[2023] UGHCLD 157

# THE REPUBLIC OF UGANDA THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL NO. 41 OF 2021 (ARISING FROM ENTEBBE CHIEF MAGISTRATES COURT CIVIL $\mathsf{S}$ SUIT NO. 69 OF 2014) FRANK BEZIRE TURINOMUJUNI .................................... **VERSUS** .................. RESPONDENT LUZZI FRANCIS .............. **JUDGMENT** $10$

# BEFORE. HON. LADY JUSTICE ELIZABETH JANE ALIVIDZA Representation

The Appellant is represented by M/s Sociis Path Advocates and the Respondent is represented by Uganda Christian Lawyers Fraternity.

#### Background. $15$

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This is a first Appeal against the judgment and orders of Her Worship Nakitende Juliet of Entebbe Chief Magistrate's Court delivered on the 16^th August 2021. In the lower Court, the Appellant sued the Respondent for a declaration that he is the rightful owner of the suit land, a permanent injunction, general damages and costs.

The suit land is situate in Sennya-Kasanje measuring approximately 3 acres. It was alleged that on the 5^th July 2014, the Respondent together with his agents went to the Appellant's land in Serinyabi-Kasanje and without any right or claim arrested his worker and stopped any works on the suit land. That the Respondent has since

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been in possession of the suit land and denied the Appellant access to the suit land and used it for his personal benefit.

During trial in the lower Court, it was the Appellant's case that he had bought the suit land from a one late Samuel Gayira by an agreement dated 28^th July 1986 for UGX 200,000 and he took over possession exclusively until 5^th July 2014 when the Respondent apparently trespassed on the suit land, removed boundary marks, arrested the Appellant's workers and forcefully took over possession denying the Appellant access hence the lower Court case.

- The Respondent on the other hand asserts that he rightfully acquired 35 the suit property through purchase of the said Kibanja on 24^th April 2001 from Lumbuye James Grace who in turn had bought from a one Mega Meemetereka in 1981. Currently, it is the Respondent that uses the said Kibanja for farming. - The lower Court went for a locus visit and established that the suit 40 land measures 1 acre and is neighbored among other people; the Appellant on the upper side but it has demarcation and is under the possession of the Respondent. During trial, the Appellant had two witness including himself while the Respondent had 5 witnesses. - After hearing both parties, Her Worship Nakitende Juliet found that 45 it wasn't in dispute that the suit land is under Kibanja interest on land owned by the Late Gayira Samuel and that since 2014 to date, the suit land has been in the Defendant's/Respondent's possession.

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The trial Magistrate then held that Defendant/Respondent proved ownership of the suit land and therefore is the rightful owner. Thus implying that he could not be a trespasser on his own land.

The trial Magistrate stated that it was the Plaintiff/Appellant who tried to fence off land that didn't belong to him. The Court then issued a permanent injunction against the Appellant. However I noted that

she did not indicate who had been in possession before 2014. This 55 would have helped clarify the history of the ownership of the suit land.

I noted that on 24^th November 2020, the lower Court had a locus visit and in her judgment, the learned Chief Magistrate made an analysis that the suit land is neighbored by Nasita at the bottom, Late Gayira [with graves] on the top left and the Appellant on left bottom. That it was approximately one acre. That it had potato heaps yet the Plaintiff/Appellant had told court that the suit land is 3 acres. That there was an unclaimed portion but none of the parties was claiming it.

The Court noted while at locus, that a consistent line of ownership was established and concluded that the current owner of the suit land was the Defendant/Respondent.

The Appellant was dissatisfied with the decision of Her Worship Nakitende Juliet hence this Appeal on the following grounds; 70

1. The learned trial Magistrate erred in law and in fact when she failed to evaluate the Appellant's evidence on adverse possession

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of the suit kibanja land in Serinyabi – Kasanje thereby reaching an erroneous decision.

2. The learned trial Magistrate erred in law and in fact when she 75 held that the Plaintiff did not adduce evidence of his ownership of the suit Kibanja land in Serinyabi – Kasanje thereby reaching an erroneous decision.

### *The law Applicable*

- This being a first Appeal, this Court is under an obligation to re-hear 80 the case by subjecting the evidence presented to the trial Court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. This duty is well explained in Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004] - KALR 236 as thus; 85

"It is a well-settled principle that on a first Appeal, the parties are entitled to obtain from the Appeal Court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the Appeal 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."

The parties are entitled to obtain from the Appeal court its own decision on issues of fact as well as of law [Pandya v. R [1957] EA. 336. It is incumbent on this Court therefore to weigh the conflicting evidence and draw its own inferences and conclusions in order to come to its own decision on issues of fact as well as $\phi$ law and

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remembering to make due allowance for the fact that it has neither seen nor heard the witnesses.

The Appellate Court is confined to the evidence on record. Accordingly, the view of the trial Court as to where credibility lies is entitled to great weight. However, the Appellate Court may interfere with a finding of fact if the trial Court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.

# Burden and Standard of proof

The burden of proof is upon the Plaintiffs to prove their case on a balance of probabilities. Section 101, 102 and 103 of the Evidence Act provide that he who asserts a fact must prove it. Whoever desires any Court to give the judgment as to any legal rights or liability dependent on the existence of the fact which he or she asserts must prove that fact exists.

The Court has to be satisfied that the Plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that, the more probable conclusion is that for which the Plaintiff contends, since the standards of proof is on the balance of probabilities /preponderance of evidence (see <u>Lancaster Vs Blackwell Colliery Co.</u> Ltd 1982 WC Rep 345 and SebulibaVs Cooperative Bank Ltd (1982) $HCB130$

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- The cardinal principle in civil cases is embedded under Section $101(1)$ 120 of the Evidence Act that whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts are in existence. It is further a cardinal principle of law that in civil suits all evidence - is proved on a balance of probabilities. See the cases of Miller V 125 Minister of Pensions [1947] 2 All. E. R 372 and Katumba V Kenya Airways, Civil Appeal 9 of 2008 (SCU)

In the instant case, Court is not bound necessarily to follow the trial Magistrate's findings of fact if it appears either that the lower Court clearly failed on some point to take account of particular 130 circumstances or probabilities materially to estimate the evidence or if the impression based on demeanor of a witness is inconsistent with the evidence in the case generally.

#### Resolution

To rule all out, I will go on to resolve the grounds as raised by the 135 Appellant concurrently.

It is evident that both grounds aimed at bringing out the fact that the Appellant while in the lower Court brought out the issues of ownership and adverse possession to the attention of the learned Magistrate but the latter did not apparently give them due attention which accordingly occasioned an erroneous conclusion.

On perusing the record of proceedings in the lower Court together with the judgment, I have taken note that the Appellant was put on

Page $6$ of $12$ record as PW1 and looking at his witness statement under paragraph 6-8, he states that he had been in possession for over 28 years since purchasing the suit Kibanja from the Late Gayira in 2000 and 1986 respectively.

However, there is no exhibited evidence on record to this effect save for the sales agreement that was attached on the Plaint but neither submitted/exhibited nor interpreted hence not considered as evidence by the lower Court.

As an attachment on the pleadings, I have sought for the facts in this agreement and realized that the Appellant bought from Gayira Samuel land with Kibanja interest at 200,000/= on the $28$ ^th of July 1986. Though it was not a point of contention in the lower Court, the Appellant's Counsel submitted extensively on adverse possession insinuating that the Appellant has been on the suit land undisturbed for a period of 12 years until 5^th July 2014 when the Respondent interrupted his possession.

Counsel for the Appellant further stated that the Nemo dat quod non 160 habet principle applied implying that whoever sold to the Respondent didn't have a right to do so as the land was already owned by the Appellant.

Counsel for the Respondent countered this and stated that Gayira was not in any position to transfer any ownership to the Appellant as 165 the land was in possession of a one Mega Memetereka in the 1980s the Grace and in $\Lambda$ turn Lumbuye $s$ old to who $in$ turn

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Defendant/Respondent purchased the suit land from Lumbuye Grace.

- Counsel also stated that the Respondent started paying busulo as 170 evidenced in the receipts on record and he was in possession. DW5 who is a grandson to the late Gayira and in his evidence in chief stated that he was responsible for caretaking his grandfather's property and on the list of bibanja holders, the Appellant was not on but the Respondent was. - 175

The trial Magistrate established that Mega Memetereka was the Kibanja owner of the suit land which belonged to Gayira. That she sold to Lumbuye in 1981; who sold to the Respondent in 2001 who has been in possession to date. There are land sale agreements on record to this effect that show systematic ownership of the land till the Respondent's purchase in 2001.

It was Counsel for the Respondent's submission that the chronological ownership of the suit land deters the Appellant from claiming the principle of adverse possession because ownership of the suit land has been consistent.

This argument and evidence relied on by the trial Magistrate would have been justified apart for the following reasons.

- 1. The owner landlord and owner of the disputed Kibanja was Gayira. - 190

2. The sale agreement between Mega Meemeterka and Grace Lumbuya has no description of the actual Kibanja, The usual

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practice is for a description of the Kibanja including the neighbors are included in the agreement. There is nothing that convinces the Court that this is the disputed Kibanja.

3. It was never disputed that the Appellant was in possession from 1986 to 2014. If the Respondent bought the disputed Kibanja in 2001, he never was in possession until 2014.

Court takes judicial notice that "Adverse Possession" is a recognized method of acquiring title to land, accomplished by an open, visible, and exclusive possession uninterruptedly for a set period of time. It is trite law that uninterrupted and uncontested possession of land for a specified period, hostile to the rights and interests of the true owner, is considered to be one of the legally recognized modes of acquisition of ownership of land (see Perry v. Clissold [1907] AC 73, at 79).

The essential elements of an adverse possession sufficient to create title to land by a claimant are; that the owner is ousted of possession and kept out uninterruptedly for the requisite period of time by an open, visible, and exclusive possession by the claimant, under a claim of right, with the intention of using the land as his own, and without the owner's consent.

However, in respect of unregistered land, the adverse possessor of land acquires ownership when the right of action to terminate the adverse possession expires, under the concept of "Extinctive Prescription" reflected in Sections 5 and 16 of The Limitation Act. (see:

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## Justice Mubiru in Akena Christopher & 9 others v Opwonya Noah Civil Appeal No. 35 of 2016.)

It is my finding that the disputed Kibanja belonged to the Appellant through adverse possession. He was in possession from 1986 to 2014. There is no evidence that the Respondent ever took possession in 2001 when he claimed to have bought the disputed Kibanja.

Extensively dealing with this ground implies dealing with ownership of the suit land to ascertain the Appellant's claim of adverse possession.

- It is not proof of ownership to identify previous owners of the Kibanja. 225 What is important is the actual possession of the Kibanja especially since adverse possession can extinguish another's equitable and legal rights of ownership. - It was in error for the trial Magistrate to conclude that the Appellant was a trespasser. I also noted that the report from the locus visit 230 indicates that the disputed Kibanja was almost one acre though Appellant was claiming that the suit Kibanja was approximately 3 acres. Since its unsurveyed land, the exact measurement cannot be ascertained. Therefore this should not be used against the Appellant. - I also noted that the Trail Magistrate rightly quoted this requirement 235 under Section 31(3) of the land Act cap 227 to the effect that a tenant by occupancy shall pay to the registered owner an annual nominal ground rent which shall with the approval of the Minister, be determined by the Board.

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- I also note that under Section 31(3) for purposes of this Section, 240 nominal ground rent shall mean reasonable ground rent-taking into consideration the circumstances of each case and in any case of a non-commercial nature. Unfortunately, this Court does not see how this is related to the issue of possession. - Therefore, I allow the Appeal in part and make the following orders. 245 - 1. Since the Appellant has been in possession for a considerable period of time, the Respondent should compensate him for any developments he had made. - 2. Each party bears their own costs in this Court and in the lower Court

I so order

Elizabeth Jane Alividza

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Judge

19^th June 2023

29/6/2023<br>Judgment posted on<br>Ecomis Mindzo

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