[2023] UGHCLD 70

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

#### CIVIL APPEAL NO. 52 OF 2019

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WAMALA BENON ....................................

#### **VERSUS**

#### MARGARET DORCUS KAYAGA ::::::::::::::::::::::::::::::::::

10 (*Administrator of the Estate of the late David Seruwu*)

(Appeal from the Judgment and Decree/Order of the Magistrate Grade one, Her Worship Susan Awidi, Luweero Chief Magistrate Court Delivered on 25^th April, 2019 arising from Civil Suit No. 083 of 2014)

#### Before: Lady Justice Alexandra Nkonge Rugadya

#### **JUDGMENT:**

#### Background to the appeal:

The appellant, Mr. Wamala Benon is a son of the late Gombya the registered proprietor of the suit land comprised in **Block 16, plot 8, land at Lukyamu, Bulemeezi.(suit land),** who claimed to have been born on the suit land in 1966 where he currently resides and has been deriving sustenance.

The respondent, Ms. Margaret Kayaga Dorcus is a widow of the late David Seruwu who had died in the course of the trial. Prior his death he had filed a suit in 2014, claiming to have bought 11 acres of land from the late Gombya who at the time was the registered owner of the suit land.

Pulous

In the amended plaint hled on OTth May, 2018, the deceased's name was substituted by that of hls widow, Margaret Kayaga Dorcas as "administrator" for purposes of completing the suit.

5 The claim under paragraph 4 of the plaint was for recovery of general damages for trespass onto his land situated at Lukyamu Bulemezi, comprised in Bulemezl Block 76 Plot 8; c declaration that the defendant is a trespasser to the plaintiffs suit land; compensation for all the destroyed plantation / trees; interest and costs of suit.

It was contended at the trial that at the filing of the suit, and at all material times, the suit land was registered to the late Andereya Edward Gombya since 3.3.1961. 10

During the trial the following issues were identified

## 7. Whether the ptaintill owns the dlsputed land?

2. Whether the defendant ls a trespasser on the srrlt land.?

## 3. What remedies are annilable to the partles?

In the judgment delivered on 25th April, 2019, the trial magistrate declared the respondent as lawful owner of the suit land measuring 11 acres comprised in Bulemeezl, Block 76 plot 8 ln Lukyannu vlllage, Kalagala sub countg, Luutero dlstrict; that the defendant was a trespasser on the suit land as described; general damages of Ugx STOOOTOOO/=; an order for vacant possession; an order to survey off 11 acres from the suit land; compensation; interest and costs to the plaintiff.

Dissatisfied with the decision of the trial court, the defendant filed this appeal, raising several grounds:

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- 1. That the trial Magistrate erred in fact and in law when she failed to hold that the respondent had no locus-standi to bring a suit of trespass to land against the appellant a registered owner and came to a wrong conclusion. - 2. That the trial magistrate erred in fact and law when she held that the appellant was a trespasser on the said suit land. - 3. That the trial magistrate erred in fact and in law when she held that the respondent's land was comprised in **Bulemezi Block 16 Plot 8 at** Lukyamu Village Kalagala Sub-county Luweero District. - 4. That the trial Magistrate erred in fact and in law when she entertained and decided on the issue of ownership of land and thereby came to a wrong conclusion. - 5. *That the trial magistrate erred in law and fact when she violated the "Parole"* evidence rule" and gave demarcations to land and originally having *demarcations thereby coming to a wrong decision.* - 6. That the trial magistrate erred in law and fact when she ignored all the 20 *evidence on record and the legal submission of the appellant's counsel and hence came to a wrong decision.* - 7. That the trial magistrate erred in fact and in law when she granted an order *of vacant possession against the appellant.* - 8. That the trial magistrate erred in fact and in law when she granted in favour of the respondent an order to survey 11 acres of land on the appellant's land comprised in **Bulemezi Block 16 Plot 8 at Lukyamu** - 30

9. *The trial magistrate erred in law and fact when she awarded the respondent* general damages, interest and costs.

The appellant's prayer was that the entire decision of the trial court be overturned; and for the costs to be awarded to him for both this court and in the 35 trial court.

Valoro

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Grounds 7 and 5 were however abandoned by the appellant, while grounds 3 and 4 were argued together. I will deal with thcse two first.

### Evaluqtion af the Euldence:

Issue No. 3: That the trlal m,aolstrate erred. in fact and ln law uhen she hetd that the respondent's land utas comprlsed in Bulemezl Block 76 Plot 8 at Lukuamu Villaqe Kalasola Sub- countu Luuteero District.

And:

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# Issue lVo. 4: That the trial Mdglstrate erred in Iact and. in lana uhen she enter-tained and decided on the issze of olanershi^D ^of land and therebu 10 came to a torong conclusion.

This being the first appeal, the court is required to subject the evidence to a fresh and exhaustive scrutiny and then draw its own conclusions, bearing in mind that it never observed the witnesses under cross-examination. (See.' Sczyu Luanga u Sam Galluanga SCCA No.48/7995), This court has the duty to reevaluate the evidence to avoid miscarriage of justice as it mindfully arrives at its own conclusion.

The law on trespass is well articulated in Justlne E,M. N. Lutadga as. Stlrllng Chdl Englneerlng Co. Cfiil Appeal No. 7 7 of 2OO2 /SC/ where it was held that the act of trespass occurs when a person makes an unauthorized entry upon land, and thereby interferes or portends to interfere with another person's lawful possession of that land.

It is also trite that such action can only be brought by a person in possession of the land. An action for the tort of trespass to land is for enforcement of possessory rights rather proprietary rights and an invasion affecting an interest in the exclusive possession of another's property. (Dina Domlnlc Poro as Inganl and. ApikuHCCA No. 77 oJ2OlQ.

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The fact of possession for purposes of an action in trespass to land is proved by evidence establishing physical control over the land by way of sufficient steps taken to deny others from accessing the 1and. Actual possession is established by evidence showing sufficient control, demonstrating both an intention to control and intention to exclude others.

The burden lies on the plaintiff to prove that the defendant illegally entered on to the suit land and that the facts as alleged by him/her are correct. He/she is deemed to discharge that burden if he adduces evidence sufficient to raise a mere presumption that what he asserts is true, enough to persuade court to rule in his/her favour.

But that burden may shift to the defendant, requiring him/hcr to adduce evidence sufficient to support a rebuttal of that presumption against him/her. (See also: S, 7O7, S. 7O2 and S. 7O3 oJ the Evld.ence Act Cap 6 and Itludllma & 5 Ors Vs. KaganJa & 2 Ors (C-kil sutt 232 of 2OO9) [2014] UGHCLD 34).

Counsel for the appellant in this appeal referred court to the decision \n Odgek Alex & Anor V. Gena Yokonanl & 4 Others C'htll Appeal No. OO9/2O77 whic):, considered an action for recovery of land as distinguished from an action for trespass to land.

On the strength of that authority coun sel implored this court to find that the action was inherently and essentially an action for recovery and not trespass to land. 20

That secondly, it was the duty of the trial court to establish whether the plaintiff had a cause of action against the defendant, which duty the court had failed to

discharge. 25

He noted that it should have been the administrators of the estate and not the defendant who should have been sued since the relief lies in specific performance.

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It was therefore wrong for the respondent to withdraw the suit against the said administrators. As such therefore the suit did not disclose a cause of action against the appellant.

In reply, counsel for respondent however maintained that this was not an action for recovery of land but rather an action for recovery of damages for trespass as shown in the plaint.

He refcrred to the case of Shcmlm Matovu and Sengendo Muhamrned (administrators of the estdte ol the late Nabakka HadtJa Vs Nerna.h Nlgah and. Anor Clvll Appeal No. 26 oJ 2079.

In that case, it was held by Justice Henry I. Kawesa that trespass to land is a continuous tort and the law of limitation does not apply to it. Learned counsel therefore rejected the assertion that the suit was time barred by sectdon 5 o3f the LlmltatTon Act. 10

I will consider the objections under two scparatc sub-titles:

- a) Whether or not the actlon uas statute-barred.; - b) Whether or not the appellant uas the rlght pdrtg to sue.

### Consideratlon o.f the lssues.'

a) Whether or not the actlon uas statute-barred:

Section 5 oJ the Lfrnito,tlon Act, Cap. 8O provides as follows:

"No actlon shcrll be bought by ang person to recoaer ang land alter the expiration ol tuelue gears from the date on uhich the right of action to him or her or. lf lt first dccrued to ^s whom he or she cloims to that persort". (ernphasls m;lne). 20

The overriding purpose is interest republicae ut sit finis lifum, meaning that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of the particular case. 25

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Thus once the axe falls it falls it fails, and the defendant who is fortunate enough to have acquired the beneht of the statutc of limitation is entitled to insist on his strict rights: (Muhannmad. B Kasasa as Jaspher Bagongo Slrasl Butogl, Clvll Appeal No, 42 oJ 2OO8; Hllton us Sulton Stea,m Laundry (1946) 7 I<B 67, at page 87.

The law is basically a defence, a shield but not a sword. It simply means the extinction of stated claims and rights of actions are limited in periods of time and once not pursued, they are lost since delay defeats equity. It is only the vigilant whom the equity helps to enforce their rights, not the indolent.

The Court of Appeal in its decision, URA as Uganda Consolld.qted. Propertg Ltd (1977- 2OOO ruled that time limits set by statutes were matters of substantive law and should be strictly complied with. 10

Counsel for the appellant in this case referred to the case of Mlramango vs Attorneg General [7979] HCB 24 whcre it was held that thc period of limitation begins to run as against the plaintiff from the time the cause of action accrued until when the suit is actually l-rled. As per secfton 6 oJ the Llmitatlon Act, the right of action is deemed to have accrued on the date of the dispossession. 15

The gist of his argument was that the respondent's claim was that they purchased the land on 23rd March, 1980 and therefore ought to have sought enforcement of the contract by 1992.

That a second time sca-le was that the late Seruwu got para-lysed in 1995 and it is claimed that this is when the appellant taking advantage of his immobility, had dispossessed the late Seruwu.

That in a third time scale it is alleged that in 1998 the appellant had chased away Wakabi who had been entrusted by the respondent to survey the 11 acres purchased by Seruwu from Gombya which led to the dispossession of the

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respondent's family. Accordingly, that if court were to take that as the truth, after the period of l2 years, the cause of action lor specific performance arose.

Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run, save where the plaintiff pleads grounds of exemption from limitation in accordance with ord.er 7 n e 6 of the CPR.

ln Cottar as. Attorneg General lor Kenga 193 AC P. 18 it was said by Sir Joseph Sherldan C'I as he then was that:

"What ls lmportdnt in consldering whether the cause of actlon ls reuealed. is bg the pleadings ls the questlon to uhat right has been ulolated, In additlon of course the plalnttJf rnust d.pped.r cr.s d person aggrleued bg the violatlon oJ hls rlght and the defendant as a person who ls llable.... If on the other hand ang oJ those essentlals is missing no cause oJ action has been shotan ..,....,..."

The general rule therefore applicable to all suits in which the claim is for possession of land, based on the title of ownership, ie proprietary title, as distinct from possessory rights is that no person shall bring any action to recover after the expiration of twelve years from the date on which the right of action accrued to him or her, or if it first accrued to some person through whom he or she claims, to that person. Sectlon 5(7) of the Lirnltatlon Act. 15

zo The trial court in the present case had to deal with the issue whether or not the action amounted to trespass or recovery of land, for such action to fall within the ambit of sectlon 5 of the Llnltatlon Act.

Counsel for the appellant's point as submitted was that in the case referred to earlier of Odgek Alex & Anor V. Gena Yokonani & 4 Others (supra) court clearly stated that it did not matter that the plaintiffs/ appellants names part of the action as trespass to land instead of recovery to land.

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The court will consider the essence of the action rather than the nomenclature adopted by the parties. Court ruled in that case that the essence of the claim was recovery of land in respect of which sectlon 5 of the Llnlta,tlon Act was applicable.

- 5 The Court of Appeal in a more recent (20221 decision: Re: Klusanuka Fredrlck Kakumutue as Edutard Klblrtge Ctutl Appeal llo. IVo, 272 of 2O77 had lo determine whether the 1st appellate judge had erred in holding that the action against the defendant was time barred. It declared that it is important to identify the date on which the computation of the limitation period commenced. - The plaintiff in that case claimed ownership of the suit land and sought ^a declaration to that effect. He also sought a permanent injunction restraining the defendant from trespassing on the suit land, general damages and costs of the suit. 10

It was the plaintiff's claim in that particular case that in March 2009 thc defendant had forcefully entered the suit land claimed its ownership and started trespassing on it by cultivating on it and cutting down the trees, despite the protests from the plaintiff. 15

Court cited the Supreme court cases of Justlne E. M. N. Lutaga vs Sterllng C-ltldt Englneet.f,ng comp@ng (supro) which deals directly with the tort of trespass. In the lead judgment of Justice Mulenga, JSC which the other justices concurred with, he stated the legal position about a right of action based on a continuous trespass to land, thus:

> " Where trespcss Ls continuous, the person ulth the right to sue may sublect to the lanu or limltatlon o.f actlons, exerclse the right tmmedlatelg aJter the trespcss commertces, or ang tlme during its contlnuance or dfter lt has end.ed..

Slmllarlg, subject to the la u on llmltatlon of actlons a person utho acqulres a cause oJ actlon ln respect oJ trespass to land, mag

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## prosecute that cquse o;f actlon after parting ulth possesslon of the la.nd' [Emphasls added].

Court ofAppeal thus arrived at the conclusion that based on the above decision which is still good law and binding under the doctrine of stare decisis, the argument that the Llmltatlon Act does not apply to the tort of trespass to land no longer holds any merit.

Notably, counsel"s efforts in that case to make a distinction between an action for recovery of land and an action of trespass to land for purposes of extricating the latter from the scope of application ol the Llmltatlon Act therefore did not yield any fruits.

The appellant's uncontroverted testimony in the present appeal is that the total area owned by the estate was 13.75 acres part of which the respondent was claiming.

That this is the area in which he was born in 1966, to the registered proprietor

the late Andereya Edward Gombya (his father); built his home and since resided, utilising it for sustenance through cultivation. 15

He maintained that as a person raised, and living on the suit he did not need permission from anybody to remain on the Iand (not in the least, the respondent who was not in possession of the suit land.

In his response to the above, the respondent relying on the evidence of four witnesses including herself argued that after the purchase was concluded in 1980, the respondent family had taken possession by cultivating and planting trees. 20

That however when her husband fell sick he had employed Jafaari and his wife who continued tilling the land; and that when a surveyor was sent to open up the boundaries he was chased away by the appellant who doubles as the area chairperson. 25

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As submitted for the appellant, these were three separate time scales, lrom 1980 when the agreement was made; 1995 when the deceased became paralysed and 1998 when the appellant chased the surveyor away.

5 Duly noted from the evidence on record, Gombya, the registered owner of the land passed on in 1984, four years after the agreement was purportedly signed. The appellant who testified as DutT and his two witnesses: his mother and brother disowned the said agreement but as ruled by the trial court did not lead any evidence to prove that it had been forged.

Whereas in poragraph 5 (c) and (d) of tl:,e amended plaint filed 7th May, 2018 there was sufficient reason that explained why Seruwu could not file the suit, there is nothing to explain why prior to that he had not secured the transfer/ mutation forms from Gombya when he was still alive after purchasing the legal interest in 198O. 10

Within the spirit of sectlon 5 oJ the Llrnltatlon Act as cited, the action first accrued to Seruwu in 1980. He became sick more than 15 years later. No explanation was given in the pleadings (amended suit) as to why they had to wait some thirty years after Gombya's death before hling the suit. 15

In total it took him a period of 34 years after purchasing the land to lodge the caveat on the suit land and soon thereafter file the suit in this court. Thus in alignment with the above principle and findings this action was time barred.

The trial court in error, chose to treat this action as one of trespass and did not take into consideration the aspect of limitation in her judgment delivered on 25th April, 2019.

Understandably, this was before the clarification made by the Court of Appeal in the case of Klwanuka Fredrlck, as cited earlier, on the application of sectdon 5 oJ the Lllrnlto,tlon Act which clarification is binding to this court. 25

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In the lead judgment delivered on 7th October, 2022 by JA Muzamiru Mutangula Kibeedi, the Court of Appeal declared that since the tort of trespass to land deals with possessory rights to land, an action for trespass to land falls squarely within the scope of actions to recover land, whose limitation period is prescribed by the Limitation Act. ln short therefore, the Act applies to actions in trespass to land.

Court declared in the above suit that if the trial magistrate had addressed her mind to these issues and evaluated her evidence sufficiently, she ought to have dismissed the case in accordance with Order 7 rule 7 7 oJ the Cirnl Procedure Rules since it was barred by law. That conclusion equally applies to the present 10 case.

It is trite that an illegality once brought to the attention of court cannot be sanctioned. It overrides all questions of pleadings, including admissions thereon. (Makula Intentatlonal Ltd as H, E Cqrdlnal Nsubuga & Anor CA No, 4 ol [1e82]HcB).

15 20 A suit which is barred by statute where the plaintiff as shown in this case, has not pleaded grounds of exemption from limitation in accordance with Order 7 r.6 C'lall Procedure Rules S.f 7I-I must be rejected and in that rcspect, this court is barred from granting a relief or remcdy. (See: Vlncent Rule Opio v. Attorneg General [7990 - 1992] I<ALR 68; Onesltoro Bamuwaylra & ² Others u. Attorneg General (1973) IICB 87; John Oltomong u. Mohammed oltnga [198s1 HcB 86).

In the cited case: .f(luranuka Fredrlck Kakumuhae as Edutard. Klblrige (supra) the main suit had been filed in 2O1O. The suit land was sold 22 years later after the right of action to sue accrued to the respondent/ plaintiff.

25 In the present suit, and in alignment with the above findings and principles from Purl's evidence the land was purchased by her late husband in 1980 as per PExhI sale agreement, and the family started to occupy and utilise the land soon thereafter. They neither had the land surveyed nor did not secure any

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transfer instruments in respect of the suit land from the registered proprietor when he was still alive.

Thus for more than 30 years the family of the respondent had sat on their rights woke up several years after the late Gombya's death to put up a claim against

5 his family (none of whom had been party to the agreement); and who after the purchase had remained in occupation unchallenged, even when the registered owner was still alive. Accordingly, sufficient steps were never taken by Seruwu's family to deny others from claiming the land.

After the appellant's family had continuously occupied the suit land for 12 years unchallenged, whether his original stay/possession was lawful or unlawful became irrelevant.

Section 76 of the said Act provides thus

## T6. Extlnctlon of tltle afier explratlon oJ perlod.

Subject to sectlons 8 and 29 of thts Act and subJect to the other prouisions thereoj, at the explration oJ the perlod prescrlbed bg this Act tor clng persoa to brlng an actlon to recoaer land lncludlng a redemptlon actlon, the title o;f that person to the land shall be extlngulshed.

Accordingly, at the time Seruwu commenced court action in 2Ol4 his title to the suit land had long been extinguished by operation oflaw and in law he no longer had any interest or estate in title in the suit land upon which to base the action. 20

The trial magistrate therefore erred in law when she proceeded to hear the suit which was statute barred. She ought to have dismissed it under Order 7 rule 77 ofthe CPR.

## Dld the plalntiff/ respond.ent sue the utronq parta?

On the second point of objection raised by counsel for the appellant that the respondent had sued the wrong party, I could not also agree more.

It was claimed by the respondent that the appellant is currently in possession and that the late Seruwu had left his workers, Jafaari (since then deceased) and his widow to utilize the land.

A copy of the special certificate of title DExh 2 indicates clearly that the first entry on the said certificate was made on 3rd March, 1961. The second entry was made in December, 2O15 in the names of the appellant and two of his siblings,

having been granted letters of administration over their father's estate on 28th June, 2015, vide AC IYo. O75 of 2014. (DExh 3). The two were not parties to the suit. 10

The estate property had been distributed arnong the beneliciaries in 2O18 by the said administrators, Deduced from the evidence at locus which was conducted by the trial court on 18th January,2019, what he obtained as his share was clearly not part of the suit land.

Court noted at that visit the existence of a piggery project with a pig sty on the suit land which belonged to Sebagala (Du3) and, Sendegeya, both brothers to the defendant; an incomplete permanent house/structure for Sebagala (Dut3) and Ssendegeya; and a pit latrine as well. The crops on the suit land including maize,

matooke and tomatoes all belonged to the two brothers, not to the appellant.

Put4, Ms Ruth Nkonge aged 74 years confirmed to court that the defendant has lived on his father's land since his birth. However, that his house was not on the 1l acres.

As correctly noted by counsel for the appellant, the sketch map attached to the locus proceedings did not even indicate which area on the suit land the appellant

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occupied or utilized, which therefore cast some doubt on court's evaluation on the possession and utilization of that land by the appellant.

The boundary marks as identified during the court visit were not derived from the document itself **DExh 1**. The 11 acres were never surveyed off at the time of

the purchase. $\mathsf{S}$

The late Seruwu could have filed the suit for specific performance within the four years prior to his (Gombya's death). He never did.

After Gombya's death, subject of course to the law on limitation, with the right documents, he could have sued the persons in occupation of the 11 acres and/or those to whom the suit land had been distributed.

After 2015, the right parties to sue was not the appellant in his individual capacity but the administrators of the estate of the late Gombya as the trustees, under whose names the estate had been registered and who as claimed had distributed the estate in 2018.

The learned trial magistrate therefore erred in fact and in law when she failed to 15 take into consideration her own findings at the *locus* which clearly showed that the appellant had no direct interest in the 11 acres save only as one of the administrators and trustees in the entire estate.

This appeal therefore succeeds. The appellant is awarded costs of this suit and of the court below.

Alexandra Nkonge Rugadya

Judge

20^th March, 2023

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