[2024] UGHC 1264

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO CIVIL APPEAL NO. HCT-17-CV-CA-0022 -2023**

**(Arising from Luwero Chief Magistrates Court Civil Suit No. 108 of 2012)**

### **1. TEDDY NABAKOOZA 2. KALEMEERA AMOS……………………………APPELLANTS VERSUS DOROTHY NATESE SAMALI MUKASA ……… RESPONDENT**

## **BEFORE: LADY JUSTICE HENRIETTA WOLAYO JUDGMENT**

#### Introduction

1. By a memorandum of appeal filed on 3.10.2023, the appellants Teddy Nabakooza and Kaleemera Amos, appealed the judgment of Kyomugisha Evelyn Setrina Magistrate grade one dated 24.11.2017 on six grounds of appeal to which I shall revert later in the judgment. Both parties filed written submissions as directed which I have carefully considered along with the authorities.

#### Background

2. The background of this case is that the respondent Dorothy Natese Samalie Mukasa sued the appellants – Teddy Nabakooza and Kalemeera Amos in Luwero chief magistrate's court **Civil Suit No.108 of 2012** for trespass, a permanent injunction and eviction of the first respondent Teddy Nabakooza's family graves on the land comprised in Block 372 Plot 8 situate at Kabala East Buganda, Bulemezi.

- 3. In their written statement of defence, the appellants averred that the land belonged to both of them with Nabakooza having inherited it as a kibanja from her father while Kaleemera claimed to be a bona fide purchaser. - 4. The learned Trial Magistrate H/W Evelyn Setrina, Grade 1 in a judgement dated 24th of November, 2017 held that Natese Mukasa was the rightful owner of the suit land and that none of the appellants (Nabakooza and Kalemera) had an interest in the suit land and were thus adjudged trespassers. The learned trial magistrate issued an eviction order, a permanent injunction, and awarded damages to the respondent. - 5. Being dissatisfied with the judgment, Nabakooza and another lodged an appeal in High Court Civil Division Kampala on 20th of September, 2018 vide Civil Appeal No. 06 of 2021 seeking for an order setting aside the lower court's judgement and orders. - 6. At the hearing of **Civil Appeal No. 06 of 2021,** Natese's counsel raised a preliminary objection that the appeal was filed out of time without leave whereupon my sister Basaza Waswa J in her Ruling dated 26 4. 2022 dismissed the appeal for being filed out of time without seeking leave. On 2.6.23, Nabakooza and another filed HCT-17-LD-MC-0018-2023 for extension of time to lodge the appeal. On 21.9.2023, I allowed the application hence this judgment.

#### Duty of the first appellate court

- 7. This court has a duty to re-appraise the evidence and all materials adduced in the trial court and arrive at its own conclusions on issues of fact and law bearing in mind it did not have the opportunity to observe the demeanor of witnesses. **Fr. Narcensio Begumisa and three others v Eric Tibegaga SCCA No. 17 of 2002** refers. - 8. No issues were framed prior to the commencement of the trial in the lower court but the learned trial magistrate framed issues two issues: - a. Whether the defendants have any interest in in Block 327 Plot 8 land at Kabala East Buganda Bulemezi. - b. Remedies - 9. In the trial court, the legal burden of proof was on the respondent Mukasa Netese Samali to prove her case on a balance of probabilities while the evidential burden of proof was on both parties to prove on a balance of probabilities the existence of facts they alleged.

#### Respondent's case at the trial

10. Dorothy Natese was represented by Viola Mukasa as donee of a power of attorney dated 8.6.2012 and duly registered with the Registrar of Documents, the responsible office at the time. It was not disputed that Dorothy Netese is the registered proprietor of Bulemezi Block 327 Plot 8 Kabala measuring 3.25 hectares (8 acres) having been registered on 27.5. 2009 after a purchase from Jessica Ndagire who had been earlier registered as proprietor on 3.10.1974.

- 11. What was in contention at the trial court was the legal position of the appellants Teddy Nabakooza and Kelemeera Amos on Block 327 Plot 8. It was Netese's case that the two were trespassers. She relied on four witnesses to prove this claim. Viola Mukasa PW1 aged 54 years, resident of Ntinda Mutesa II road testified on behalf of Netese who was in the United Kingdom. - 12. According to Mukasa Viola, she and others went to open the boundaries in 2009 after the purchase and erected a hedge. On her return to the land, she found the hedge had been cleared so she realized there was a problem. On raising concerns about the hedge, Nabakooza claimed it was her land. According to Mukasa, the land measured approximately four acres and the area under trespass had a grave of Nabakooza's father. It also emerged in crossexamination of Mukasa by Nabakooza that the later had demanded hefty compensation to move from the land and that space was available to relocate the graves. As for Keleemera, Mukasa Viola did not find him on the suit land in 2009. - 13. Isaac Wasonko, aged 42 years, resident of Nansana , Wakiso district gave further details about the dispute. It was his testimony that his late father Efusa Wasonko gave some people three acres of his land comprised in Block 327 Plot 6 measuring 24 acres during his lifetime. It was not disputed that Plot 8 is adjacent to Plot 6 and that one Nampa took over the three acres and that Nabakooza claims under Nampa. It was after Natese bought Plot 8 in 2009 that

it was realized that while the three acres were on Plot 6, Nabakooza had crossed to Plot 8.

- 14. Nakyeyune Malwadde Florence PW3 aged 56 years, resident of Kasangati Gayaza described Nabakooza as sister to Nampa and that she knows them both as well as the plaintiff Natese. According to Nakyeyune, she came onto the suit land in 2006 when she was sent there by Malwadde. She found when Nabakooza was staying on Nampa's land but who started utilizing the suit land in 2008 planting sweet potatoes. - 15. As for Keleemera, Nakyeyune's testimony is that he is on Nduga's land and by the time she left the suit land in 2010, Kaleemera was not utilizing it but when she visited the land briefly in 2010, he had grown potatoes on the suit land. In cross-examination, the testimony of Nakyeyune is that her mother used stay on the suit land and she started utilizing it in 2008. - 16. The last witness for the respondent Natese was Arinaitwe Pathius aged 26, a surveyor with a Bachelor's degree in Land survey MUK 2013. He opened boundaries for Block 327 Plot 8 on 20.4.2013 and found it exists. He also found two people using part of the land, namely, Kelemera Amos was on 0.58 hectares (1.45 acres) and Nabakooza was on 1.1 hectares (2.67 acres). In total, Plot 8 measures 8. 03 acres. - 17. The facts that emerge from the foregoing analysis of the respondent's case are that she acquired registered title in 2009 after purchasing the suit land Block 327 Plot 8 from Ndagire Jessica who had inherited it from her father Mukasa. On acquiring this land in

2009, Nakalyowa PW1 visited it and found when Nabakooza was claiming a portion of it which the surveyor ascertained measures 2.67 acres. Nakyeyune PW3 stayed on the suit land from 2006 to 2008 and it was 2008 that Nabakooza started growing potatoes on the suit land.

- 18. It also emerged form PW2 Wasonko Isaac that Nabakooza and her sibling Nampa are on three acres on Block 327 Plot 6. His father Wasonko Efusa( late) gave to the predecessor of Nampa and Nabakooza these three acres . - 19. As for Keemera, the facts that emerged were that he is on Nduga's land and was not on the suit land in 2009 when Mukasa Viola PW1 came to the land to open boundaries because she only metions finding Nabakooza on the suit land. Furthermore, when Nakyeyune PW3 left the suit land in 2010, Kaleemera was not using it which means he entered the land soon thereafter although Mukasa testified that he entered the suit land in 2009. I find this a minor contradiction given that Mukasa testified for the respondent as holder of Power of Attorney.

#### Appellants' case in the trial court

20. Turning to the appellants' case in the trial court, according to Nabakozza Teddy aged 52 years, resident of Kabara, Kiwuma , Nakaseke district, as testified by Wasonko Isaac, her father Kigala bought a kibanja from late Wasonko in 1975 at 40,000/ but the sale agreement got lost during the war of 1981-86 and on his death in 1992, Nabakooza and her siblings Nampa and Sempa shared the kibanja among themselves. Her testimony is that she got three acres. Furthermore that all her parents and brother Sempa are buried on the kibanja /suit land and when the respondent opened boundaries in 2010, it was found that Nabakooza's kibanja was in the suit land.

- 21. In cross-examination, the testimony of Nabakooza is that she permanently settled on the suit land in 2000 and that is when she was officially showed her share of kibanja by Nampa which was on Wasonko's land Plot 6. She also confirmed that Wasonko testified about the kibanja her father bought and that it is the very kibanja in issue. - 22. Evidently, by her own testimony, Nabakooza admits that her kibanja is on Plot 6 and not Plot 8 which belongs to Natese. She also admits that her father late Kigala bought a kibanja on Plot 6 from Wasonko Efusa in 1975 and that she and her siblings Nampa and late Sempa shared this kibanja among themselves. By implication, they shared three acres between them a fact confirmed by Wasonko their landlord who testified that his father sold their father three acres. The fact that Nabakooza remembered that her father paid 40000/ to Wasonko in 1975 but could not remember the acreage he bought speaks to deliberate untruthfulness. - 23. Furthermore, that she settled on the suit land in 2000 is questionable but true only as for as it relates to her share on Plot 6. Nakyeyune PW3 who moved to the suit land from 2006 confirmed that it was in 2008 that Nabakooza entered the suit land which at that time was still in the names of Jessica Ndagire the previous owner. This piece of evidence is corroborated by Viola Mukasa PW1

and Wasonko PW2 that it was when boundaries were opened in 2009 that it was discovered that Nabakooza had encroached on Plot 8.

- 24. It is evident from her testimony that Nabakooza made no distinction between the kibanja she inherited from her father in 1992 when he died and the portion of land she encroached on Plot 8, insisting that it is part of what she inherited from her father which was not the case. - 25. As found by the learned trial magistrate, Wasonko could not have sold Kigala a kibanja on his sister Jessica Ndagire's land in 1975 when she was registered on it in 1974 and if it had been the case, the sale would have been invalid as Wankoko would not have had legal capacity to sell it. Obviously, Wankoko sold Kigala three acres only and her occupation of 2.67 acres on Natese's land is trespass. - 26. Regarding Kalemera DW2, aged 59, resident of Kabara, Nakaseke district, the second appellant, he bought his kibanja in 1998 from Sepi Banasisayego . It was Keleemera's testimony that the kibanja he bought was on Wasonko's land (Plot 6) but later when the children of Wasonko shared land it turned out to be on Natese's land. Jessica Ndagire, the predecessor of Natese's Plot 8 was registered in 1974 long before 1998 when Kaleemera bought his kibanja from one Sepi. Evidently, Kaleemera admits to being a trespasser on Natese's land. He claims two and half acres on Natese's land and four acres on Ndunga's land although PW4 Arinaitwe the surveyor found that he was on 1.45 acres on Natese's land Plot 8.

- 27. DW3 Mugerwa Christopher, claimed that Kigala father of Nanakoza had 13 acres on Wasonko's land. This is not credible because Isaac Wasonko the heir testified that the land measured 24 acres of which he gave three acres of kibanja to Kigala. It is more probable than not that Wasonko Efusa could not have given 13 acres to Kigala. Mugerwa also corroborated Kaleemera that the later bought his kibanja from Sepirian Banisasiyego in 1998. - 28. DW4 Raphael Rugumire testified that Kigala bought seven acres and that Nabakkoza shared three acres of this seven acres, Nampa got two acres while Sempa got one acre. This means Kaleemera second appellant bought from Sepirian the kibanja on Natese's land. He also testified that Nabakooza built her house on the suit land in 2015 long after Natese had filed a suit against her in 2012. - 29. The last defence witness Kabwogi Geoffrey , aged 60 years, resident of Kabala and his testimony shows that Keleemera bought Sempa's kibanja on Wasonko's land and it measures one acre. Evidently, this means Sempa is a sibling to Nabakooza and Nampa who shared among them their father's kibanja on Wasonko's land Plot 6. This piece of testimony confirms that the kibanja was three acres and each shared one acre. This means, Nabakooza has trespassed on Natese's land by 2.67 acres. While Kaleemera trespassed on one and half acres of Natese's land in 2010 as confirmed by Nakyeyune PW3.

- 30. From the foregoing analysis, it is more probable than not that the two respondent are trespassers on Plot 8 which neighbours Plot 6, a fact confirmed by the surveyor Arinaitwe PW3 and more importantly by the learned trial magistrate when she visited the locus. - 31. In the premises, the learned trial magistrate properly evaluated the evidence and arrived as a correct conclusion on the facts. I now turn to the grounds of appeal. I note that while counsel for the appellants argued only grounds one, two, four and six separately and dropped grounds three and five, counsel for the respondent argued grounds one, two, three and five together. Counsel then argued grounds four and six separately. I will only consider grounds argued by counsel for the appellants.

#### **Ground four**

*The learned trial magistrate erred in proceeding to hear the matter without scheduling, hence occasioning a miscarriage of justice.*

32. Without citing any law, counsel for the appellant faulted the learned trial magistrate for proceeding without scheduling the case. On 1.11.2012 when Byaruhanga Jesse Chief Magistrate as he then was, recorded the opening statement of counsel Katamba for the plaintiff Natese only because the defendants Nabakooza and Kaleemera were not represented. Unfortunately, issues were not framed. Fortunately, the trial magistrate who wrote the judgment framed issues which basically capture the dispute. The omission to record the defendants' facts was not fatal and cannot be a ground to set aside the appeal. Ground four fails.

# **Ground one**

*The learned trial magistrate erred in law and in fact when she failed to properly evaluate the evidence on record and arrived at an erroneous decision.*

## **Ground two**

*The learned trial magistrate erred in failing to correctly apply the law on trespass to the facts, hence arriving at a wrong conclusion.*

- 33. One of the points raised by counsel for the appellant under this ground is that the respondent Natese sued the appellants for trespass on Block 327 Plots 8, 7, and 6 yet the trial court only found trespass on Plot 8. I find no merit in this submission because the trial magistrate was not duty bound to find trespass where there was none. She properly evaluated the evidence including the fact that the first appellant Nabakooza's kibanja falls in Plot 6 which was registered to Wasonko while Kaleemera's interest falls partly in Plot 7 registered to Nduga and partly on Natese's land. - 34. The other point raised by counsel for the appellants is that the first appellant has a burial ground on Plot 8. I re-evaluated the evidence and found that she trespassed on Plot 8 which means the burial ground is unlawfully on the respondent's land. Ground one of appeal fails.

# **Ground six**

*The learned trial magistrate erred in law and in fact when she failed to consider the glaring admissions and contradictions in the plaintiffs' case hence occasioning a miscarriage of justice.*

- 35. Counsel for the appellant raised several points under this ground. Firstly, that the respondent had agreed to compensate the first appellant but failed to agree on the amount. According to counsel, this is an admission that the first appellant had an interest in the suit land. On the contrary, this was an attempt to reach an amicable settlement of the dispute but it was not an admission that the first appellant was lawfully on Plot 8. - 36. Secondly, counsel for the appellant submitted that the appellants are bona fide occupants within the meaning of **Section 29(2) of the Land Act Cap. 227.** I have found that the first appellant entered Plot 8 in 2008 according to PW3 Nakyeyune who moved to the land to look after it in 2006. I discounted the first appellant's testimony that she moved into the suit land in 2000 and instead, I found that she moved into her one acre on Plot 6 in 2000. This being the case, the submission of counsel for the appellants that the burial grounds in Plot 8 were established in 1992 when Kigala father of the first appellant died is without merit. While it is true that Kigala died in 1992, I disregard Nabakooza's evidence that she buried her father in Plot 8 at the time especially when she first settled in her lawful kibanja on Plot 6 in 2000 and when I have found that she encroached on Plot 8 in 2008. Therefore, just because the grave is currently located in Plot 8 does not means it was there from 1992.

- **37.** It follows that I agree with the submissions of counsel for the respondent that the first appellant is not a bona fide occupant nor is she in adverse possession so as to bar the respondent from suing for recovery of land within the parameters of S**ection 5 of the Limitation Act Cap. 70.** - 38. As for the second appellant, he bought his kibanja in 1998 in Nduga's land but he encroached on Natese's land in 2010. He is a trespasser as he entered Plot 8 without consent of the registered owner. Ground six fails. - 39. Counsel submitted that the first appellant had a few crops on the land in 2009 according to PW1 Viola Mukasa Nakalyowa and that therefore, it was evidence of prior possession. As submitted by counsel for the respondent, it was in 2009 when the respondent opened boundaries and realized there was trespass and in 2012, she sued the first appellant. - 40. As for the second appellant, he bought his kibanja in 1998 on Nduga's Plot 7 but the encroachment on the respondent's land was discovered in 2010 and the dispute referred to local counsel authorities. I find that the respondent got to know of the encroachment in 2010 and she sued in 2012. Her action is therefore not time barred. Ground six fails.

#### Orders

41. As all the grounds of appeal have failed, this appeal is dismissed and the judgment and orders of the trial court are confirmed. I wish to repeat them here for emphasis and clarity:

- a) The appellants Teddy Nabakooza and Kaleemera Amos are declared trespassers on Bulemezi Block 327 Plot 8. - b) The respondent Dorothy Natese Mukasa, the registered proprietor of Bulemezi Block 327 Plot 8, is entitled to possession of the portions on which the appellants have trespassed. - **c)** An order for vacant possession hereby issues against Nabakooza Teddy and Kaleemera Amos who are given 60 days from the date of this judgment to voluntarily vacate the land. Nabakooza shall deliver vacant possession of 2.67 acres on Plot 8 while Kaleemera shall deliver vacant possession of 1.45 acres on Plot 8. In default, an order for vacant possession will issue in accordance with the **Land Eviction Practice Directions, 2021.** - d) The two appellants are hereby directed to exhume the remains of their loved ones they buried in the suit land and relocate them. Nabakooza will relocate graves of her relatives to Plot 6 where she has one acre. Kaleemera will relate the grave of his worker to the kibanja on Nduga's land (Plot 7). This order shall be effected within fourteen days from the date of this judgment and in default, the respondent Dorothy Natese Mukasa, shall be at liberty to cite the appellants in contempt. - e) A permanent injunction hereby issues restraining the appellants Nabakooza and Kaleemera from interfering with the respondent's quiet enjoyment. - f) General damages of five million paid into court shall be paid to the respondent Dorothy Natese 30 days from the date of this judgment.

The appellants Nabakooza and Kaleemera shall pay the respondent Dorothy Natese Mukasa costs of this appeal and the court below. **DATED AT LUWERO THIS 31ST DAY OF JANUARY 2024**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO**

Legal representation

Nyanzi Umar of Muslim Centre for Justice and law for the appellants

Mandela Araali for the respondent of DAB Advocates.