Miiro v Gambakubaana & Another (Civil Appeal 28 of 2022) [2023] UGHC 411 (8 August 2023)

THE REPUBLIC UGANDA

IN THE HIGH COURT OF UGANDA AT MASAKA

CIVIL APPEAL NO. 28 OF 2022)

(ARISING FROM CHIEF MAGISTRATES COURT OF MASAKA AT BUTENGA CIVIL SUIT NO. 11 OF 2018)

MIIRO MUHAMAD KIRONDE :::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS

VERSUS

1. NAMIREMBE GAMBAKUBAANA 2. TAMALE RICHARD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

*Before the Hon. Lady Justice Victoria N. N. Katamba*

BACKGROUND

The Appellant instituted Civil Suit No. 11 of 2018 against the Respondents for a declaration that they are trespassers on Block 49 Plot 38 land at Mbirizi village, Bigasa subcounty in Bukomansimbi District among other orders.

In their defence against the claim, the Respondents denied the Appellant’s claim. In their evidence, it emerged that it’s the 1st Respondent who claims a hereditary ownership of the Kibanja on the suit land and that the 2nd Respondent is her employee.

The trial Magistrate who heard the matter found for the Respondents that they were not trespassers as claimed by the Appellant but rather bona fide occupants whose tenure is well protected by the law, and she dismissed the Plaintiff’s/Appellant’s suit with costs.

The Plaintiff/Appellant was dissatisfied with the findings of the Learned Trial Magistrate and thus instituted the instant appeal.

Representation

The Appellant was represented by M/s Jacqueline Seguya & Co. Advocates

The Respondent was represented by M/s Xander Advocates

At institution of the Appeal, the Appellant raised five grounds of appeal to wit;

1. *The learned trial magistrate erred in law and fact when she adjudged the 1st Defendant as a bonafide occupant which defence was never pleaded and proved by the Defendant.* 2. *The Trial Magistrate erred in law and fact when she found that the 1st Defendant was owner of a kibanja on the suit land in clear admission by the Defendant that they have never paid Busuulu for the same and all their witnesses.* 3. *The Trial Magistrate erred in law and fact when she found that the 1st Defendant was the owner of a kibanja on the suit land despite clear evidence that their kibanja is on public land thus reaching a wrong conclusion.* 4. *The Trial Magistate erred in law and in fact when she ignored the evidence of the Plaintiff and his witnesses erroneously holding that their evidence was full of grave inconsistences which caused a miscarriage of justice.* 5. *The Trial Magistrate failed to properly evaluate the evidence on record as to the existence of a Kibanja as claimed by the 1st Defendant on the Plaintiff’s land thus came to a wrong conclusion.*

This matter came up for hearing on 20th February 2023 in the presence of counsel for the parties. The parties were directed to file and exchange written submissions (both electronic and hard copy) that had to be on the record of this court by 7th April 2023. Neither party’s submissions are on the above stated records of this court.

The above state of affairs notwithstanding, this court will deliberate on the merits of the grounds of appeal on the record.

DETERMINATION OF COURT

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions was as stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Tibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

*Ground one: The learned trial magistrate erred in law and fact when she adjudged the 1st Defendant a bonafide occupant which defence was never pleaded and proved by the Defendant.*

In their summary of evidence attached to the Respondent’s written statement of defence, the Respondents stated that the 1st Respondent inherited the suit kibanja from her father the Late Mawurisio Gambakubaana who bought it in 1993. Among their listed documents, the Respondents also disclosed a purchase agreement dated 10th January 1993 that they intended to rely on at the trial.

The Respondents pleadings therefore, demonstrate that they indeed intended by implication to defend the suit as persons who lawfully came into possession of the suit land.

In their evidence on record, the Respondents through their witness, Dw3, Kabuye Christopher an 83-year-old gospel preacher in the Anglican church tendered on the trial court record Exhibits DE3 and DE4 which are agreements dated 19/01/1977 and 10/01/1993 of Yokana Gava to Kabuye Christopher and Kabuye Christopher to Mawurisio Gambakubaana respectively.

The pleadings stated above and the evidence that was adduced at the hearing sufficiently demonstrated that the Respondents not only pleaded that they were bonafide occupants on the suit land but also that the 1st Respondent’s now deceased father, Mawulisio Gambakubaana, from who she inherited the suit Kibanja was a purchaser of the same from another bona fide purchaser and as such his interest is well protected by *S. 29 (5) of the Land Act Cap. 227 of 1998.*

In the premises, this main ground of appeal fails.

Having resolved the first ground in favor of the Respondents, it means that they are bona fide occupants and not trespassers.

The finding in the first and main ground of appeal, also disposes of the remaining grounds of appeal and as such I have not found it necessary to deliberate on them.

I will, however, briefly comment on grounds two and three. The Appellant contradicts himself when he states that the learned trial Magistrate erred when she found that the Respondents were bona fide occupants yet they admitted to not having paid Busuulu. This statement/ground of appeal, contradicts the third ground in which he refers to the suit land as being public land. Unless it was a mistake of the drafter, stating that the suit land is public land would ideally mean that the Appellant has no right to even complain against the nonpayment of the said Busuulu.

In conclusion the appeal hereby fails. I have noted that on the day fixed for hearing of this appeal, Counsel Alexander Lule from M/s Xander Advocates appeared and categorically stated on record that he was ready to proceed with the matter. This means that the Respondents incurred a cost to hire counsel to represent them in this appeal. I hereby award the Respondents costs of this appeal.

Orders:

1. The Judgment and orders of the trial court are hereby upheld.

2. An order issues dismissing the Appellant’s appeal.

3. The Respondents are awarded costs of this appeal.

Dated and delivered electronically this 8th day of August, 2023.

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VICTORIA NAKINTU NKWANGA KATAMBA

JUDGE