the Defendants are not bonafide or lawful occupants of the suit land;

f. Interest of (a) above from the date of filing this suit till payment in full.

In view of the fact that I have set aside the orders of the lower court, they shall be substituted with the following:

- 1. This Appeal is dismissed with costs. - 2. The Respondent is declared to be the legal owner of the whole of the suit land. - 3. The Appellants are trespassers on the suit land and not bonafide or lawful occupants on the land. - 4. An Eviction Order is issued against all the Appellants. - 5. The Appellants shall pay to the Respondent General Damages of Ugx. 500,000/= as ordered by the Trial Magistrate. $500,000/=$ - 6. No interest is awarded to the Respondent on the General Damages.

**Michael Elubu**

Judge

11.3.2023