[2024] UGHCLD 288

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)**

# **CIVIL APPEAL No.188 OF 2023**

# **(Appeal from the Chief Magistrates Court of Makindye, Civil Suit No.029 of 2018)**

## **SHEIKH HUSSEIN SSENGENDO :::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

#### **HAJJAT NAMBI LUGWISA :::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

#### *Introduction*

1. Sheikh Hussein Sssengendo hereinafter referred to as the appellant brought this appeal against Hajjati Nambi Lugwisa hereinafter referred to as the respondent against the decision of Her Worship Basemera Sarah Anne in Civil Suit No 49 of 2018 in the Chief Magistrates Court of Makindye at Makindye.

#### *Background*

2. In the lower court, the respondent brought Civil Suit No. 29 of 2018 against the appellant seeking for orders that a declaration

that the defendant is a trespasser on the land situate at Buziga Kiruddu LC1 Munyonyo, Makindye Division, Kampala, eviction order, permanent injunction, mesne profits, general damages and costs of the suit.

- 3. The plaintiff (now respondent) alleged that the suit land was bequeathed to her by her late brother Lupa Muhammedi Mugenyi in a will executed by Sheikh Rajab Kakooza. And as a beneficiary to the estate of the late Lupa she is entitled to her bequest as stated in the will of the late Lupa Muhammedi. On the other hand, the defendant (now appellant) alleges that he has been in adverse possession and occupation of the suit property since 1992 unchallenged by the plaintiff. That the land he occupies is different from the one referred to in the will. - 4. In the lower court, judgment was entered for the plaintiff (now respondent) and being dissatisfied with the judgment of the lower court the appellant appealed on the following grounds that: - i) The trial magistrate erred in law and fact when she expunged the appellant's exhibits from the record after granting leave to file an amended joint scheduling memorandum thereby occasioning a miscarriage of justice.

- ii) The trial Chief Magistrate erred in law and fact when she held that the Appellant has never had a recognizable interest in law in the suit Kibanja and the same has at all times, always belonged to the respondent whereas not. - iii)The trial Chief Magistrate erred in law and fact when she failed to evaluate the record of court and thereby coming to a wrong finding that the appellant is the friend referred to in the will and he failed to prove that he is lawfully on the suit Kibanja. - iv) The trial Magistrate erred in law and fact when she held that the appellant was a trespasser on the suit Kibanja and ordered for his eviction. - v) The trial Chief Magistrate erred in law and fact when she awarded the respondent general damages of Shs 7,000,000/= with interest of 10% from the date of judgment until payment in full.

#### *Duty of the first appellate court*

**5.** This being the first appeal, this court is under obligation to re-hear the case by subjecting the evidence to fresh scrutiny and re-

appraisal before coming to its own conclusion*. (See; Nansensio*

# *Begumisa and 3 Ors v Eric Tiberaga SCCA 17 of 2000)*

*6.* It is a well settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appellate court has to make a due allowance for the fact that it neither saw nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions.

# *(See; Selle v Associated Motor Boat Co. [1968] EA 123)*

## *Representation;*

7. The appellant was represented by Counsel Isota Sulaiman and Kawesa Abubakar of M/S Katuntu & Co. Advocates whereas the respondent was represented by Counsel John Paul Baingana and John Mary Muwaya of M/S JP Baingana & Associated Advocates and M/S Jingo,Sempijja & Co. Advocates respectively.

# *Resolution and determination of grounds of appeal;*

*Ground 1: The trial magistrate erred in law and fact when she expunged the appellant's exhibits from the record after granting leave to file an amended joint scheduling memorandum thereby occasioning a miscarriage of justice*.

- 8. I have carefully perused the record, submissions and the ruling of the lower court as regards expunging the appellants' documents in the joint scheduling memorandum and attached to the witness statement of the defendant. - 9. It is the position of the law that a document only forms part of the evidence of the parties if the same is tendered in and received by court as an exhibit. *(See; Byamugisha David v Kebirungi Venny*

#### *HCT-01-CV-CA-002 of 2022)*

10. It is the appellant's case that the parties proceeded to prepare, execute and filed an amended joint scheduling memorandum on 14th June 2023 listing the appellant's documents without protest from the respondent. That the respondent was estopped from objecting to the admission of the said documents as exhibits after agreeing on them in the amended joint scheduling memorandum.

- 11. However, I need to emphasize that documents listed in the joint scheduling memorandum are not evidence on court record merely because they form part and parcel of the Joint scheduling memorandum. I agree with counsel for the respondent that court does not determine cases according to the joint scheduling memorandum but rather the evidence and the pleadings on court record. - 12. The learned trial Magistrate in her ruling stated that counsel for the defendant never sought leave to have the documents attached as part of the defendant's pleadings except in the witness statement. - 13. The learned trial magistrate added that courts should not be mired by endless litigation which would occur if litigants were allowed to adduce fresh evidence at any time during trial without any restrictions. That it would undermine the whole justice system and respect for the law if it were open to a party to be able to rerun a trial simply because potentially persuasive or relevant evidence had not been put before court. - 14. I find no fault in the learned Magistrate's reasoning as the appellant's attempt to sneak documents on the court record

through a witness statement that did not form part of the pleadings and never sought leave to add them offended Order 6 rule 2 of the Civil Procedure Rules.

15. Therefore, ground 1 is resolved in the negative.

*Ground 2: The trial Chief Magistrate erred in law and fact when she held that the Appellant has never had a recognizable interest in law in the suit Kibanja and the same has at all times, always belonged to the respondent whereas not.*

*Ground 3: The trial Chief Magistrate erred in law and fact when she failed to evaluate the record of court and thereby coming to a wrong finding that the appellant is the friend referred to in the will and he failed to prove that he is lawfully on the suit kibanja.*

*Ground 4: The trial Magistrate erred in law and fact when she held that the appellant was a trespasser on the suit Kibanja and ordered for his eviction.*

16. Counsel for the appellant submitted that only a person in possession is entitled to sue for trespass. Counsel relied on the case **of Nakagiri Nakabega & 2 Ors v Masaka District Growers**

**[1985] HCB**. He added that the appellant took possession of the suit Kibanja with the consent of the Late Lupa and that this was confirmed by the respondent. That DW1 testified that the Late Lupa donated the suit Kibanja to him in 1992. That he paid Busuulu to the Buganda Land Board thereby being recognized as a statutory tenant.

- 17. Counsel for the appellant added that in 2002, when the late Lupa made his will, he was not in possession of the suit Kibanja nor was he, in 2004 when he died. At the time of his death, he had divested himself of any interest in the same. That the suit Kibanja does not belong to the respondent who has never been in possession. - 18. The appellant denied being a trespasser and maintained that he owned the suit Kibanja as a donee for the late Lupa since 1992 to date. - **19.** Counsel also submitted that the appellant was a lawful occupant for having entered the suit land with the consent of the Late Lupa. He relied on Section 29(1)(b) of the Land Act. The respondent is therefore estopped from a claim on the suit Kibanja

under the doctrine of proprietary estoppel. Counsel cited **Crabb v**

#### **Arua District Council [1976].**

- 20. He added that the will that appeared on record is not the same will that was confirmed by court for probate given the inconsistencies therein. That the drawer of the will was not called to give evidence and such a will had low evidential value. Counsel cited **Adminstrator General v Bukirwa & Anor 1992-1993) HCB 192.** - 21. In reply, Counsel for the respondent submitted that from the appellant's documents, the appellant presented three distinctive basis or his claims to wit adverse possession, occupation and a gift inter vivos. That the learned Magistrate rightly evaluated the evidence on record. - 22. That the appellant having stated in his written statement of defense that he got the land through adverse possession, it was wrong for him to change positions as such is a clear departure from the pleadings. Counsel relied on case of **Doshi Hardware (U)**

#### **Ltd v Alam Construction HCCS No.425 of 2003.**

23. Counsel for the respondent added that the will speaks after death of the maker and it spoke. That the moment the appellant

was asked to vacate the suit land and he refused, he became a trespasser. Counsel relied on Salmond Law on Torts 9th Edition page 207.

24. Counsel for the respondent concluded that the appellant had no justification to remain on the suit land

#### *Analysis by court;*

- 25. Trespass to land has been defined as unjustifiable interference with possession of land. **See Winfield and Jolowiz on Tort 11th Edition.** In the case of **Justine EMN Lutaaya v Stirling Civil Engineering Co Ltd S. C. C. A No. 11 of 2002**, it was held that trespass to land occurs when a person makes unauthorized entry upon land, and thereby, or portends to interfere with another person's lawful possession of that land. - *26.* Additionally, possession within the context of trespass does not mean physical possession but also includes constructive possession. See **Moya Drift Farm Ltd v Theuri (1973) E. A 114** at page 115. Therefore, an action for trespass may technically be maintained only by one whose right to possession has been violated. The crux of an action for trespass to land is violation of possession, not a challenge of title*. (See; Adrabo v Madira Civil Suit No. 0024 of 2013)*

- *27.* It is an old adage that possession is the root title, a person in possession of land has better title against anyone else except the person with a better title. **See Ocean Estates Ltd v Pinder [1969] 2 AC 19.** - *28.* I have noted that that although the action was characterized as trespass to land, the suit was in fact an action for recovery of land. It is a suit for wrongful dispossession of land. Trespass when pleaded as part of a suit for recovery of land, requires the plaintiff to prove the validity of her title since actions for recovery of land are premised on proof of a better title than that of a person from whom the land is sought to be recovered. **(Adrabo Case Supra)** - *29.* A suit for trespass can as well be maintained where one enters land with the consent of the owner but then refuses to vacate when asked to do so. In the instant case it was the testimony of PW1 that the land was bequeathed to her by her late brother in a will that was executed by PW2 Sheikh Hussein Rajab Kakooza. It is thus the plaintiff's case that her root to title was testamentary through the will of her Late Brother Lupa Muhammad

- *30.* The executor of the will PW2 also testified that the suit property was bequeathed to the plaintiff and this evidence is supported by the will (PEX1) of the late Muhammad Lupa. This testimony was never whittled down in any way during cross examination. - *31.* It is now a settled position of the law that where questions of title to land arise in litigation, the court is concerned only with the relative strengths of the titles proved by the rival claimants in this case the respondent Hajjati Nambi Lugwisa and the appellant Sheikh Hussein Sengendo. - *32.* I will now turn to the appellant's title as deduced from the record. When asked in cross examination how he got the land, the appellant said "Hajji Lupa donated to me this land verbally". - *33.* At a certain point in a time a donation agreement came up on which the appellate was prosecuted and later was found guilty on the charges of forgery. When asked about the existence of an agreement, the defendant/appellant at page 18 of the record of proceedings said **"I could not maintain that there was an agreement in this case because it is a different case………………court said the donation agreement was false"**

- *34.* I will not attach relevance to the judgment and what transpired in Criminal Case No. 1382 of 2015 for section 41 of the Evidence Act renders such judgments irrelevant unless its existence is a fact in issue. However, I have taken cognizance of the fact that the appellate at one point in time established another root of title which is through a donation agreement. - *35.* It then appears to me contradictory for the defendant (now appellant) to have abandoned that position (that he had relied on as his root of title) and state that Hajji Lupa donated to him the land verbally. - *36.* The appellant if at all was honest and certain about his title in the suit-land, he would then have maintained the same position of how he attained the land in this case. The switch in positions speaks to glaring dishonesty on the part of the appellant. - *37.* Again, I have had the opportunity to peruse the appellant's written statement of defense and notice another inconsistence and contradiction. The defense at paragraph 5 reads as follows; *"The defendant shall further plead that the suit against him is time barred on grounds that he has been in the adverse possession of the suit property for the requisite limitation*

## *period since 1992 to date unchallenged by the plaintiff therefore the suit should be dismissed with costs"*

- *38.* At the time of filing the defense, the defendant now appellate appeared to establish his title as an adverse possessor of the suit land. This is a classic example of a clear departure from the pleadings. I am persuaded by the decision cited by Counsel for the respondent that is Interfreight Forwarders (U) Ltd v EADB Civil Appeal No.33 of 1993 where it was observed as follows; *"a party is expected and duty bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not set up by him and be allowed at trial to change his case or set up a case inconsistent with what was alleged in his pleadings except by way of amendment of pleadings"* - *39.* The defendant (now appellate) was on a fishing expedition holding grip on whatever strategy, argument and piece of evidence that would enable him establish title without any degree of certainty. It was difficult for court to establish any clear line of defense for the appellant.

- *40.* The learned trial Chief Magistrate observed and rightly did so at page 6 of her judgment when she found that the defendant was not an adverse possessor because the Late Lupa while still alive did not give the suit land to the defendant and his intention was never to deposes it which clearly came out in his will. - *41.* Again, Counsel for the appellant submitted that the defendant now appellant is a lawful occupant on the suit land by virtue of Section 29 (1)(b) of the Land Act since he entered the land with the consent of the registered owner. - *42.* Section 1 of the Land Act defines "registered owner" to mean the owner of registered land in accordance with the Registration of titles Act. With due respect to learned counsel for the appellate, Section 29 (1)(b) of the Land Act does not apply, the suit-land was and is not registered land under the Registration of titles Act and the late Lupa was never the Registered owner of the suit land within the meaning of the Land Act. - *43.* The appellant faults the learned trial Chief Magistrate for having arrived at a wrong conclusion that the appellant was the friend referred to in the will. I have had the opportunity to thoroughly peruse the will (PEX1) together with other evidence on court record

and I have not found any reason to dismiss the narrative that the friend referred to in the will was the appellant.

- *44.* There are no other plots of land that belonged to the Late Lupa in the same area so as to lend credence to the ambiguity of the word "friend" in the will. I cannot then subject it to any form of interpretation to ascertain whether the deceased referred to the appellant when he used the word "friend" in his will. All the evidence seems to suggest the friend referred to is the appellant. - *45.* On the balance of probabilities, I find that the respondent had a better title than the appellant. The appellant could not explain with certainty his route to title and as such I find his evidence unbelievable. - *46.* On the issue of the respondent not being in possession, I find that the respondent being a beneficiary to the estate of the late Lupa stood as a successor in title of the suit property and it thus follows that she was clothed with capacity to maintain an action in trespass for recovery of land. - *47.* I thus find no reason to fault the learned Chief Magistrate in her holding that the appellant is a trespasser on the suit land and therefore should be evicted from the suit land.

*48.* Therefore, grounds 2, 3 and 4 are resolved in the negative.

# *Ground 5: The trial Chief Magistrate erred in law and fact when she awarded the respondent general damages of Shs 7,000,000/= with interest of 10% from the date of judgment until payment in full.*

- 49. Counsel for the appellant on this ground submitted that the respondent having not pleaded or led evidence of any particulars on mesne profits, in terms of lost rental income from the suit Kibanja which was occupied by the appellant and his family, the learned Magistrate awarded the respondent Ushs. 7,000,000 with 10% interest in disguised general damages. That there was no evidence whatsoever to justify the award. - **50.** In reply, Counsel for the respondent submitted that the appellant has not shown which principle of awarding general damages was impugned. That the principle of law is that the appellate court will not interfere with the award of general damages by a trial court unless the trial court acted upon a wrong principle of law. Counsel relied on **Crown Beverages v Sendu Edwards SCCA No. 001 0f 2005.**

- **51.** It is now trite law that the appellate court will not interfere with the exercise of judicial discretion by a lower court unless the lower court failed to exercise discretion judiciously. See **Nuru Kaaya v Crescent Transportation Limited S. C Civil Appeal No. 6 of 2002.** - 52. The award of general damages is a matter of judicial discretion. The learned trial Magistrate at page 12 of her judgment clearly highlighted the circumstances that formed her basis for the award. She stated that it was undisputed evidence of the plaintiff that the defendant adamantly refused to vacate the suit land even after she had tried to peacefully evict him from her beneficial interest. That it has been back and forth between the plaintiff and the defendant in various courts coupled with the fact that the plaintiff is an elderly woman. - 53. I believe the learned Chief Magistrate exercised her discretion judiciously and I see no reason to fault her for the award of general damages with interest of 10% from the date of judgment till payment in full. - 54. Therefore, ground 5 is resolved in the negative.

55. In consideration of the foregoing, the appeal stands dismissed with costs of the appeal awarded to the respondent.

### **I SO ORDER**.

**…………………………..**

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

### **2nd /12/2024**

# **Delivered on the 2nd day of December,2024 electronically via**

#### **ECCMIS.**