[2025] UGHC 213

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CONSOLIDATED CIVIL APPEAL NO. 06 OF 2023 (ARISING FROM CIVIL SUIT NO.60 OF 2020)**

#### **1. DANNY SSOZI**

**2. STANSIO MUWONGE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

#### **VERSUS**

**PATRICK MAWANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **AND**

### **CIVIL APPEAL NO.24 OF 2023 (ARISING FROM CIVIL SUIT NO.60 OF 2020)**

#### **PATRICK MAWANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

- **1. DANNY SSOZI** - **2. STANSIO MUWONGE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

### **JUDGMENT.**

### **Introduction.**

- 1. In Civil Appeal No.06 of 2023, the Appellants Danny Ssozi and Stansio Muwonge being dissatisfied with the Judgment and orders of H/W Nzwebe Philip, Senior Magistrate Grade One at the Chief Magistrates Court of Masaka at Masaka under Civil Suit No.060 of 2020, brought this appeal seeking orders that the Appeal be allowed and the Judgment and orders of the Trial Magistrate be set aside, Civil Suit No. 60 of 2020 be dismissed and costs of this Court and the Court below be provided for. - 2. In Civil Appeal No.24 of 2023, the Appellant Patrick Mawanda being dissatisfied with the Judgment and orders of H/W Nzwebe Philip, Senior Magistrate Grade One at the Chief Magistrates Court of Masaka at Masaka under Civil Suit No.060 of 2020, brought this appeal seeking orders that the Appeal be allowed, the Judgment and orders of the lower Court be set aside, and costs of the Appeal and the lower Court be borne by the Respondents.

## **Brief Background to the Appeal.**

3. For clarity, Patrick Mawanda was the Plaintiff in the lower Court while Danny Ssozi and Stansio Muwonge were Defendants. Since the appeals were consolidated, I will

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refer to the parties as Plaintiff and Defendants as per the lower Court record and for ease of reference. The background as per the lower Court record and from the pleadings even the Joint Scheduling Memorandum in Civil Suit No. 60 of 2020 is that, the Plaintiff, Patrick Mawanda sued the Defendants seeking for a declaration that he is a bonafide occupant of a Kibanja measuring 100ft X 251ft X 251ft X 173ft situate at Buddu Block 146 Plot 29, a declaration that the Defendants, Danny Ssozi and Stansio Muwonge are trespassers on the suit Kibanja, an order of eviction, a permanent injunction, general damages, interest and costs of the suit.

- 4. The Plaintiff alleged that on the 6th day of August 2010, he purchased a Kibanja located at Kawanda Lutente Kalungu District measuring 100ft x 251f x 251ft x 173ft from Christine Birabwa Nsubuga at a consideration of Shs. 1,150.000/=. That Birabwa Christine had bought this Kibanja from the late Leo Kamya Ssalango on the 9/8/1986 and utilized the same without any interference. That the Plaintiff took possession and cultivated several crops on this Kibanja without any interference. That between December, 2019 and January 2020, the Plaintiff learnt that the 1st Defendant had sold off the Mailo interest to the 2nd Defendant and later the 2nd Defendant on 18/9/2020 without the Plaintiff's consent forcefully entered the entire Kibanja evicted him therefrom, graded all his crops without a Court order. That the Defendants claimed that Christine Birabwa had been compensated for what she occupied on humane grounds. The Plaintiff contended that Birabwa Christine was a bonafide occupant with good title to pass to him which she got from the late Leo Kamya Ssalongo. - 5. In defence, the Defendants averred that; the 1st Defendant, as a registered proprietor of the land comprised in Buddu Block 146 Plot 29 at Kawanda, Lutente Kalungu District and did not recognize Christine Birabwa Nsubuga as a bonafide occupant on his land, and that the Plaintiff is also not a bonafide occupant thereon. That the sale of the suit Kibanja by Christine Birabwa Nsubuga to the Plaintiff was invalid because she did not get the 1st Defendant's consent. That the Plaintiff has no interest in the suit land which was lawfully sold to the Defendants. That the 2nd Defendant has the right to take possession and utilize his land. That by the time the 2nd Defendant purchased the suit land, it had no encumbrances whatsoever, and that the Defendants have never destroyed the Plaintiff's crops. - 6. In their Joint Scheduling Memorandum, the parties agreed on the following issues which Court made decision on: - *i. Whether the Plaintiff is a bonafide occupant and the owner of the Kibanja measuring 100ft x 25lft x 25lft x 25lft x 173ft located on the Mailo land comprised in Buddu Block 146 Plot 29 situate at Kawanda Lutente, Kalungu District* - *ii. Whether the Defendants trespassed on the Plaintiff's suit Kibanja* - *iii. Whether the Defendants unlawfully evicted the Plaintiff from the suit Kibanja* - *iv. What remedies are available to the parties?*


7. The Trial Magistrate found in favour of the Plaintiff and made Judgment to that effect, and also did not order compensation, save for general damages. The Defendants being being dissatisfied with the said Judgment and orders thereto on the 28th April 2023 filed Civil Appeal No. 06 of 2023 in this Court. On the other hand, the Plaintiff was also dissatisfied with the same Judgment and orders delivered on the 28th April 2023 and filed Civil Appeal No. 24 of 2023 in this Court. This is the reason as to why both Civil Appeal No. 06 of 2023 and Civil Appeal No. 24 of 2023 were consolidated since they arise from the same decision and lower Court in Civil Suit No. 60 of 2020.

# **The Grounds of Appeal in Civil Appeal No. 06 of 2023.**

- 8. The Appellants, Danny Ssozi and Stansio Muwonge in Civil Appeal No. 06 of 2023 raised four (4) grounds of appeal in their Memorandum of Appeal namely that: - *i. The Learned Trial Magistrate erred in law and fact when he held that the Respondent is a bonafide occupant yet his predecessor in title acquired the suit Kibanja in 1986.* - *ii. The Learned Trial Magistrate erred in law and fact when he found that the Respondent is a bonafide occupant and owner of a Kibanja measuring 100ft X 251ft X 251ft X 173ft situate on Buddu Block 146 Plot 29 at Kawanda, Lutente, Kalungu District in the absence of evidence to support the finding.* - *iii. The Learned Trial Magistrate erred in law and fact when he found that the Appellants trespassed on the Respondent's Kibanja and illegally evicted the Respondent.* - *iv. The Learned Trial Magistrate erred in law and fact when he rejected and/or ignored the Appellants' submissions thereby reaching an erroneous decision.*

# **The Grounds of Appeal in Civil Appeal No. 24 of 2023.**

- 9. The Appellant, Patrick Mawanda in Civil Appeal No. 24 of 2023 raised seven (7) grounds of appeal in his Memorandum of Appeal namely that: - *i. The Learned Trial Magistrate erred in law and fact when he entertained the defence case without the evidence of the Defendants themselves or any one holding Powers of Attorney for them.* - *ii. That the Learned Trial Magistrate erred in law and fact when he held that Christine Birabwa Nsubuga the former owner of the suit Kibanja did not obtain the consent of the mailo owner before she sold the suit Kibanja to the Plaintiff.* - *iii. That the Learned Trial Magistrate erred in law and fact when he held that the Defendants legally acquired the land yet the former mailo owner sold to them the suit land before giving the former Kibanja owner Christine Birabwa Nsubuga the first priority to purchase the mailo interest therein.*

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- *iv. That the Learned Trial Magistrate erred in law and fact after holding that the Defendants were trespassers on the Plaintiff's suit Kibanja but they could not be evicted therefrom because they were in actual possession thereof.* - *v. That the Learned Trial Magistrate erred in law and fact when he ordered that instead of the Defendants vacating and handing over the suit Kibanja the Plaintiff should instead be compensated by the trespassers of his suit Kibanja at the value at the time when the other Bibanja holders were compensated and further without any formular to be followed in the compensation or before the valuation of the suit Kibanja is done.* - *vi. That the Learned Trial Magistrate having found and held that the Defendants trespassed on the suit land, destroyed the Plaintiff's crops, illegally evicted him therefrom and took over possession of his Kibanja to date erred in law and fact when he awarded the Plaintiff a paltry sum of Ugx.2,000,000/= (Two Million shillings) only as general damages.* - *vii. That the Learned Trial Magistrate having found and held that the Defendants are trespassers on the suit land and the Plaintiff is a bonafide occupant erred in law and fact when he denied the Plaintiff the costs of the suit.*

# **Representation and hearing.**

10. The Appellants Danny Ssozi and Stansio Muwonge in Civil Appeal No. 06 of 2023 were represented by M/s Kalenge, Bwanika , Kisubi & Co. Advocates while the Respondent Patrick Mawanda was represented by M/s Magellan Kazibwe & Co. Advocates. Similarly, the Appellant in Civil Appeal No. 24 of 2023 was represented by M/s Magellan Kazibwe & Co. Advocates while Danny Ssozi and Stansio Muwonge, the Respondents were represented by M/s. Kalenge, Bwanika , Kisubi & Co. Advocates. The Appeal was heard by way of written submissions and the parties filed their respective submissions which I have considered although will not restate all the content therein.

# **Duty of the first Appellate Court.**

- 11. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe v Orient Bank Ltd CACA No. 4 of 2006*. - 12. In case of conflicting evidence, the Appellate Court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).*

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# **Determination of Civil Appeal No. 06 Of 2023. (Danny Ssozi and Another Versus Patrick Mawanda)**

13. Counsel for the Appellants abandoned ground 4 of appeal and opted to submit only on grounds 1 and 2 together and 3 alone. I will only resolve grounds 1 and 2 together, and 3 alone.

## **Grounds 1 and 2.**

- *i. The Learned Trial Magistrate erred in law and fact when he held that the Respondent is a bonafide occupant yet his predecessor in title acquired the suit Kibanja in 1986.* - *ii. The Learned Trial Magistrate erred in law and fact when he found that the Respondent is a bonafide occupant and owner of a Kibanja measuring 100ft X 251ft X 251ft X 173ft situate on Buddu Block 146 Plot 29 at Kawanda, Lutente, Kalungu District in the absence of evidence to support the finding.* - 14. Counsel for the Appellants submitted that according to Paragraph 5 (a) of the Plaint, the Plaintiff pleaded that he purchased the suit Kibanja from Ms. Christine Nsubuga (PW2) on the 06th day of August 2010. It was PW2's testimony that she purchased the same suit Kibanja on 09th August 1986 from Salongo Leo Kamya. That the Plaintiff's predecessor in title, PW2; testified that she purchased the suit Kibanja on 09th August 1986. That the sale agreement between PW2 and a one Leo Kamya Salongo was adduced and marked as PExh 4. That under Section 29 (2) of the Land Act as amended, a bonafide occupant means a person who before the coming into force of the Constitution had occupied or utilized any land unchallenged by the registered owner for twelve years or more. Subsection 5 of the same provision is to the effect that any person who has purchased the interest of a person qualified to be a bonafide occupant shall be taken to be a bonafide occupant. That the Plaintiff / Respondent's predecessor in title; Christine Birabwa purchased the suit Kibanja in the year 1986, and that she does not qualify to be referred to as a bonafide occupant and as such, she could not bestow such an interest to the Plaintiff to whom she sold the suit Kibanja in the year 2010. - 15. That at page 15, paragraph 4 of their submissions, the Plaintiff / Respondent submitted that the Plaintiff / Respondent's predecessor in title qualifies to be a bonafide occupant because she bought the suit Kibanja from a one Leo Kamya Salongo who had acquired the same Kibanja in 1970. That the Plaintiff / Respondent did not adduce any evidence to prove that the said Kamya Leo Ssalongo indeed

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purchased the suit Kibanja or occupied the same Kibanja by 1983 as is required by Section 29 (2) & (5) of the Land Act. That in the agreement of sale of a Kibanja executed between the Plaintiff / Respondent and PW2 that was admitted as PExh 1, there was no mention of the size of a Kibanja measuring 100ft X 251ft X 251ft X 173ft. That this omission was admitted by the Plaintiff / Respondent as per the record of proceedings. That the measurements of the suit Kibanja as decreed by the Trial Magistrate do not as well appear in PEx4, the agreement between the Plaintiff's predecessor in title and Kamya Leo Ssalongo. That during cross - examination of DW2, Mr. Ssaka Ssenyunja, the draftsman of the agreement between the Plaintiff/Respondent and PW2 testified that by the time he drafted the sale agreement, the parties never measured the Kibanja. The vendor and buyer never showed that they had measured the suit Kibanja and never knew the size of the Kibanja sold/bought. That PW2, the Plaintiff / Respondent's predecessor in title admitted during cross - examination that she did not remember the demarcation of the Kibanja she bought. One wonders where the Plaintiff/ Respondent got the demarcations that he referred to in the Plaint.

- 16. That the Plaintiff / Respondent failed to lead evidence to prove that Kamya Leo Ssalongo was in occupation of the suit Kibanja by 1983. That the Plaintiff / Respondent did not as well lead any evidence to prove the size of the Kibanja he claimed to occupy. It is the argument of Counsel for the Appellants that the Learned Trial Magistrate erred in law and fact when he held that the Plaintiff / Respondent is a bonafide occupant yet according to the evidence on record; his predecessor in title acquired the suit Kibanja in 1986. That the Trial Magistrate erred in law and fact when he found that the Respondent is a bonafide occupant and an owner of a Kibanja measuring 100ft X 251ft X 251ft X 173ft situate at Buddu Block 146 Plot 29 at Kawanda, Lutente, Kalungu District in the absence of evidence to support the finding. - 17. For the Respondent, it was submitted that Christine Birabwa Nsubuga (PW2) testified that she bought the suit Kibanja from Leo Kamya Salongo on 09/08/1986, and referred to a copy of the Kibanja sale agreement between Leo Salongo Kamya and Christine Birabwa dated 09/08/1986 and its English translation exhibited as Exh. Piv. That Christine Birabwa Nsubuga (PW2) stated that the late Leo Kamya Salongo had acquired that piece of Kibanja sometime back in the early 1970s and that he subdivided the land and sold off portions to several people including her. She added that she took over physical possession of her Kibanja immediately in August 1986. That Christine Birabwa Nsubuga (PW2) stated that by the time she purchased the said Kibanja from Leo Kamya Salongo, the Defendants were not known to own land in Lutente. That she perused the Certificate of Title for Buddu Block 146 Plot 29 and discovered that the same was produced on 12/01/1987 and the 1st Defendant got registered thereon on 31/01/2018. That during cross - examination of Joseph Lutaaya (DW1) the caretaker of the suit land, he testified that Kayira knew and recognized Leo Kamya Salongo as a Kibanja owner on his land and that the sale agreement between Leo and Christine was lawful/legal. That during the cross examination of Ssaka

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Ssenyange (PW2), he testified that he knew Christine Birabwa Nsubuga as the owner of the suit Kibanja and that for the time she was on the suit Kibanja there was no dispute thereon from the mailo land owner or from his relatives.

18. Counsel submitted that neither the former mailo owner nor his relatives have ever challenged the ownership of Leo Kamya Salongo who was the former Kibanja owner and his sale to Christine Birabwa Nsubuga and thus the arguments against the Respondent being a bonafide occupant are misconceived. That Christine Birabwa Nsubuga bought the suit Kibanja from the late Leo Kamya Salongo who had acquired the same in 1970 and thus became a bonafide occupant. That it therefore follows that Patrick Mawanda is a bonafide occupant as per Section 29(5) of the Land Act.

## *Analysis.*

- 19. The Trial Magistrate found that Christine Birabwa Nsubuga was a bonafide occupant, and that the Plaintiff by virtue of having purchased from a bonafide occupant becomes a bonafide occupant. - 20. According to **Section 1 (e)** of the **Land Act**, '*bonafide occupants and lawful occupants,' have the meanings assigned to them in Section 29 of the Act.* Section 29(2) (a) and (5) of the Land Act which stipulates as follows:

*"2. Bonafide occupant means a person who before the coming into force of the Constitution*

*a. had occupied and utilized or developed any land unchallenged by the registered owner or a first of the registered owner for twelve years... ……….*

*(5) Any person who has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant under this section shall be taken to be a bona fide occupant for the purposes of this Act."*

21. The evidence on record of the lower Court is that the Respondent/ Plaintiff purchased the suit Kibanja on 6th June 2010 from Christine Birabwa Nsubuga, who had also purchased the same from the late Leo Kamya Ssalongo, at a total sum of 1,150,000/=, and he immediately took possession of the suit Kibanja by cultivating crops thereon. The said Christine Birabwa Nsubuga confirmed selling the suit Kibanja to the Respondent, and it was her evidence that she had as well purchased the Kibanja from Leo Kamya Ssalongo on the 9th August 1986, and took immediate possession after the purchase. Her testimony at the lower Court was corroborated by that of PW3- Ismail Mukunza, and PW4- John Kaddu who testified that he was the neigbhour to

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the suit Kibanja when Christine Birabwa Nsubuga sold to the Respondent, Patrick Mawanda. The evidence of Christine Birabwa Nsubuga having sold to the Respondent was not weakened by cross-examination as per the record.

- 22. According to page 18 of the record of proceedings, DW1-Joseph Lutaaya who was a witness for the Defendants/now Appellants testified that he had stayed in Lutete village for 26 years, and that the mailo land owner was Kayira. That he knew the late Leo Kamya Ssalongo who was the owner of the suit Kibanja before he sold to Christine Birabwa Nsubuga. That the said Kayira had recognized Leo Kamya Ssalongo as a Kibanja owner on the land. That the Plaintiff purchased the suit Kibanja from Christine Birabwa Nsubuga. DW1- Joseph Lutaya testified that he was the caretaker and that the late Kayira sold the legal interest to the 1st Defendant/1st Appellant Danny Ssozi and at the time, the said Kayira former owner informed Danny Ssozi about the people on the land whom included the said Christine Birabwa Nsubuga. - 23. On page 20 of the record of proceedings, even DW2 Ssaka Ssenyunga who was also a witness for the Defendants, testified that he was the LC1 General Secretary and he knew Christine Birabwa Nsubuga as the owner of the suit Kibanja , and that there was no dispute and he is the one who wrote the Sales Agreement when Christine Birabwa Nsubuga was selling to Patrick Mawanda. The contention of the Defendants/Appellants, was that the said Christine Birabwa Nsubuga did not obtain consent of the then registered owner the late Kayira. - 24. In order for one to qualify as a *bonafide* occupant that person must satisfy the conditions set out in *Section 29 (2) and or (5)* of the Land Act, that is: - *1. Must have occupied and utilized the land in issue for 12 or more years before the coming into force of the Constitution on 8th October 1995 unchallenged by the registered owner or* - *2. Must have developed the land in issue unchallenged by the registered owner for 12 or more years before 8thOctober 1995, when the Constitution came into force. Or* - *3. Must have acquired interest of a person who satisfied the above conditions.* - 25. In *Kampala District Land Board &Chemical Distributors Vs National Housing & Construction Corporation SCCA No.2 of 2014* Court held that a person to successfully claim to be a bonafide occupant must have been in possession of the suit land for more than 12 years at the time of coming into force of the 1995 Constitution without any challange from the registered proprietor. Section 29 (5)of the said Act provides that

Page **8** of **16** any person who purchases interest of person qualified to be a bonafide occupant under this Section shall be taken to be a bonafide occupant for purposes of the Act.

- 26. From the above, and on the face of it, the Respondent would qualify as bonafide occupant. In my view, by the evidence of the Respondent/Plaintiff and the testimonies of DW1, DW2 point to one thing that the said Leo Kamya Ssalongo had been on the suit Kibanja for some time, though there are no clear dates, but the evidence on record indicates that he had used the suit Kibanja for long before selling to Christine Birabwa Nsubuga in 1986, and even though her interest was obtained in 1986, she also obtained the same interest from a person who had used the suit Kibanja for a long time, there was no evidence to challenge the said late Leo Kamya Ssalongo's long usage. I agree with the finding of the Trial Magistrate that since Christine Birabwa Nsubuga was a bonafide occupant having acquired the suit Kibanja on the 9th August 1986 from the late Leo Kamya Ssalongo, and that the Plaintiff by virtue of having purchased from a bonafide occupant becomes and is a bonafide occupant as well, since he acquired the interest of a person who satisfied the conditions of a bonafide occupant under Section 29 (2) and (5) of the Land Act. - 27. It is therefore my finding that the Trial Magistrate properly found that the Respondent, Patrick Mawanda is a bonafide occupant and owner of a Kibanja measuring 100ft X 251ft X 251ft X 173ft situate at Buddu Block 146 Plot 29 at Kawanda, Lutente, Kalungu District, and the evidence on record would lead to that conclusion. - 28. Grounds 1 and 2 of Appeal fail.

#### **Ground 3**

# *The Learned Trial Magistrate Grade 1 erred in law and fact when he found that the Appellants trespassed on the Respondent's Kibanja and illegally evicted the Respondent.*

- 29. Counsel for the Appellants/Defendants submitted that for the Trial Court to find that the Appellants / Defendants trespassed on the suit Kibanja; the Respondent /Plaintiff had to prove that he was in lawful possession of the suit Kibanja at the time the Appellants / Respondents entered thereon. That the Respondent / Plaintiff testified that upon execution of the purchase agreement on 6th August 2010, he immediately took over possession of the suit Kibanja. That considering that the Kibanja sale transaction between the Respondent / Plaintiff and Christine Birabwa Nsubuga is claimed to have taken place on 6th August 2010; the transaction is governed by the Land Act Cap. 227 (as amended). - 30. That under Section 34 (1) of the Land Act, a tenant by occupancy may, in accordance with the provisions of the Section, assign, sublet or sub-divide the tenancy with the consent of the land owner. That under subsection (3), prior to undertaking any

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transaction to which subsection (1) refers, the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his or her consent to the transaction. That Section 34 (9) of the Land Act is to the effect that no transaction to which Section 34 applies shall be valid and effective to pass any interest in land if it is undertaken without a consent as provided for under Section 34 of the Act.

31. That during cross - examination of the Respondent / Plaintiff, he admitted that he did not obtain the written consent of the land owner prior to buying the suit Kibanja. That in *Court of Appeal Civil Appeal No.208 of 2018, Jennifer Nsubuga Versus Micheal Mukundane & Shine Asiimwe* in the lead judgment of Monica K. Mugenyi, JA delivered on 17th March 2023, the Learned Justice of Appeal while construing the above provisions of the Land Act noted that;

"*My construction of Sections 34(3) and 35(1) of the Land Act is that they are couched in mandatory terms. ln any case, sub-section (9) unequivocally clearly states that no transaction to which section 34 applies shall be valid to pass any interest in land if it is undertaken without a consent as provided for*."

- 32. Counsel submitted that the land / Kibanja sale transaction between the Plaintiff/ Respondent and Christine Birabwa did not pass any interest in the Kibanja to the Plaintiff / Respondent for lack of consent of the land owner. That the Plaintiff/ Respondent cannot be said to have been in lawful possession of the suit Kibanja to maintain a cause of action of trespass to land against the Defendants / Appellants. That considering that the Plaintiff / Respondent was not in lawful possession of the suit Kibanja, he cannot as well claim to have been unlawfully evicted. That the Learned Trial Magistrate Grade 1 erred in law and fact when he found that the Appellants trespassed on the Respondent's Kibanja and illegally evicted the Respondent. - 33. Counsel for the Respondent did not submit on ground 3. In his judgment, the Trial Magistrate found that the Plaintiff stated in his evidence in chief that the Defendants forcefully entered the suit land, inspected it and when he wanted to know their intentions, they forcefully threatened to evict him. That, having held the Plaintiff to be a bonafide occupant as provided under Section 29(5) Land Act, the forceful entry before compensation was illegal. The Defendants' forcible entry before compensating the Plaintiff amounted to trespass on the Plaintiff's Kibanja.

## **Analysis.**

34. This ground of appeal is hinged on trespass and I shall resolve it in line with the law of trespass. Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land. Trespass is committed not against the land, but against the person in actual or constructive possession of the land. (See *Hajji Bumbakali versus*

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*Peter Muhairwe & Ors; Civil Suit No. 036 of 1999*, citing *Justine E M N Lutaaya versus Sterling; Civil Eng. Appeal No.11 of 2002;)*.

- 35. A claim for trespass to land can only succeed where the claimant proves that the disputed land belongs to him/her or the claimant is in either actual or constructive possession; that the Defendant had entered upon it and that the entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land. In the facts of this case, it is not disputed that the Respondent/Plaintiff was in actual possession of the suit Kibanja at the time when the Appellants/ Defendants evicted him and took possession without his consent. - 36. The major contention by the Appellant is that the Respondent/Plaintiff was not in lawful occupation and that he had not obtained consent of the Landlord before purchasing the suit Kibanja. - 37. *Section 34 of the Land Act* governs transactions with tenants by occupancy. It provides that prior to undertaking any transaction to which *subsection (1)* refers, the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his consent to the transaction. - 38. Further still, *Section 34 (9)* provides that:

*"No transaction to which this section applied shall be valid and effective to pass any interest in land if it is undertaken without the consent as provided for in this section and the recorder shall not make any entry on the of any such transaction in respect of which there is no consent. "*

39. In addition, *Section 35* gives the first option to assign the tenancy to the tenant by occupancy or the registered owner, as the case may be. In *Muluta Joseph vs. Katama Sylvano S. C. Civil Appeal No. 11 of 1999*, the Supreme Court stated that an agreement purporting to sell and transfer a Kibanja holding is not sufficient proof of acquisition of a lawful Kibanja holding in the absence of proof of the essential fact that would constitute creation of the Kibanja holding, which is consent of the mailo owner. The procedure for obtaining that consent was explained in the case of *Tifu Lukwago vs. Samwiri Mudde Kizza and another, S. C. Civil Appeal No. 13 of 1996* as follows; "*Whenever a Kibanja is sold, the seller introduces the buyer to the owner of the Mailo land on which the Kibanja is. If the owner had an agent who looks after that land the buyer is introduced to the agent, who in turn introduces him to the owner. In either case, the buyer upon being so introduced gives to the Mailo land owner or to the agent as the case may be, a gift called a Kanzu. Thereupon the buyer is recognised by the owner as the new Kibanja holder."*

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- 40. The importance of prior consent of the registered owner of the land was underscored by the Supreme Court and the Court of Appeal in their respective decisions in *Kisseka Saku vs. Seventh Day Adventist Church SCCA No.8 of 1993; and in Buwule M vs. Asumani Muqenvi CACA No. 24 of 2010***.** Both Superior Courts held to the effect that any transfer of Kibanja or customary holding without giving notice to the prescribed authority as registered owner renders such a transfer void. - 41. In this case, the Appellants argue that the Respondent/Plaintiff did not obtain consent of the registered owner prior to purchasing the suit land from the former Kibanja owner Christine Birabwa Nsubuga on 6th June 2010. The evidence on record indicates that the 1st Appellant, Danny Ssozi became registered owner on 31st January 2018 on the land situate on Buddu Block 146 Plot 29 at Kawanda, Lutente, Kalungu District. This implies that he purchased the suit land subject to the equitable interests of the persons who were already on the land whom included the Respondent, Patrick Mawanda. The averment that the Respondent did not obtain consent of the registered owner is devoid of merit, since the said 1st Appellant only became registered owner in 2018 yet the Respondent had already acquired equitable interest in the Kibanja on the land. One would ask, how could the Respondent get consent of the 1st Appellant who had not yet become registered owner in 2010. There was no evidence led by the Appellants/Defendants that the then registered owner, Emmanuel Bukko Kayiwa nor his administrators ever challenged the purchase and occupation by the Respondent. - 42. At page 10 of the record of proceedings, the Respondent/Plaintiff testified that at the time he purchased the suit Kibaja from Christine Birabwa Nsubuga , Lutaaya was the caretaker of the land of the late Leo Kamya Ssalongo., and that he got consent from the said Lutaaya who was the caretaker. In the case of *Tifu Lukwago vs. Samwiri Mudde Kizza and another, S. C. Civil Appeal No. 13 of 1996*, the Supreme Court stated as follows; "*……. If the owner had an agent who looks after that land the buyer is introduced to the agent, who in turn introduces him to the owner. In either case, the buyer upon being so introduced gives to the Mailo land owner or to the agent as the case may be, a gift called a Kanzu. Thereupon the buyer is recognised by the owner as the new Kibanja holder."* - 43. In this case, for all intents and purposes, my view is that the said caretaker Lutaaya was acting as an agent on behalf of Leo Kamya Ssalongo, and his consent would be valid basing on the circumstances of this case. Moreover, the conduct of the registered owner by leaving the Bibanja owners on the land for a long-time amount to acquiesce that would amount to consent. Even if there was no consent, the conduct of the landlord, would amount to consent by acquiescence. It is also my considered opinion that consent of the Landlord may be verbal and it doesn't necessarily need to be in writing. In the end, I find that there was the requisite consent to validate the said transactions.

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- 44. So since I have found that the Respondent was a bonafide occupant and he was in actual possession at the time when the Appellants evicted him and took possession without compensating him, their actions were unlawful, and therefore amount to trespass. This makes the argument of the Appellants to be without merit, Therefore, the Trial Magistrate properly found that the Appellants trespassed on the Respondent's Kibanja and illegally evicted him. - 45. Ground 3 of Appeal also fails. - 46. Since all grounds of Appeal have failed, I have not found any error of law nor fact in the decision of the Trial Magistrate and I hereby dismiss Civil Appeal No. 06 of 2023 with costs awarded to the Respondent. I make the following orders; - a. Civil Appeal No. 06 of 2023 is dismissed. - b. Costs of this Appeal are awarded to the Respondent

It is so ordered.

Judgment signed and delivered electronically at Masaka this 16^th day of April, 2025

*MANNA*

LAWRENCE TWEYANZE JUDGE. 16^th April, 2025.

**Determination of Civil Appeal No. 24 Of 2023. (Patrick Mawanda Versus Danny Ssozi and Another)**

# **CIVIL APPEAL NO.24 OF 2023** (ARISING FROM CIVIL SUIT NO.60 OF 2020)

PATRICK MAWANDA :::::::::::::::::::::::::::::::::::

VERSUS

#### DANNY SSOZI STANSIO MUWONGE::::::::::::::::::::::::::::::::::::

47. As earlier on noted, these appeals Civil Appeal No. 06 of 2023 and Civil Appeal No. 24 of 2023, were consolidated since they arise from the decision of same Civil Suit No. 60 of 2020.

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SMAMMY

## **The Grounds of Appeal in Civil Appeal No. 24 of 2023.**

- 48. The Appellant, Patrick Mawanda in Civil Appeal No. 24 of 2023 raised seven (7) grounds of appeal in his Memorandum of Appeal namely that: - *viii. The Learned Trial Magistrate erred in law and fact when he entertained the defence case without the evidence of the Defendants themselves or any one holding Powers of Attorney for them.* - *ix. That the Learned Trial Magistrate erred in law and fact when he held that Christine Birabwa Nsubuga the former owner of the suit Kibanja did not obtain the consent of the mailo owner before she sold the suit Kibanja to the Plaintiff.* - *x. That the Learned Trial Magistrate erred in law and fact when he held that the Defendants legally acquired the land yet the former mailo owner sold to them the suit land before giving the former Kibanja owner Christine Birabwa Nsubuga the first priority to purchase the mailo interest therein.* - *xi. That the Learned Trial Magistrate erred in law and fact after holding that the Defendants were trespassers on the Plaintiff's suit Kibanja but they could not be evicted therefrom because they were in actual possession thereof.* - *xii. That the Learned Trial Magistrate erred in law and fact when he ordered that instead of the Defendants vacating and handing over the suit Kibanja the Plaintiff should instead be compensated by the trespassers of his suit Kibanja at the value at the time when the other bibanja holders were compensated and further without any formular to be followed in the compensation or before the valuation of the suit Kibanja is done.* - *xiii. That the Learned Trial Magistrate having found and held that the Defendants trespassed on the suit land, destroyed the Plaintiff's crops, illegally evicted him therefrom and took over possession of his Kibanja to date erred in law and fact when he awarded the Plaintiff a paltry sum of Ugx.2,000,000/= (two million shillings) only as general damages.* - *xiv. That the Learned Trial Magistrate having found and held that the Defendants are trespassers on the suit land and the Plaintiff is a bonafide occupant erred in law and fact when he denied the Plaintiff the costs of the suit.*

#### **Preliminary matters:**

- 49. Counsel for the Respondents/Defendants raised two preliminary objections, the first that Civil Appeal No.24 of 2023 should be struck out with costs for having been filed out of time without the leave of Court. Secondly that grounds 3, 4, 5, 6 and 7 of the Memorandum of Appeal in Civil Appeal No.24 of 2023 are argumentative. - 50. For the Appellant/Plaintiff, Counsel submitted that the Appellant through his lawyers wrote a letter on 30/04/2023 requesting for typed and certified proceedings

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and judgment but the same were completed on 02/06/2023. That having received the physical copies of the typed proceedings, they immediately filed the Appellants' Memorandum of Appeal that very day. That the delay by Court to avail the typed and certified copies of the proceedings and judgment cannot be visited on the Appellant.

## **Determination of the first preliminary objection.**

- 51. Order 43 Rules 1 and 2 of the Civil Procedure Rules requires that every appeal to be instituted by a Memorandum of Appeal in a prescribed form. Justice B. Kainamura in *Ogbuoye vs Kawooya (Civil Appeal 40 of 2016) [20181 UG Comm C 58* relying on *Sempebwa William v Byamungu Muhammed. HCA No.12 of 2012*, stated that the mode of appealing from Magistrates Court to High Court is clearly stated under Order 43 r 1 CPR and it is by way of a Memorandum of Appeal. - 52. In this case, there is a Memorandum of Appeal in Civil Appeal No. 24 of 2023 which was filed in this Court on the 2nd day of June 2023. The question would be if the said Memorandum of Appeal was filed within the required time. - 53. **Section 79 of** *The Civil Procedure Act* provides that an appeal to the High Court shall lie within 30 days of the date of the decree or order of the Court. An appeal is commenced by a Memorandum of Appeal lodged in the High Court. An appeal filed out of time without the leave of Court is incompetent and will be struck out as incompetent (see *Loi Kageni Kiryapawo vs. Gole Nicholas Davis, S. C. Miscellaneous Civil Application No.15 of 2007*). However, in computing the period of limitation prescribed by the Section, the time taken by the Court in making a copy of the decree or order appealed against and of the proceedings upon which it is founded is excluded (see **Section 79 (2) of** *The Civil Procedure Act***).** - 54. Furthermore, Section 79 (1) of *The Civil Procedure Act* provides that an Appellate Court may for good cause admit an appeal though the period of limitation prescribed has elapsed. Good cause must relate and include the factors which caused inability to file the appeal within the prescribed period of 30 days (see *Tight Security Ltd vs. Chartis Uganda Insurance Co. Ltd H. C. Misc. Application No. 8 of 2014*). - 55. From the record of the lower Court, Judgment was delivered on the 28th April 2023 as rightfully pointed by Counsel for the Respondents, the Appellant did not apply for the record of proceedings and the time for filing the instant Appeal began the day of the judgment which is 28th April 2023 and ended on 29th May 2023. There is no evidence that the Appellant immediately after the Judgment applied for a certified copy of the record of proceedings, and it was not made available to him

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before the expiration of the mandatory 30 days. The letter which is on record which was filed in Court on the 13th July 2023 in my view was an afterthought, which is way after the time had lapsed and after the Appellant had filed the Memorandum of Appeal on 2nd June 2023 out of time.

- 56. The Appeal was clearly filed out of the mandatory time and there is no proper justification. There was no any Application for leave to file this appeal out of time and this makes this appeal incompetent in this Court. I therefore uphold the first preliminary objection and I strike out this appeal for being filed out of time without leave of Court which was in breach of Section 79 of the Civil Procedure Act. It is not necessary to address the other preliminary objection and nor the grounds of the appeal since this finding disposes off this appeal. I therefore strike out this Appeal with costs awarded to the Respondent. I hereby make the following orders; - i. This Appeal in Civil Appeal No. 24 of 2023 is struck out for being filed out of time. - ii. The Respondent is awarded costs of this Appeal.

It is so ordered.

For avoidance of doubt, Civil Appeal No. 06 of 2023 is dismissed with costs and Civil Appeal No. 24 of 23 is struck out with costs for being filed out of time without leave of Court.

Judgment signed and delivered electronically at Masaka this 16th day of April, 2025

……………………………………

**LAWRENCE TWEYANZE JUDGE. 16th April, 2025.**