Lubega v Nanfuka (Civil Appeal 36 of 2023) [2024] UGHC 898 (1 October 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL N0.036 OF 2023

(Appeal from Makindye Chief Magistrate Civil Suit N0.024 of 2012)

LUBEGA VINCENT ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

NANFUKA REHEMA :::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT

*Introduction;*

*1. Lubega Vincent* herein after referred to as the Appellant brought this appeal against *Nanfuka Rehema* herein after referred to as the respondent appealing against the decision of Her Worship Basemera Sarah Anne, Chief Magistrate at Makindye Chief Magistrate Court in Civil Suit No.024 of 2012 delivered on the 16th day of January 2023, by which judgment was entered in favour of the Respondent (defendant in the lower court) against the appellant (plaintiff in the lower court) for orders that; the respondent/defendant found to be a bonafide and lawful owner of

the unregistered land(Kibanja) together with all the developments thereon situated at Buligwanga Zone, Makindye Division, Kampala District, that the respondent's/defendant acts do not constitute trespass, a permanent injunction issued restraining the plaintiff/appellant and his agents from trespassing, wasting, alienating, damaging, selling and developing the suit property and costs of the suit awarded to the respondent/defendant.

*Background;*

- 2. In the lower court, the appellant sued the respondent for action of recovery of land and that the appellant/plaintiff is a bonafide and lawful owner of the unregistered land (Kibanja) and the developments thereon situate at Buligwanga zone, Makindye division, Kampala District, a permanent injunction restraining the respondent/defendant and her agents/servants, employees and any other person claiming under her from any further trespass over the plaintiff's Kibanja, general damages and costs of the suit. - 3. Briefly, the appellant's case was that he is the lawful and bonafide owner of the suit property having purchased the same in the year 1973 and took vacant possession of the same till present and that some time in 2011, the defendant without any color of right

whatsoever entered upon the plaintiff's suit property in company of some other people claiming to be authorized by local council of the area and fenced off the suit property.

- 4. The respondent's case was that the appellant/plaintiff bought a small piece of a Kibanja in 1973 behind the respondent's/defendant's Kibanja without an access road and the said Kibanja that was purchased by the appellant was being used as a rubbish dumping ground by the neighbors within the area. - 5. Its on that effect that the appellant filed Civil Suit No.024 of 2012 for declarations that the plaintiff is a bonafide and lawful owner of the unregistered land(Kibanja) together with all the developments thereon situated at Buligwanga Zone, Makindye Division. - 6. The trial magistrate entered judgement for the respondent and awarded the reliefs mentioned earlier. - 7. Being dissatisfied with that decision, the appellants appealed on the following grounds, namely; - i) That the learned trial magistrate erred in law and fact when she failed to evaluate the evidence before her and thereby declaring the respondent the owner of the Kibanja.

- ii) The learned trial magistrate erred in law and fact when she considered evidence from people who were not witnesses in court at the locus in quo thereby occasioning a miscarriage of justice. - iii) The learned trial magistrate erred in law and fact when she failed to evaluate the evidence before her and instead based her judgement on the illegal findings of the LC1 Court. - iv) The learned trial magistrate erred in law and fact when she awarded damages of Ughs 5,000,000(five million Ugandan shillings) to the respondent without any justification.

*Representation;*

8. At the hearing of the appeal, the appellant was represented by Counsel Mubiru Shafiq Musa of M/s Abdallah Kiwanuka Associated Advocates while the respondent was represented by Counsel Kenneth Kajeke and Patrick Furah of M/S Kajeeke Maguru & Co. Advocates. Parties proceeded by way of written submissions and only the appellant filed submissions in support of the appeal, the respondent did not file submissions opposing the appeal despite being present in court when directions were issued on when to file submissions to both parties.

9. In arguing the appeal, counsel for the appellant addressed all the four grounds separately.

*Duty of the appellate court;*

- 10. This being a first appeal, this court is under an obligation to rehear the case by subjecting the evidence presented to the court below to a fresh scrutiny and re-appraisal before coming to its own conclusion. *(See*; *Nanensio Begumisa and three Others vs Eric Tiberaga SCCA 17 of 2000)* - 11. It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the 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 nature of this duty was put more appropriately in Selle vs Associated Motor Boat Co. [1968] EA 123. - 12. An appeal is by way of retrial and the principles upon which this Court acts in such an appeal are well settled, briefly put they are; *that this Court must reconsider the evidence, evaluate it*

*itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect*.

13. In particular this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. *(See; Abdul Hameed Saif*

*Vs Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)*

*Power of the appellate court;*

14. Section 80(i) of the Civil Procedure Act Cap.71 grants the high court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate court shall have the power to determine a case finally. The appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the act on courts of original jurisdiction in respect of suits instituted in it.

*Submissions by counsel for the appellant;*

- 15. While arguing ground 1, counsel for the appellant submitted that the trial court abdicated its duty when it failed to ascertain the issue of ownership of the suit land despite the evidence presented to it and that if the trial court had clearly evaluated the evidence it wouldn't have reached a wrong conclusion that the Kibanja belonged to the respondent since the main issue in question was not whether the respondent owned a kibanja but whether she exceeded the part that she rightly claimed and encroached on the appellant's Kibanja. - 16. Counsel for the applicant submitted that the trial court failed to pay attention to PEX1 which is actually a sale agreement of the appellant that a clear description of the boundaries of the land and it was clear how the appellant's land stretched up to Lubiri Ring road which fact was not established at the locus visit as it was found out that the respondent had constructed a building on the appellant's upper part of the land thereby leaving a very small foot path for the respondent something that conflicted the boundaries mentioned in the appellant's sale agreement.

17. Counsel further submitted that the trial court failed in its duty of evaluation of evidence when it only considered the respondent's DEX1 which also did not provide any measurements to declare that the entire kibanja belonged to the respondent and that since the dispute before court was about the respondent's encroachment on the appellant's kibanja when she exceeded the part that she was given and built on the entire upper part blocking the appellant from accessing the main lubiri ring road despite the boundaries mentioned in PEX1

Analysis by court;

- 18. The trial magistrate in determining whether the appellant was the right full owner of the suit kibanja or not, she rightly stated that the sale Agreement admitted as PEX1 on court record did not have specific measurements for the plaintiff's kibanja and none of the appellant's witnesses testified as to the measurements of the said kibanja and it was DW3 who testified as to the measurements of the respondent's kibanja which evidence was never disputed by the appellant. - 19. During the hearing at page 22 of the record of proceeding, DW2 testified that the respondent was a resident on the plot in issue

and that the suit land belongs to the respondent. Further DW3 in his testimony at page 24 of the record of proceedings testified that the appellant's land was neighboring the respondent's land and that he knows about the portion of the suit land that brought both the appellant and respondent to court and the appellant has two containers on the said portion. All this evidence was never disputed by the appellant during trial.

- 20. Further during trial, the respondent tendered in KCCA property rates marked as DEX2 and the tenant registration form from the Buganda Land board marked as DEX3 all addressed to the respondent as the owner of the suit land, all this evidence was never disputed by the appellant. - 21. I am of the view that the appellant/plaintiff at trial was the party who desired court to give a judgement as to the existence of the legal right of ownership of the said kibanja, therefore he had the burden to prove that indeed he was the owner of the said kibanja and the evidentiary burden lied upon him. - 22. It appears to me that the plaintiff failed to prove his case as required by the laws of evidence and this left the trial magistrate

with no option but to rule that the suit kibanja belonged to the respondent, therefore ground 1 is resolved in the negative.

Ground 2;

- 23. In arguing ground 2, counsel for the appellant submitted that the trial court is faulted in conducting the locus visit in an illegal manner and contrary to the practice directions where by court allowed individuals who did not testify in court to give evidence at locus and the trial magistrate in her judgement, she considered the same evidence. - 24. Counsel for the appellant draws reference to the record of appeal under the trial court's judgement on page 4 paragraph 3 where the court noted that "……………. furthermore at locus the whole village including the area LC1 Chairperson confirmed to court that the land belonged to the defendant….." - 25. It was the submission of counsel for the appellant that Locus visits are provided for under the practice direction on the issue of orders relating to registered land which affect or impact on tenants by occupancy, practice direction No.1 of 2007 and guideline 3 of the said direction provides as Follows on visits to locus in quo;

during the hearing of land disputes the court should take interest in visiting the locus in quo while there;

- a) ensure that all parties, their witnesses, and advocates (if any) are present. - b) Allow the parties and their witnesses to adduce evidence at the locus in quo. - c) Allow cross-examination by either party or her counsel. - d) Record all the proceedings at the locus in quo. - e) Record any observation, view, opinion or conclusion of the court including drawing a sketch plan, if necessary". - 26. Counsel further submitted that guidelines 3(a),(b) and (c) would appear to provide for persons that have already testified at trial to substantiate their evidence at locus in quo and be subjected to cross examination, the same principle was states in Yeseri Waibi vs Elisa Lusi Byandala(1982)HCB 28 where court held that the usual practice of visits to locus in quo was to check on the evidence given by witnesses and that the trial judge or magistrate should make a note of what takes place at the locus in quo and if a witness points out any place or demonstrates any movement to the court,

then the witness should be recalled by the court and give evidence of what occurred.

27. The fact that the trial court allowed several unknown individuals to give evidence at locus disorganized the entire proceedings at locus and the fact that the trial court based its decision on such individuals under the term whole village occasioned a miscarriage of justice and made the court reach a wrong conclusion for which we invite court to find in favor of the appellant.

Analysis by court;

- 28. I take note of the provisions of the law and cases relied upon by counsel for the appellant while arguing this ground. - 29. Counsel for the appellant alleges that the trial magistrate based her decision on the evidence given at locus by parties who did not testify in court and that the trial magistrate erroneously arrived at a wrong decision. - 30. I will draw reference to the specific paragraph from the judgment of the trial magistrate at page 13 of the record of proceedings where she stated that *"further more at locus, the whole village including the area LC1 chairperson confirmed*

*to court that the land belonged to the defendant/respondent not the appellant/plaintiff"*

- 31. The reading of the entire decision indicates that the trial magistrate did not solely rely on the locus proceedings to reach to a finding that the suit land belonged to the respondent. The trial magistrate in determining the issue as to whether the suit land belonged to the appellant or not, she considered a series of overwhelming evidence to include the testimonies of the witnesses during trial and the documentary evidence adduced by the parties and marked as exhibits. - 32. Even if this court was to rule out the proceedings at locus, it would not substantially affect the trial magistrate findings since she based and relied on other factors to establish ownership of the said Kibanja and not only what was said during the locus visit. - 33. This court finds no persuading reason to interfere with the findings of the trial magistrate, therefore the second ground is resolved in the negative.

Ground 3;

34. In arguing ground 3 of the appeal; counsel for the appellant submitted that the trial court further failed to evaluate the evidence but instead based its findings on the decision of the LC1 court when it ruled that the respondent was the owner of the suit Kibanja, the trial court failed to understand the nature of the appellant's claim in trial court as the same was not disputing the fact that the respondent did not have a Kibanja but rather she encroached on the appellant's part.

35. Counsel further submitted that the LC1 court did not have jurisdiction to handle the matter and in the decision of Mugoya Vs Gidudu & Anor(supra) it was held that "..a judgment of court without jurisdiction is a nullity, the order which follow such a judgment must be set aside……."

Analysis by court;

- 36. As to whether the trial magistrate based her findings on the decision of the LC1 court to reach to a decision that the respondent was the owner of the said kibanja or not? - 37. The trial magistrate in her judgement at page 12 of the record of proceedings stated that "further more this matter was determined by the LC1 chairperson and the same matter was determined by the RCC who confirmed the findings of the LC1 court.."

- 38. The said paragraph was made in the resolution of issue 1 at trial as she was analyzing different factors as regards to ownership of land, with the current land wrangles across the country, it would be prudent for a judicial officer to study different factors concerning the said land before reaching a decision but the same judicial officer should have it in mind that some information is persuasive and the other binding onto him or her. - 39. The trial magistrate did not base her findings on the decision of the LC1 court but rather she referred to the said decision in her judgement. - 40. I find counsel for the appellant allegations that the trial magistrate based her decision on the findings of the LC1 court therefore reaching an erroneous decision misplaced, ground 3 is hereby resolved in the negative.

Ground 4;

41. Counsel submitted that the trial court awarded the respondent damages of Ughs 5,000,000 despite the fact that from the time the suit was filed to the date of the court decision, the respondent and her agents were the ones in possession of the suit land and during the pendency of the suit, the respondent had sold the suit land to a 3rd party and that the trial magistrate did not give any basis for the award of the damages to the respondent who was actually in possession and using the land.

- 42. There was interference from the appellant as in this case it was the respondent who encroached on the appellant's land and therefore the award in our considered opinion was not justified and this court should set it a side - 43. As to the award of general damages, the trial magistrate in her judgement at page 15 of the record of proceedings stated that the *"consideration should be mainly the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of breach, in the result the defendant/respondent is entitled to an award of Ugshs. 5,000,000 given the current value of the suit land"* - *44.* It is a principle of law that the appellate court will not interfere with the award of damages by a trial court unless it is satisfied that the award was based on wrong principles or that the amount awarded was so high or so low to make it an erroneous estimate of the damage. *(See; Joy Trail vs Henry Mitford Bowker (1947)* - *EACA)*

- 45. This court as the appellate court in this matter does not find any reasons to interfere with the award of general damages since the trial magistrate justified the same and this court does not find the said sum to be so high or so low in. therefore, ground 4 is resolved in the negative. - 46. In the result, the instant appeal fails and the same is hereby dismissed by this court with no orders as to costs.

I SO ORDER.

NALUZZE AISHA BATALA

Ag. JUDGE

1 st/10/2024

Delivered on the 1st of October,2024 electronically via ECCMIS.