Bangi v Mutyabule (Civil Appeal 119 of 2016) [2024] UGHC 573 (21 June 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT JINJA

HCT-03-CV-CA-0119-2016

(ARISING FROM CIVIL SUIT NO.025 OF 2005)

BANGI ROBERT::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

MUTYABULE CHARLES:::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

Land Appeal

Held: All Grounds of Appeal FAIL. The decision/Judgment of Her Worship Angura Sheila Fiona Magistrate Grade One of the Chief Magistrate’s Court of Kamuli, delivered on the 16^th of September 2016 is upheld in its entirety.

BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE

JUDGMENT ON APPEAL

The Appellant being dissatisfied and aggrieved by the decision/Judgment of Her Worship Angura Sheila Fiona Magistrate Grade One of the Chief Magistrate’s Court of Kamuli, delivered on the 16^th of September 2016, appealed to this Honorable Court against the whole decision/Judgment and orders on the following grounds that the learned trial Magistrate erred in law and fact when :-

1. She held that the Respondent is not a trespasser on the suit land.

2. She failed to properly evaluate the evidence on the record, thereby arriving at the wrong conclusion that the suit land belongs to the respondent.

He prayed that:-

1. The Appeal be allowed.

2. The decision of the trial court be set aside.

3. Costs be provided for.

REPRESENTATION

When this matter came before me for hearing, the Appellant was represented by learned Counsel Mr. John Isabirye of M/S. Isabirye & Co. Advocates, while the Respondent was represented by learned Counsel Miss. Kevin Amujong of M/S. Okalang Law Chambers Advocates and Legal Consultants. Both sides were directed by Court to file Written Submissions and they each complied.

BACKGROUND

The brief facts according to learned counsel for the Appellant is that the Appellant's claim against the Respondent is for a declaration that he is a lawful occupant of land at Bwiiza village, Namasagali Sub County, in Kamuli district, Permanent injunction, and order for compensation of his destroyed crops, general damages and costs of the suit.

The Appellant's claim also is that he got the suit land as a gift inter vivos from his father Kintu William in 1990 before he passed away in 1998. The Appellant upon getting the land from his father, he started to utilize the same land by doing various actions thereon including grazing cattle and planting crops like maize, millet and cassava.

The Defendant filed a defence where he averred that the suit land was sold to Yasin Kaminsi who is the registered proprietor of the land after the land title was issued in the names of Haji Yasin Kaminsi and the land was sold to Annesworth Guest House Ltd where the defendant is the director.

The trial magistrate entered Judgment against the Appellant that the suit land belonged to Haji Yasin Kaminsi who is the registered proprietor and it is from this that the Respondent derives equitable interests and therefore he is not a trespasser he instituted this Appeal.

On the other hand, the background according to learned Counsel for the Respondents is that the Appellant filed Civil Suit No.0025 of 2005 against the Respondent for a declaration that he is the lawful occupant of land located in Bwiiza Village, Namasagali, Kamuli District; an injunction; order for compensation and costs of the suit.

The Respondent filed a defence wherein he clearly averred that the suit land was sold to Yasini Khamisi by Erusana Igoola; and thereafter a land title was issued in the names of Haji Yasini Khamisi. That the land was sold to Anneworth Guest House Ltd. in 1987 by Haji Yasini Khamisi, and the said Company to which the defendant is a director has been in effective use and occupation of the suit land. That the suit land is situate in Malyagula Village and not Bwiza village as alleged by the Appellant and that the suit is time barred.

In support of his case the Appellant presented six witnesses inclusive of himself and a Will, Powers of Attorney, Title Deed, Statutory Notice and a Receipt from Posta-Uganda Advert.

The Defendant on the other hand presented three (3) witnesses inclusive of himself and the Certificate of Incorporation of Annesworth Guest House Ltd, Sale Agreement between the Company and Haji Yasin Kaminsi, a copy of the title deed in the name of Haji Yasin Kaminsi and signed Transfer Form.

Court visited the locus and the Trial Magistrate believed the Respondent and his witnesses as against the Appellant and his witnesses and dismissed the suit with Costs; thus this appeal.

From my own analysis, the Plaintiff’s case is that the Plaintiff/Appellant filed Civil Suit No.025 of 2005 in the Land Tribunal at Kamuli seeking:-

1. A declaration that he is a lawful occupant of land in the village of Bwiiza village Namasagali, Kamuli District.

2. An injunction restraining the Respondent and/or his agents from evicting the claimant from the suit land.

3. An order that the respondent compensates the claimant for his crops.

4. Damages and costs of the claim.

The facts of the Plaintiff/Appellants claim were that he obtained the suit land, a kibanja in 1990 from his father William Kintu (deceased); and has since that time utilized it for cultivations and grazing. The suit land is situated at the said Bwiiza village, and it borders with Claimant's other land in the North, in the East with Ojinga Ofuwa, West with Lugangamairu swamp whilst in the South with Yunusu Mugulusi. The land is approximately 50 acres. That in 1995 or thereabout the Respondent and /or his agents, servants employees entered on the suit land blocked the claimant from using it and even threatened to evict him.

Following, the said entry on the suit land, the Respondent and/or his agents destroyed his crops i.e. 1 ½ acres of maize, l acre of millet and stopped him from grazing the land. That by virtue of himself having occupied the suit land for a long time, utilizing the same for cultivation of crops and cattle grazing, he is therefore a lawful occupant whose interest is provided for and protected under the law.

Further, that his interest is not affected by any alleged recent acquisition of a leasehold interest on the suit land by the Respondent if any at all. That the Respondent acted in a highhanded manner towards the Plaintiff/Appellant over the suit land which caused him mental anguish and suffering and thus shall seek general damages.

Defendant’s case

In reply, the Defendant/Respondent contended in their WSD that the suit land was sold to Yasin Khamisi by Erusana Igóola to whom a land title was issued on 8/8/1980 (Copy of which is attached hereto and marked as annexture "A").

Further, that on the 19/12/1982, the said Yasini Khamisi and Erusana Igoola confirmed the said sale transaction and executed an agreement witnessed by several people. (A copy of which is hereto attached as Annexture "B").

That he bought the suit land from Yasini Khamisi in 1985; and has since been in occupation of the same by which consequence the Plaintiff/Appellant claim is time-barred. (Annexture "C" attached hereto).

THE LAW

It is now settled law that it is the duty of the Plaintiff to prove his or her case on the balance of probabilities. In relation to the onus of proof in civil matters, the burden of proof lies on he who alleges a fact and the standard is on the balance of probabilities, and not beyond reasonable doubt as in criminal case. It is provided for in Sections 101, 102, and 104 Evidence Act and is discharged on the balance of probabilities. The standard of proof is made if the preposition is more likely to be true than not true.

The standard of proof is satisfied if there is greater than 50% that the preposition is true and not 100%. As per Lord Denning in Miller v Minister of Pension [1947] ALLER 373; he simply described it as ‘more probable than not.” This means that errors, omission and irregularities that do not occasion a miscarriage of justice are too minor to prompt the appellate court to overturn a lower court decision. See Festo Androa & Anor vs Uganda SCCA 1/1998.

It is also the position of the law that in the proof of cases, unless it is required by law, no particular form of evidence (documentary or oral) is required and no particular number of witnesses is required to prove a fact or evidence as per Section 58 Evidence Act and Section 33 Evidence Act. A fact under evidence Act means and includes -

1. Anything, state of thing, or relation of thing capable of being perceived by senses as per Section 2 1(e) (i) Evidence Act.

On the duty of the first appellant court, the first appellate Court is mandated to subject the proceedings and Judgment of the lower Court to fresh scrutiny and if necessary make its own findings. Bogere Charles vs Uganda, Criminal Appeal No. 10 of 1996, where Supreme Court held that:-

“The appellant is entitled to have the first appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate Court has a duty to rehear the case and reconsider the materials before the trial Judge. Thereafter, the first appellate Court must make its own conclusion, but bearing in mind the fact that it did not see the witnesses. If the question turns on demeanor and manner of witnesses, the first appellate Court must be guided by the trial Judge's impression.”

This being the first appellant court, it is duty bound to evaluate evidence and arrive on its own conclusion, bearing in mind that it did not have benefit of the observing the demeanor of the witnesses. The duty of the first appellate court is to re-evaluate, assess and scrutinize the evidence on the record. This duty was well stated in Selle vs. Associated Motor Boat Co. [1968] E.A 123and followed in Sanyu Lwanga Musoke vs. Galiwango, S.C Civ. Appeal No.48 of 1995; Banco Arabe Espanol vs. Bank of Uganda S.C.C. Appeal No.8 of 1998.

A failure to re-evaluate the evidence of the lower court record is an error in law. The appellate court has a duty to re-evaluate the evidence as a whole and subject to a fresh scrutiny and reach its own conclusions. See Muwonge Peter vs Musonge Moses Musa CACA 77; Charles Bitwire vs Uganda SCCA 23/95; Kifamunte Henry vs Uganda SCCA No. 10/1997.

It is also trite law that the appellate court can only interfere and alter the findings of the trial court in instances where misdirection to law or fact or an error by the lower court goes to the root of the matter and occasioned a miscarriage of justice. See Kifamunte Henry vs Uganda SCCA No. 10/1997.

Having satisfied myself and taken due recognition of the Law and rules of evidence applicable to a first appellate court, I will now turn to the substantive matters as raised in the Memorandum of Appeal and proceed to re-evaluate the evidence on record.

RESOLUTION OF GROUNDS OF THE APPEAL

Ground 2: That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on the record thereby arriving at the wrong conclusion that the suit land belongs to the Respondent.

Learned counsel for the Appellants argued the 2^nd ground of Appeal first. They submitted that the learned Trial Magistrate at page 5, 6 and 7 evaluated the evidence which was the basis for her judgment that the suit land belonged to the defendant; and this is what she stated from the 3^rd last line of page 5 of her judgment;

"Evaluation

Is the evidence of Pw1 that he acquired land from his fore father who gave to Munyegera then to Kamara who also passed to his father Kintu only finally to him at age of 14 approximately and he took possession of the suit land around 1990; however, there was no documentary evidence presented to support the evidence of plaintiff on handing over the suit land to him.

The plaintiff was relying on the will which was testified by DW3 as author and he only mentioned 2 pieces of land which was bequeathed to the plaintiff by the father and in cross examination plaintiff testified that he was the only child and everything in the will belonged to him alone court wonders what happened to father bequeath only 2 pieces of land and leave out the other vast not given out.

In cross-examination by counsel of the defendant PWI also confirmed that he had no idea that the suit land had a title therefore to him it was a forged title. However, its trite law that a certificate of title id conclusive evidence unless exhibited such evidence leaving certificate of title unquestioned.

It's also noted that none of the witness where present when the land was handed over to the Plaintiff and was also confirmed by PW2 who is LC1 Chairman and had no idea when the Plaintiff started using the land.

The rule on hearsay is very clear that hearsay evidence is not admissible simply because the truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination and the light which his demeanor would throw or his testimony is lost per case of Teper V Reginam (1952)2 all 447 at 449

WILL

Its evidence of PW3 that he wrote the will which gave the plaintiff the suit land and this was confirmed by PW2 who kept and read the will at funeral and however at cross-examination, the PW2 confirmed to the court that the will was not signed by William Kintu and he doesn't know why and in law specifically Succession Act the will is valid upon the signing of the author or the owner as per section 50 S.A therefore this leaves the doubt to the court as genuinely of the said document.

Besides, Section 59 of RTA Cap 230 states that possession of a certificate of title by a registered proprietor is a conclusive evidence of ownership of the land and registered proprietor is protected against an action of ejectment except on grounds of fraud as per sec 176 (c) RTA.

The defendant's evidence is, he bought the suit land from one Yasin Kaminisi who is the registered proprietor and upon purchase they both signed the instrument of transfer of land and this said transfer was not concluded, however, it's on that basis that the defendant derives his equitable interest on the suit land."

They submitted that from the above passage, it is clear that the decision of the Learned Trial Magistrate was informed by the following;

1. That there was no documentary evidence presented to support the evidence of the plaintiff on handling over the said land to him. (In line 2 and 3 of page 6 of the judgment).

2. The Learned Trial Magistrate disregarded the Will for being unsigned by the testator, but went ahead to use its content in her judgment.

3. The Learned Trial Magistrate used the existence of a Certificate of Title to discredit the plaintiff's ownership of the suit land.

4. The Learned Trial Magistrate misapplied sections 59 and 176 (c) of the RTA to the case.

5. The Learned Trial Magistrate misconstrued the evidence of locus and did not follow the procedure to be adopted at locus in quo proceedings.

6. The Learned Trial Magistrate did not pronounce herself on departure from pleadings by the defendant.

They expounded on the above misdirection’s by the Learned Trial Magistrate; and submitted that at page 6 line 2 and 3 of the Judgment, the Learned Trial Magistrate while evaluating the evidence on record indicated as a reason for disbelieving the Plaintiff that there was no documentary evidence presented to support the Plaintiff's case that the suit land was handed over to him.

That with the greatest respect, they submit that this was a gross misdirection on behalf of the Learned Trial Magistrate both in law and in fact because there is no legal requirement that every fact must be proved by documentary evidence.

That under section 58 and 59 of the Evidence Act, facts can be proved by oral evidence. The evidence on record clearly shows that oral evidence was led to prove that the Plaintiff was indeed gifted the suit land. That the evidence of PW1, PW2, PW3 and PW4 is clear on this point. The evidence of PW1 appears at page 4 to 6 of the record of proceedings; and of great interest are lines 18-20 of page 5 of the record of proceedings where PW1 Bangi Robert, the plaintiff stated in examination in chief as follows;

"I got this land through inheritance. Its land of my fore fathers of Baise Igulu clan. Munyegera passed it to my father Kintu and in 1990 Kintu passed it over to me”.

In cross-examination at page 5 line 3-39, Bangi Robert the plaintiff said;

"I took over the land in 1990. I don't remember how old I was. But around 14 years. My father Kintu William died in 1998. I was the only child of my father. My father gave me the land in 1990 saying he was growing old. Later, when he died, he indicated in the Will that whatever was his was mine alone. The clan read out the will and handed over properties to me including land. In 1990, whoever wanted to rent the land could come to me. By the time he died, the land was in my hands."

That at page 5 lines 3-8, the plaintiff (PW1) testified that the Respondent/ Defendant in the year 1995 trespassed on his (plaintiff's) land at Bugulu Bwiza with 9 other people and they destroyed the plaintiff's crops. The plaintiff (PW1) by the above evidence clearly shows that upon being given the land in 1990, he started using it and by 1995 when the Respondent/ Defendant trespassed on the suit land, the plaintiff /Appellant was in active possession.

They further submitted that the testimony of PW1 clearly proves that the suit land was given to him as a gift inter vivos by his father. That for a gift inter vivos to be valid, it must be proved to have three elements;

1. Manifestation of willingness to give on.

2. Acceptance of the person given.

3. The donor should ensure that the person given takes control of the property.

That the above grounds were stated in Civil Appeal No 13 of 2019: Nabushawo Margaret & O’rs vs Kageye Florence and also Norah Nassozi & Anor vs George William Kalule Civil Appeal No. 5 of 2012.

That from the testimony of PW1, it is clear that all those elements are proved as the Appellant took over control and possession of the suit land in 1990 even when the donor (Kintu) his father was still alive.

Further, that the evidence of PW1 was not defendant/Respondent during Cross examination PW2 Benon Namanya's testimony appears at pages 7-8, 13-14 of the Record of proceedings land controverted by PW2 testified at page 8 of the record that the suit land belonged to the Appellant who had been in possession since 1990. That the plaintiff and other unknown individuals encroached on the plaintiff's/ Plaintiff's land.

That the encroachers destroyed the Appellant's crops and PW2 and the area LC.1 Chairman gave the plaintiff's a forwarding letter since in his view the matter was too big for him; so he gave the plaintiff a forwarding letter to the LC.III Chairperson for assistance. That PW5 Janmila Hassin's testimony appears at page 19-18 of the record. She testified that she is a daughter to Hasin Kaminsi the registered owner of the land on which the suit kibanja is. She told court that she know the plaintiff as a squatter on the land.

Further, that the Learned Trial Magistrate at Page 6 line 4-8 stated that; the Plaintiff was relying on the will which was testified by DW3 as author and he only mentioned two (2) pieces of land which was bequeathed to the plaintiff by the father and in cross examination, plaintiff testified that he was the only child and everything in the Court wondered what happened to the father to bequeath only 2 pieces of land and leave out the other vast piece not given. They faulted the Learned Trial Magistrate with this evaluation and finding.

First of all, having thrown out the Will as not having been signed by the testator, the Learned Trial Magistrate could not use it as a basis of discrediting the testimony of the plaintiff (PW1) because it ceased to be part of the record. The Will belonged to him alone. Most importantly, that the Learned Trial Magistrate still misdirected herself when she/ court wondered what happened to father bequeathing only two (2) the suit pieces of land and leave out the other vast piece not given out reefing land.

They argued that it is the position of the law that what does not belong to the testator cannot be validly put in the will; so even if the will had been valid, it was proper not to include that vast piece of land in the will because it had already been given out by the Appellant's father Kintu as a gift inter vivos to his son Bangi Robert, the Appellant.

That while evaluating the evidence, the Learned Trial Magistrate wrongly evaluated the evidence by misapplying section 59 and 176 (c) of the RTA to the case. That at page 6 second last paragraph n of the judgment, the Learned Trial Magistrate stated that:-

“…besides, section 59 of the RTA Cap. 230 states that possession of a certificate of title by a registered proprietor is conclusive evidence of ownership of the land and the registered proprietor is, protected against an action of ejectment except t on grounds of fraud per section 176 (c) of the RTA.

She further stated l i in the next paragraph that the defendant's evidence is he bought the suit land from Yasin Kaminsi who is the registered proprietor and upon purchase the both signed the instrument of transfer of land and this said transfer was not concluded, however, it's on that basis that the defendant derivers his equitable interest on the land".

That the above analysis is not only flawed in law but also in fact.

That Section 59 and 176 (c) of the RTA only protects registered proprietor and the defendant /Respondent was admittedly not a registered proprietor. That the Appellant/ Plaintiff had not brought the suit land under section 59 and 176 (c) of the RTA for impeachment of title because as stated in his testimony PW1, the plaintiff did not even know that the Defendant had a title but even if he did, he (defendant) was not the Registered proprietor to be under the contemplation of the section 59 and 176 (c) of the Act.

The Appellant brought his action for declaration that he is the lawful owner of the suit Kibanja and for orders restraining the Respondent/Defendant from evicting. That the Learned Trial Magistrate therefore misdirected herself in as far as she wrongly applied the legal principles under sections 59 and 176 (0) RTA, to the case at hand when the circumstance of the case did not warrant so. Besides, that the facts of the case also clearly shows that the Learned Trial Magistrate grossly misdirected herself as seen below;-

That the evidence of PW4 Nabukenya Gerald a lawyer working with Bank of Africa was that LRV 1098 Folio 17 (which the defendant claims to be his land) was registered in the names of Kaminsi Hasin the father of PW5 Jamilu Hassin. That according to records at the Bank, Haji Kaminsi Haini gave powers of attorney to Badali Lubaya to obtain a loan from Sembule Bank. That the land is in Mulugulya Village Namasagali. That Bideli defaulted and the land was sold to Moses Tabigwe. Powers of Attorney, transfer forms, statutory notice, receipt from Posta Uganda and advert were tendered as PE3.

DWl Mutyabule Charles himself confirmed that he has never been registered on the title as proprietor. That for the Learned Trial Magistrate to afford the defendant the rights and privileges of a registered proprietor in her judgment as indicated above was a gross misdirection, which occasioned a miscarriage of justice. If she had not misdirected herself on this matter, she would have come to a conclusion that the defendant actually had no rights at all in respect to the suit kibanja.

Further, that the Plaintiff/ Appellant raised an issue of the defendant's departure from his pleadings, which was very material in the evaluation of evidence. The Learned Trial Magistrate did not evaluate this material fact. The statement of claim, the plaintiff/ Appellant sued defendant/Respondent, Charles Mutyabule for several declarations. In his Written Statement of Defence, the defendant/ Respondent in paragraph contended that he bought the suit land from Yasini Khamisi in 1985. In his testimony DW1 Mutyabule Charles, the defendant at page 31 line 5 stated that the suit land was purchased by the Company Annesworthn Gust House Ltd; and this was a total departure of pleadings.

Again, that in paragraph 6 of the Written Statement of Defence, DW1 Charles Mutyabule the Defendant/ Respondent stated that he bought the suit land in 1985. The same is re-echoed in his summary of evidence.

During his testimony at page 29 line 1, he stated that Haji Yasin Kamis approached their lawyer Mwaya Magezi and Wabwile with a request that he had land to sell. He went on to testify at page 31 that the company bought and tendered an instrument of transfer of land dated 14^th /1/1987 marked as DEX2. At page 34 line 3 of the record, he confirms to have bought the land in 1987.

They argued that aIl this is at variance with the pleadings. Besides DEX2, which is the instrument of transfer of land, tendered in court is different from the one that was annexed to the Written Statement of Defence as annexture "C" which is not witnessed by the lawyers, while DEX2 is witnessed. That DW1 confirmed this during cross-examination at page 36 line 1-3 of the record of proceedings.

Further, that the other material irregularity whereas the defendant claimed that Yasim Khamisi bought the land on 19/12/1982 as evidenced by Annexure "B" to the Written Statement of Defence. That the title, which is, attached to the WSD as Annexure "A" shows that Yasin Khamisi was registered on 8/8/1980, which is inconceivable that one could get registered before purchasing.

Likewise, that Annexure "B' to the Plaint as confirmed by the defendant (DW1) during cross examination confirms that the land which Yasin bought was in Luganga in Mairu wetland and the title is for Mulugulya Village, yet the suit land is at Bugulu, Bwiza Village.

They concluded that the Learned Trail Magistrate failed in her evaluation of evidence to take cognizance of all these discrepancies which were raised during the trial and which were very material to the case.

In reply, it was submitted by learned counsel for the Respondent that the learned trial Magistrate properly evaluated the evidence on record and arrived at the right decision dismissing the suit. That the learned trial Magistrate found that the Plaintiff/Appellant had not adduced any evidence to prove that he was a lawful occupant on the suit land. At page 5 of the trial Magistrates Judgement, she clearly noted that it is the evidence of PW1 that he acquired land from his forefathers who gave it to Munyegera, then to Kamara who also passed it to his father Kintu only finally to him at age of 14; and he took possession of the suit land around 1990. The trial Magistrate then clearly points out thus;

"However, there was no documentary evidence presented to support the evidence of the plaintiff on handing over the said land to him”.

That Counsel for the Appellant faults the trial Magistrate for reaching such a conclusion and states that there is no legal requirement that every fact must be proved by documentary evidence; and that under Section 58 and 59 of the Evidence Act, facts can be proved by oral evidence. They argued that though facts can be proved by oral evidence, in the present case the trial Magistrate was presented by oral evidence on one hand from the Plaintiff's side on the other hand for the Defendants, she had documentary evidence, to wit; a Certificate of Title in the name of Haji Yasin Kaminsi obtained on 8/8/1980 which was way before the plaintiff claims to have been handed the suit land.

That one is left to wonder, how he could have been handed land which already belonged to Haji Yasin Kaminsi, a Transfer Form was also exhibited which clearly indicates that the suit land was sold to Annesworth Guest House Ltd to which the Respondent is a director. That the Appellant never challenged the Certificate of Title for Haji Yasin Kaminsi, though in his evidence he alleged that the title could be forged; the Appellant never sued Haji Yasin Kaminsi and never pleaded fraud and the Certificate of Title remained unchallenged.

That Section 101, 102 and 103 of the Evidence Act, Cap 6 places the burden of proof on he who alleges a fact. In this case the Plaintiff and as it was noted in the case of Oketha Dafala Valentine vs A.G HCCS No. 0069 of 2004 referring to the case of Jovelyn Dugahare vs AG SCCA No. 28 of 1993; and the standard of proof is on a balance of probabilities as was noted in the case of Maganja Hussein vs Mubiru Christopher HCCS No. 0129 of 2010.

That proof on a balance of probabilities was explained by Lord Denning in Miller vs Minister of Pensions (1947)2 ALL.ER 372 that proof on a balance of probabilities is settled and it must carry some probability although it is not as high as in criminal cases. If the evidence is such that a tribunal can say, "we think it more probable than not the burden is discharged but if the probabilities are equal, it is not”.

That in the present case, the probabilities were not even equal as the Respondent proved beyond doubt that the land was for Annesworth Guest House Ltd, to which he is a director. Thus, the trial Magistrate was right to ask for more than mere oral evidence that the plaintiff had been handed the land which evidence he failed to adduce and the trail Magistrate was right to dismiss the case.

The Respondents contended that, the Appellant alleged under paragraph 4(i) of the Plaint that he obtained the suit kibanja in 1990 from his father William Kintu (deceased); and has since that time utilized it for cultivation and grazing. In cross-examination, he told Court that his father gave him land in 1990 that his father died in 1998.

They argued that the said averments were never supported by any documentary evidence, say a gift deed, the plaintiff did not tell Court how his father gave him the suit land whether verbally or in writing or who was present when he was being given the land. They noted that by 1990, Yasin Kaminsi had already acquired title and no one is entitled to deal with titled land without the consent of the registered proprietor. That the plaintiff did not adduce any evidence to indicate that Yasin Kaminsi consented to the alleged giving.

In addition, that Counsel for the Appellant has labored to submit on the elements of a gift inter vivos, however, none of the said elements were ever met. For starters, the Appellant failed to proof that there was land to be gifted, as the land which is purported to have been gifted was not for the plaintiff’s father, but for Yasin Kaminsi; and one cannot gift what does not belong to him. Willing ness to give was not proved, equally acceptance and control were never proved as even at locus visit, the allegations that the Appellant had a house on the suit land were found to be lies as the Respondents Company was found to be in full control and use of the suit land.

In any case, that this is clear evidence from the bar as PW1 never told Court that he got the suit land as a gift inter vivos. The same never even featured at trial and in any case, if it had featured it would be an outright departure from the pleadings for clearly in the Appellants statement of claim the Plaintiff /Appellant sought a declaration that he is a lawful occupant and he stated that he inherited from his fore fathers and confirmed by Will and nowhere is it alluded to that the Plaintiff/ Appellant acquired the land as a gift inter vivos.

They cited the case of Interfreight Forwarders (U) Ltd vs East African Development Bank Supreme Court Civil Appeal No. 33 of 1993 (unreported), where it was held therein that parties are bound by their pleadings and shall not be allowed to depart from them.

They submitted that the trial Magistrate clearly pointed out in her Judgement at Page 6 thus;

“It’s also noted that none of the witnesses were present when the land was handed over to the plaintiff and that this was confirmed by PW2 who is the Lc1 Chairman and had no idea when the plaintiff started using the land"

That the above observation is clearly supported by the evidence on record; for apart from PW1 alleging that he was handed over land, all other five witnesses he presented, none was present when he was being handed over land. All their evidence as regards the plaintiff being handed land was hearsay evidence and as rightly held by the trial Magistrate, that hearsay evidence is not admissible and she relied on the case of Teper v Reginam (1952)2 All ER 447 at page 449 to support that position. They further cited Section 59 of the Evidence Act, which stipulates thus:-

"Oral evidence must, in all cases whatever, be direct"

That it is a principle of Common Law that hearsay evidence which is incapable of being tested by cross- examination to determine its veracity is not admissible as was held in the case of Uganda vs Katumba Crim Session Case No.0175 /2015. That the Appellant further stated that after being given the land, the said giving was indicated in the Will that:-

"Whatever was his, was mine alone", under stood to mean that whatever belonged to the Plaintiff’s purported late father, was now for the Plaintiff alone. That the Will was exhibited as PEXB1; a perusal of the purported Will reveals that it was not witnessed as required by the Succession Act and never proved in Court by way of Grant of Probate. As such, fails miserably to meet the criteria of a valid Will as per section 50 of the Succession Act; and as was held in the case of Mallinga vs Obukunyang HCT-04-CS-0013- 2013 thus;

"A Will must be in writing, dated and signed by the testator, it must be witnessed by two or more attesting witnesses who must see the testator write, sign or affix his mark"

As regards the said Will, that the learned trial Magistrate clearly noted at page 6 of her Judgement thus;

"It is the evidence of PW3 that he wrote the will which gave the Plaintiff the suit land and this was confirmed by PW2 who kept and read the Will at funeral however at cross-examination, PW2 confirmed to the Court that the Will was not signed by William Kintu; and he does not know why and in law specifically the succession Act the Will is valid upon the signing of the author or the owner as per Section 50 of the Succession Act, therefore this leaves the doubt to the Court as to the genuity of the said document. Court further pointed out that the said Will mentioned two pieces of land which were bequeathed to the plaintiff; Court wondered why the vast portion which is in dispute was left out of the alleged Will".

They argued that from the above, it is clear that the Appellants evidence posed more questions than answers. On the other hand, the defence evidence left no stone unturned. That Counsel for the Appellant faults the trial Magistrate for pointing out the Magistrate dispensed her duty of evaluating the evidence presented before her and rightly queried the Will; and clearly pointed out why she was querying the same and she cannot be faulted for dispensing her duty.

They contended that from the evidence on Court record, contrary to what PW1 told Court that he is the sole beneficiary, the alleged Will makes mention to the wife of Kintu William as also having a share of the property, and goes to indicate two pieces of land whose location and demarcations is very uncertain. The same PW1 told Court that he got the suit land by inheritance from his forefathers of Baise Igulu Clan.

PW2 told Court that when the plaintiffs father died, he had willed the land to the Plaintiff in the year 1989, that he was not present when Bangi's father was making the Will, but he got to know about Bangi being given that land when his father Kintu gave him the Will to keep in 1998, yet a Will is a very confidential document and ambulatory in nature.

PW3 told Court that he is the one who wrote the Will and described the two pieces of land talked of therein, but the alleged descriptions were not in the alleged Will.

In cross-examination, PW3 told Court that the land has no boundaries, but borders people yet when locus was visited, the Plaintiff chowed water pipes as boundaries to his land. He further told Court that by the time Kintu died in 1998, the land was not being used it was for cattle grazing for everyone on the village indicating that it was communal land. That Bangi only used the land in 2009, contrary to what PW1 alleges that by 1995, he was using the land, PW4 told Court that the registered owner of the suit land was Haji Kaminsi Yasini, thus confirming the Defendants Defence that the land was for Haji Yasini who sold to Anneswoth Guest House Ltd.

PW5 told Court that the Plaintiff is on their land at the same time; she told Court that her father told her that the Defendant was hiring the land, thus inferring that both the Plaintiff and Defendant were using the suit land. When asked the size of land used by Bangi, she could not tell. However, at locus, it was evident that it was Anneworth Guest House Ltd, which was and is in possession, and use of the suit land as trees had been planted thereon, and a farmhouse was constructed thereon by the Company, there was no indicator that the Plaintiff had ever used the suit land.

PW6 told Court that his father, the late Elusania Igola sold land to Yasin, which is line with the Defendants Defence; that it is the said Yasin who then sold the suit land to the Company. He further states that he was not present when his father sold the land, but he got to know in 1982 when Yasin started utilizing the land. He neither stated that the Plaintiff has ever used the suit land, nor did he state that the suit land was for the alleged Plaintiff's father.

Further, that as regards the plaintiff's allegation that he is a lawful occupant, Section 29(1) of the land Act defines a lawful occupant to mean;

“A person who entered the land with the Consent of the Registered Owner and incudes a purchaser; or

A person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered Owner at the time of acquiring the lease hold certificate of title”.

The above was clearly re-laid in the case of David Byatike Matovu vs Richard Kikonyogo HCC.A No.3 of 2014

They submitted that the Plaintiff/Appellant did not adduce any evidence that he had consent from the registered proprietor Haji Kaminsi Yasini; to the contrary, he feigned ignorance of the existence of title on the suit land and alleged that it is forged though he never sued Haji Kaminsi and never pleaded fraud. On the other hand, the Defendant (DW1) emphatically told court that Annesworth Guest House Ltd bought the suit land from Haji Kaminsi Yasini who acquired a lease hold Certificate of Title way back in the year 1980 for a period of 49 years; his Certificate of Title was never challenged by the plaintiff and stands valid to date,

That Counsel for the Appellant has submitted that the trial Magistrate wrongly applied the principles of section 59 and 176(c), claiming that the trial Magistrate took the Defendant as a registered proprietor, but this is not true at all for clearly from the Judgment the trial Magistrate pointed out

“It is clear that the defendant obtained equitable interest after purchase from Yasin Kamisi, the registered proprietor and it's also clear that a Certificate of Title is conclusive evidence…”

Section 59 of the Registration of Titles Act Cap 230 stipulates thus;

"Possession of a title by a registered proprietor is conclusive evidence of ownership of the land described therein."

Under Section 176(c) RTA, it stipulates thus;

"A registered proprietor of land is protected against an action of ejectment except on ground of fraud"

They submitted that the above provision was considered in the case of Katarikawe vs William Katwiremu & Anor (1977) HCB 187; and in the case of De Souza vs Kasamali Manji (1962) E.A 756. That in absence of fraud, possession of a Certificate of Title is conclusive evidence of ownership of the land and the registered proprietor has indefeasible title against the whole World.

That the Plaintiff /Appellant never challenged the Certificate of Title of Haji Kaminsi Yasini from which the Defendant and Annesworth Guest House Ltd derive their rights. Though PW1 told Court that the Certificate of Title might be forged, PW1 never pleaded and particularized fraud in his claim; and in the case of Mayanja Hussein vs Mubiru Christopher H/CCS No.0129 of 2010, it was held thus: fraud ought to pleaded and proved.

They noted that the Sale Agreement was presented together with a Certificate of Title; which clearly indicates the size of the land and the Transfer Form clearly indicates that the entire land in the title was sold to Annesworth Guest House Ltd, which is a body corporate. That DW1 presented agreement dated 19/12/1982; the said agreement was to indicate proprietary interest of Yasini Kamisi acquired from Erusaniya Kirya.

To support the defendant’s proprietary interest a Transfer Form was presented and this is good enough as the sale is evidenced by it as was held in the case of Kabenkwine Christopher & 2 0thers vs Christopher Mugenyi CA No.35 of 2011 referred to in the case of Mayanja Hussein vs Mubiru Christopher H/CCs No.0129 of 2010

That the suit land is clearly described in the agreement of 19/12/1989 to neighbor Kabaliya, passing "Kisenyi Lugangamaira which separates Maligulya from Bwiiza, and neighbors also Yekosia Isabirye and Opondo Okumu. The lease hold Certificate of Title, Village and measuring approximately 81 hectares”.

Under paragraph 4 and 5 of the WSD, the defendant/Respondent clearly stated that the suit land was sold to Yasini Khamisi by Erusania Igoola to whom a land title was issued and that Yasini Khamisi and Erusana Igoola confirmed the said sale transaction by executing an agreement witnessed by several people on 19/12/1982.

The said confirmation come after the Certificate of Title had been issued and the Certificate has the description of the suit land and the said Certificate of Title has never been challenged by the Plaintiff /Appellant. As to why the Certificate of Title had never been transferred into the Companies name, DW1 satisfactorily told Court that Yasini Khamisi had acquired a loan against the Certificate of Title and that issue had been sorted by Consent Judgment in a suit against Yasini Khamisi's widow.

That the Appellant further failed to prove that he is a lawful occupant by virtue of custom. Customary tenure is defined under section 1(1) of the Land Act as a system of land regulated by customary rules which are limited in their operation to a particular description or class of persons of which are prescribed. Section 3 and 46 of the Evidence Act Cap 6 stipulates thus:

“When a Court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of that custom or right of persons who would be likely to know its existence if it existed are relevant"

They submitted that no expert was presented to support the Plaintiff/Appellant's alleged customary ownership in any case. It ought to be recalled that the Land Reform Decree, 1975, which was the law in force at the time when the Plaintiff alleges to have started using the suit land, declared all land in Uganda to be Public Land to be administered by the Uganda Land Commission in accordance with the Public Land Act 1969.

The system of occupying Public Land under customary tenure was to continue, but only at sufferance; and any such right could be granted by the Commission to any person. Section 5 of the Decree specifically restricted occupying public land by customary tenure and under the Land Reform Regulations 1976, any person wishing to obtain permission to occupy public land by customary tenure had to apply to the Sub-County Chief in charge of the area where the land was situate; and such application had to be approved by the Sub-County Land Committee as was held in the case of Kampala District Land Board & George Mitala vs Vanansio Bamweyaka & 3 others S.C.C Appeal no.2 of 2007.

That the learned trial Magistrate having been presented with hearsay evidence of PW1, PW2, PW3, PW4, PW6 & PW66, she was right to insist on documentary evidence to prove the Plaintiff/Appellants ownership, which was never adduced. The plaintiff alleged that he was using the suit land, however no approval from the Sub-County Land Committee was ever availed to support the Plaintiff’s allegation; and it is not possible for him to have used the said land without it.

That the only inference left is that the plaintiff had never utilized the suit land and could not have acquired any customary tenure on the suit land prior to the enactment of the Land Act 1998. The 1995 Constitution and the Land Act 1998 did not operate retrospectively to establish rights.

Lawful Occupant is a creature of the 1995 Constitution in order to recognize the status quo of the various tenancies existing on the land in Uganda as at 1995; and to give security to persons who fell in those particular categories by providing for their rights on land as was held in the case of Musisi vs Edco & Anor Civil Appeal No.52 of 2010.

On the other hand, the Defendant/Respondent presented a Lease Certificate of Title in the name of Yasini Khamisi, which is in conformity with the Land Reform Decree 1975; and it is the said Yasini Khamisi who sold the suit land to the Defendants’ Company and this evidence was never discredited in any way.

That Counsel for the Appellant also submitted that the Plaintiff got a gift inter vivos from his grandfather; as earlier submitted this is a clear departure from the pleadings, however the appellants claim does not in any way fulfill the conditions for a gift inter vivos. The formalities for a gift inter vivos were well re-laid in the case of Norah Nassozi & Thomas Kalinabiri vs George William Kalule HCCA 05/2012 to wit;

1. There is intention to give the gift.

2. The Doner delivers the property.

3. The Donee accepts the gift.

That Justice Mubiru in the case of Wayi & Anor v Ojali (Civil Appeal No. 0023 OF 2009) [2017] UGHCLD 2 (10 January 2017), held that," A gift is a voluntary transfer of personal or real property without consideration. It involves the owner parting with property without pecuniary Consideration. It is essentially a voluntary conveyance of land, or transfer of goods, from one person to another, made gratuitously, and not upon any consideration of blood or money. It has been legally defined as the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee". (See Black's Law Dictionary, Revised Fourth Edition, (1968) St. Paul, Minn. West Publishing Co., at p. 187).

Further, that in the case of Joy Mukobe vs. Willy Wambuwu HCCA No. 55 of 2005 relying on other decided cases, the court held that:-

"For a gift inter vivos to take irrevocable roots, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift.

That in the present case, there was no evidence that the Appellants father had intention of giving the gift. There was no evidence that the same was handed over to the Plaintiff/Appellant; and at locus visit the Plaintiff/Appellant was not in occupation. As such, no proof that the Plaintiff accepted the gift, in any case the Plaintiff's father could not have gifted the Appellant/Plaintiff the suit land which did not belong to him.

That the Appellant failed to prove that he owns any land in Mulyaqulya Village where the suit land is located, as he alleged that his land is in Bwiza Village. The plaintiff did not adduce any iota of evidence to connote that his father ever objected to the grant of a lease to Hajji Kaminsi Yasin in 1980 and no evidence of occupation was adduced.

The Plaintiff told Court that the Defendant came with 9 people and started slashing his plantation like Maize, cutting trees (Burnt Charcoal) and slashed his land. That no evidence was led as to whether the Appellant reported to Police, or photographs indicating the said allegations. PW2 Benon Namanya purported to be the LC1 Chairman for Bwiza village told Court that he forwarded the Plaintiff to LC111 for assistance and presented a letter P.1D1. In cross- examination when asked whether he knew how to write, he said ‘no’, that it is the late Kaigo David who had written his name.

PW3 Kanya James told Court that he wrote the Will. As earlier submitted, the alleged Will was contrary to Section 50 of the Succession Act. He further told Court that by the time Kintu died in 1998, the land was not being used; that Bangi started using in 2009.

PW5 told Court land belongs to Yasin Kaminsi, PW6 told Court the suit land was sold by his father the late Elusania Igola to Yasin; and it is the said Yasin who sold to Annesworth Guest House Ltd, to which the Respondent is a director.

That DW1 clearly told Court that he is the director of Annesworth Guest House Ltd; and bought land in such capacity. As such, there is no departure from the pleadings whatsoever. Counsel for the Appellant only alludes to departure in an attempt to circumvent the law on corporations having independent existence, as espoused in Salmon vs Salmon & Co Ltd (1897) Ac 22.

That a Company can buy land in its own name; and once any one feels that his right is infringed by the said purchase, then the person can sue the Company and not its directors. It is the Company in view of the Right to a fair hearing espoused under the 1995 Constitution that is vested with powers to defend its interests; and its rights and its rights cannot be determined without being accorded a fair hearing.

That ‘Annexture C’ to the Defendants WSD clearly indicates that the suit land was purchased by Annesworth Guest House Ltd. A Certificate of Incorporation was exhibited as DEXH1 to indicate its independency from its directors. DW1 clearly told Court that it is the Company to which he is a director that purchased the suit land. That it is as such very clear that the Plaintiff has no cause of action as against the Defendant; and suing a wrong party is an illegality which once is brought to the attention of Court, cannot be left to stand as was held in the case of Makula International vs His Eminence Cardinal Nsubuga (1982) HCB 11.

They concluded that the learned trial Magistrate thus properly evaluated the evidence and reached the right conclusion dismissing the suit.

In rejoinder, it was submitted for the Appellants that on Page 3 Paragraph 4 of his written submissions, he proved beyond reasonable doubt that the land was for Annesworth Guest House Ltd on which the respondent is the director; and thus the trial Magistrate was right to ask for more than oral evidence. That the plaintiff had been handed over the suit land which evidence he failed to adduce.

The Respondent further submits on Page 7 Paragraph 3 of his Written Submissions that 'the learned trial Magistrate having been presented with hearsay evidence of PW1, PW2, PW3.PW4, PW5 and PW6, she was right to insist on documentary evidence to prove the Plaintiff/Appellant's ownership which was never adduced..."

They cited the decision of the Hon. Justice Stephen Mubiru in the case of Akulluv Odong Civil Appeal No. 21 of 2018 citing different authorities expounded more on meaning of burden of proof in civil cases where the Learned trial Judge stated that:-

".... the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred (see Lord Hoffinan explained in, In re B (Children) (FC) [2008] UKHL 35). The credibility of individual witnesses and the probability or in probability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the plaintiff's or the defendant's version.

The version presented by the plaintiff to substantiate the allegations in the Plaint, must be found on the whole to be more probable or likely than that of the Defendant if court is to decide in favour of the plaintiff.

The process of reasoning includes consideration of various hypotheses which are open on the evidence and in civil cases the selection from them, by balancing probabilities, of that hypothesis which seems to be the most natural and plausible, in the sense of acceptable, credible or suitable. (See Bates and Lloyd Aviation (Pty) Ltd and Another v. Aviation Insurance Co. (1985) 3 SA 916 (A)

That the question as to whether the plaintiff has discharged the burden of proof on a balance of probabilities depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and / or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable. The enquiry is two-fold: there has to be a finding on credibility of the witnesses; and there has to be balancing of the probabilities …".

That the Appellants contended that their witnesses were consistent throughout their testimony that the suit land belongs to the Appellant; and their credibility was never challenged by the Respondent in the Lower court. In fact, the Respondent did not bring any genuine document to prove his case that he bought the suit land. That no Sale Agreement was ever brought by the Respondent and the other documents he sought to rely on were full of material contradictions. They invited this court to also look at Section 58 and 59 of the Evidence Act Cap 6, which provides for oral evidence.

Section 58 provides that “all facts, except contents of documents may be proved by oral evidence”.

Section 59 of the Evidence Act Cap 6 provides that “oral evidence must in all cases be direct that is to say:-

a) If it refers to a fact, which could be seen, it must be the evidence of a witness who says he or she saw it.

b) If it refers to a fact, which could be heard, it must be either the evidence of a witness who say he or she heard it.

That the Appellants argued that it is clear from the reading of the sections above that the Appellant may be prove his facts by oral evidence except for contents of documents. That it is not true that the Plaintiff/ Appellant did not adduce enough evidence that he was handed over the suit land by his late father Kintu William. In fact, the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 was enough to prove that fact.

They implored this Honorable Court to look at the evidence of PW1, which appears at page 4 to 6 of the record of proceedings. At page 5 of the record of proceedings, line 18-20 PW1 Bangi Robert, the Appellant stated in examination in chief as follows;

"I got this land through inheritance. Its land of my fore fathers of Baise Igulu clan Munyegera passed it to my father Kintu and in 1990 Kintu passed it over to me.

In cross-examination at page 5 line 3-39 Bangi Robert the Plaintiff/ Appellant further testified that;

"I took over the land in 1990. I don't remember how old I was. But around 14 years. My father Kintu William died in 1998. I was the only child of my father. My father gave me the land in 1990 saying he was growing old. Later, when he died, he indicated in the will that whatever was his was mine alone. The clan read out the will and handed over properties to me including land. In 1990, whoever wanted to rent the land could come to me. By the time he died, the land was in my hands."

At Page 5 lines 3-8, the Plaintiff (PW1) testified that the Respondent/ Defendant in the year 1995 trespassed on his (plaintiff's) land at Bugulu, Bwiza with 9 other people and they destroyed the plaintiff's crops. The Plaintiff (PW1) by the above evidence clearly shows that upon being given the land in 1990, he started using it; and by 1995 when the Respondent/ Defendant trespassed on the suit land, the Plaintiff / Appellant was in active possession.

They submitted that the trial Magistrate also faulted the appellant for not adducing any documentary evidence to prove the ownership of the land, however the defendant did not adduce a single document in court which actually proves that he purchased the suit land. That the Sales Agreement dated 19^th/12 1982 and annexed as annexure 'B’ on his WSD at Page 67 of the index of appeal was actually between Yasini Kamisi and Erusaniya Kirya Igoola; and not the respondent or his company Annesworth Guest House Ltd.

They therefore submitted that the Appellant indeed provided enough evidence that the suit land was handed over to him by his late father Kintu William; and therefore it was wrong for the trial Magistrate to discredit such evidence on grounds that there was no supporting documentary evidence to support the handing over the same land to the Appellant/ Plaintiff.

Furthermore, if there were two probabilities, the version given by the Appellant is a credible version as opposed to that of the Respondent. That the Respondent further submits that the Respondent proved his case by adducing documentary evidence to prove that the land belonged to Annesworth Guest House on which the trial Magistrate relied on as seen on Page 76 of the index of appeal where she stated that the Respondent derived equitable interests and therefore the suit land did not belong to the Plaintiff/ Appellant. The Appellants therefore disagreed with the Respondent's submissions based on the following.

Certificate of Title LRV 1089 Folio 1.

They submitted that the Respondent attached to his WSD the Certificate of Title comprised above marked as annexture 'A' on page 60 of the index of appeal, which is in the names of Yasini Kaminsi as the registered proprietor who was registered on the 8^th August 1980.

The Respondent in Paragraph 4 of his WSD stated that the suit land was sold to Yasini KamiNsi by Erusaniya Igoola; and that Yasini later registered the land. The Sale Agreement on Page 67 of the index of record is and it is dated 19^th between Erusaniya Igoola and Yasini Kamisi December 1982; and yet the Certificate of Title was registered on the 8^th day of August 1980. That this clearly shows that Leasehold Title was processed 2 years before the alleged purchase of the land in question which makes it blatantly questionable.

Secondly, that the sale Land Agreement between Yasin Kamisi and Erusaniya Kirya Igoola talks about land in Lugangamairu, whereas the Leasehold Title of Haji Yasin Kamisi talks about land at Maligulya; however they wished to bring it to the attention of this Honourable Court that the suit land is at Bugulu- Bwiza and not at Lugangamairu or Maligulya as indicated in the Appellant's Statement of Claim at page 55 of the index of record.

That the Appellants found it strange that the Learned Trial Magistrate ignored these inconsistences in the defence case and Exhibits. The Learned Trial Magistrate further relied on Section 59 and Section 176 (c) of the Registration of Title Act Cap 230, to hold at Page 6 of her Judgment that the Defendant derived equitable interests in the suit land. They contended that the Defendant is not the type of person envisaged and protected by Section 59 and 176 (o) of the Registration of Tiles Act Cap 230 and it for this reason that the Certificate of Title cannot provide conclusive proof of the Respondent's proof of ownership in the land in dispute.

They argued that the Defendant is not the registered proprietor on the Certificate of Title. There has never been a transfer effected into the Respondents name since 1987 to date and therefore the Defendant did not have legal interest in the land, yet the above sections seek to protect a person with legal interests.

3. Instruments of Transfer marked DEX2

That during his testimony at page 29 line 1, DW1 and the Respondent Mutvabule Charles stated that Hajji Yasin Kamisi approached their lawyer Mwaya Magezi and Wabwile with a request that he had land to sell. He went
testify at Page 31 of the record of proceedings that the Company bought and tendered an instrument of transfer of land dated 14^th /1/1987 marked as
DEX 2.

At page 34 line 3 of the record of proceedings, he confirms to have
bought the land in 1987. All this is at variance with the pleadings. Besides DEX2 which is the Instrument of Transfer of land tendered in court
is different from the one which was annexed to the WSD as Annexure "C", which is not witnessed by the lawyers, while DEX2 is witnessed. That DW1 confirmed this during cross-examination at page 36 line 1-3 of the record of proceedings.

That it is clear that this instrument was not witnessed by the advocate
who prepared it. What is strange is that the trial Magistrate did not
evaluate this evidence visa vie the inconsistences in the documents tendered
in court. That as earlier submitted, the other material irregularity is that whereas the defendant claimed that Yasim Khamisi bought the land on 19/12/1982 as evidence by Annexure "B" to the WSD, the Certificate of Title which is attached to the WSD as Annexure "A" shows that Yasin Khamisi was registered on 8/8/1980, which is inconceivable that one could get registered before purchasing.

3. Sale Agreement dated 19^th/12/1982.

They submitted that the Respondent attached a Sale Agreement on his WSD annexed as ´B on page 67 of the index of appeal, which was dated
19^th December 1982 as evidence of purchase of land from one Yasini Kamisi; however the Respondent was not a party to the Sale Agreement and neither was his Company Annesworth Guest House Ltd. That the Sale Agreement is between Yasini Kamisi and Erusaniya Igoola. That No Sale agreement was tendered in court of the purported sale between the Respondent and Yasini Kamisi.

Secondly, land in the same Sale agreement was described as "etaka lyekisenyi Lugangamairu'”, yet the suit land is at Bugulu-Bwiza village. Clearly, this Sale Agreement was in respect to an entirely different land from the suit land. They found fault with the learned trial Magistrate who failed to evaluate the evidence and contradictions in the Respondent's evidence; and therefore submitted that the evidence by the Respondent was full of inconsistencies and irregularities in the documents tendered in court. The defence witnesses in fact were of no evidential value as they did not adduce any evidence as to how the Respondent acquired the suit land.

As regards the suit land being a gift inter vivos, that the Appellants submits on page 3 of his Written Submissions, "... that in cross-examination he (Appellant) told court that his father gave him land in 1990, that his father died in 1998, the said averments were never supported by documentary evidence say a gift deed the plaintiff did not tell court how his father gave him the suit land whether verbally or in writing or who was present when he was being given the land, o note by 1990 Yasin Kamisi had already acquired title and no one is entitled to deal with titled land without consent of the registered proprietor."

First of all the evidence of Kamisi's daughter Jamila Hassin was not controverted by the respondent during cross-examination. She testified at page 19-18 of the record of proceedings that she is the daughter to Hasin Kamisi, the registered owner of the land on which the suit land is. She told court that she knows the Plaintiff as a squatter on the land. This confirms that she knows the Plaintiff as someone who was in possession of the suit land.

Secondly, that it is clear that the Respondent is confusing inheritance of the suit land from a gift inter vivos. The Appellant on page 5 of the record of appeal clearly lays a background of how he acquired the suit land. He stated that

"I got the suit land through inheritance. It's the land of my fore fathers of Baise Igulu clan. Munyegera passed it to Kamara who passed it to my father Kintu and 1990 Kintu passed it to me.'"

However, he further states at page 5 of the record of appeal "In 1990, whoever wanted to rent the land could come to me. By the time he died the land was in my hands". That by this statement, it clearly shows that the suit land was a gift inter vivos as it is clear the Appellant was given the land in his father's life time and he started using it even before his father passed away.

As regards possession, PW1 testified that he took over control and possession of the suit land in 1990 even when the donor (Kintu) was still alive. That, the evidence of PW1 was not controverted by Defendant/Respondent during cross-examination. PW2 Benon Namanya's testimony appears at pages 7-8, 13-14 of the record of proceedings.

PW2 testified at page 8 of the record that the suit land belonged to the Appellant who had been in possession since 1990. That the Respondent and other unknown individuals encroached on the Appellant's land. PW2 and the area LC.1 Chairman testified as seen on page 8 of the record of proceedings that encroachers destroyed the Appellant’s crops. PW2 gave the Plaintiff a forwarding letter since in his view the matter was too big for him, so he gave the plaintiff a forwarding letter to the LC.111 Chairperson for assistance.

From the above evidence, the appellant clearly shows that upon being given the land in 1990 by Kintu William, he started using it and he was in active possession until 1995 when the respondent trespassed into his land.

They cited Section 110 of the Evidence Act, Cap 6 which provides that "when the question is whether any person is owner of anything of which he or she is shown to be possession, the burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner."

They reiterated that the respondent did not adduce evidence that the Appellant was not the owner of the suit land, yet the burden is upon him to prove such facts as provided by Section 110 Evidence Act, Cap 6. That in fact, all the documents the defendant sought to rely on to prove his already submitted ownership were full of material contradictions as above.

In order to resolve these grounds of Appeal, I have first summarized the evidence of both sides as led before the trial Court.

The Plaintiff’s 1^st witness was Bangi Robert, a male adult aged 31 years of resident of Bugulu-Bulimiria, Bugabula, Kamuli District (herein after referred to as PW1). In his examination in chief, he knew Charles Mutyabule, the defendant in this case; and testified that he came with other people and trespassed into his land located at Bugulu in Bwiza Parish in 1995. That what transpired is that the defendant came with 9 people not known to him and called him to stop using his land saying that it was not his land. They started slashing his plantation like maize, cutting the trees (burnt charcoal); and slashed his land. That he reported the matter to Police, which was not so helpful saying that it was a land matter.

Further, that PW1 approached Legal Aid, which helped him sue the Defendant. The neighbors to the land are himself in the north, Mutasa Jackson in the south and Luganga Maila swamp, Ojinga Fuwa in the east, Bumaligenya swamp/Luganga Maila swamp. The dispute land is about 50 acres, he never measured it, but the defendant has trespassed into all of it.

That he got the land through inheritance. It is land of his fore fathers of Baise Igulu clan, Munyegera passed it to Kamara who passed it to his father Kintu and 1990 Kintu passed it over to him. That the defendant and his friends destroyed his one acre of maize ½ acre of millet; used to graze on the land, but was hindered and not carrying on his grazing normally causing loss and inconveniences. He would like court to order the defendant out of his land and pays damages and costs of the suit.

During Cross-examination, PW1 answered that the disputed land is estimated to be measuring 50 acres. An acre is equivalent of 10 sticks of 10ft-40 sticks; he has around 5 neighbors to the disputed land who include Ojinga Ofuwa, late Iganya Dauson, Mutasa Jackson, Iganga, Late Sarah. The land extends to the Swamp. PW1 maintained that took over the land in 1990, but didn’t remember how old he was, but around 14 years. That his father Kintu William died in 1998, he was the only child of his father and his father gave him the land in 1990 saying he was growing old.

Later when he died, he indicated in the Will “whatever was his was mine alone”. That the clan read out the Will and handed over properties to him including land.

That in 1990, whoever wanted to rent the land could come to him. By the time he died, the land was in his hands. The clan just confirmed his right. That Yasin has ever been a resident of Maligalwa, Ensum Egola was a resident of Maligulwa.

PW1 maintained that he was not aware that the land in question had a title before this case. That he had ever looked at a copy of the alleged title and thinks that the title is forged. He sued the defendant because he is the one who claimed the land among the nine people who invaded his land; he was told by his father how the ownership of the land had been moving. That in 1985, he should have been in the disputed land because he was born there and had stayed there to date. The defendant does not allow him to reach the swamp by 50 acres. That the defendant has stopped using the disputed land, but his people are therein.

In Re-Examination, he responded that the defendant introduced himself to him as owner of the disputed land; and forbid him from trespassing therein. Busanga is a neighboring village, his land stretches up Maligulwa.

The Plaintiff’s second witness was Benon Namanya, a male adult aged 49 years, resident of Bwiza Village, Bugulu Zone, Namasagali Sub-County, Kamuli District (herein after referred to as PW2). His letter referring to the Plaintiff for further management of his land dispute was marked and exhibited as PEX1.

PW2 testified that he is the LC I Chairman, Bugulu-Bulima zone and knows Mutyabule Charles, he is not a resident of their village, but they have a conflict with the plaintiff. Between them, there is a land dispute. That the land in dispute is at Bwiza. This started when Mutyabule encroached on the plaintiff's land in 1995. He brought people and settled them in the disputed land the people were not known to him. That the people found when the plaintiff had cultivated his maize of one acre and 2 millet on acre, trees which they slashed and cut down burning charcoal respectively. They stopped the plaintiff to use the land, to use part of it for the same. The LC I Chairperson forwarded the plaintiff to LC III Chairperson for assistance since the matter appeared too big for PW2 and he gave him a forwarding letter.

PW2 further testified that as the area LC 1, the plaintiff has been in possession of the suit land cultivating it and grazing there his cattle since 1990 when it was handed over to him by clans. Then when his father died, he had willed it to him in 1989; and the when he died the Will was read out by the clan and the land was handed to him. The plaintiff's father was William Kintu who died in 1990.

That the Will was read during the last funeral rites function. The land shares boundary with land of one Oginga Ojavaat Railway Line, Liganga Manyu dividing Bwiza and Manyu village, the plaintiff across the road going to Malugulwa from Bwiza and James Mugulusi in the south. The land is at Bwiza village in Bugulu zone. It’s estimated to measure 50 acres.

During cross-Examination, PW2 answered that the estimated size of the suit land measures approximately 50 acres. He knew the neighbors to the land. He knew how Bangi got that land. He was not related to Bangi, but only a neighbor after some people. He is a village mate. That he got to know PW1 when his father Kintu William gave him the land in 1989.

PW2 claimed to know the boundaries, but there are no boundaries/birowas, path going to Maligulwa, the other side east there is a Railway, west there is a swamp called Lulgangamaila, in the north, it shares with Basanswa village. He knew the defendant, that he doesn’t shares a boundary with the plaintiff. PW2 was not present when Bangi's father gave him that land. He got to know about Bangi being given that land when his father Kintu gave the Will to keep in 1998. Kintu was staying in his village; and he knew Mugulusi as a person from Basambwu village.

The Plaintiff’s third witness was Kanya James, a male adult aged 59 years of resident of Bwiza Village, Bugulu Zone, Namasagali Sub-County, Kamuli District (herein after referred to as PW3). A copy of the Will was exhibited and marked PE2. PW3 knew Bangi Robert as his friend, and son of his late friend Kintu William who died in 1998. He didn't know Charles Mutyabule, and had only seen him in court.

He testified that the late Kintu William used him to write a Will. That he has left his son Bangi Robert as his heir and has left him with his 2 pieces of land. He maintained that he was the one who wrote the Will in 1989. That since he was sick, he had one land at home where the home is and the other land started for the Railway up to Buganga swamp. He confirmed that he can identify his handwriting. That PW3 left the document with Kintu William; and that the land at the Railway is the one in dispute.

In Re-Examination, PW3 responded that he has no responsibility in the village. He came to Bugulu-Bulimira village in 1980 and wrote the Will in 1989; and is a member to late Kintu/Bangi. That before he used to write documents for the LC, but these days they got other people and he stopped writing documents for L.C in 1986 and has never written documents for the current chairman Namanya.

That he got to know the land at the Railway in 1985. The late chairman was called Sooka whom he used to write for. Namanya became chairman in 1986. PW3 did not know the size of the suit land, but knew the boundary as Kintu used to tell; and showed him the boundary in Kintu was as old as his father. The land has no boundary marks/birowa or migaile, but it borders people. It borders Oginga at railway, the other side it Busansu, it also borders Bangi Robert's other land, then the swamp of Lugangamilira.

That the suit land is entirely in his village and shares a boundary with Mugulusi when he kept the Will he got to know the contents of the Will and some he is remembering he was not the author of the Will and he did not witness, it but he read through the Will. That the Will was not written in his presence. That Bangi's father died in 1998. Mutyabule is using the suit land and he did not know how he came to use that land; and did not know when Bangi started using the land, but he saw him digging.

That he has been on the village since 1968, knows Elusania Igoola, but he died. He was from Malikubira village; they used to share him the Bisoko land where he owned land. He knew Haminsi Kampisi from Malugulya village; the villages are separated by the swamp. That Igoola had no land in his village. Kintu thumb printed on the Will.

PW3 had never seen his thumbprint on any other document. That he told him to keep his Will. It’s PW3 who issued the letter, but he had his secretary who wrote it. The person who wrote the letter died, he was called Kaigo David, the secretary. He did not go to school at all and can read a little, he cannot write.

He didn’t know why Kintu did not sign the Will. The letter was written in about 2 years ago, when he was below 40 years old (witness reads his letter only reads the top).

That he did not write his name there, it was written by the late Kaigo David. He did not put any person that document as he cannot write. When the document /letter was written, it is PW3, Kaigo David and Bangi were present; no other person wrote on that document. I have never signed any document, but they put my name.

That this is his second time in Court. He did not remember admitting in this court that he signed a document, he was not conniving with Bangi to grab any land. That Mutyabule has no land in his area but he hears that he has got land in Malugulya village and he knows that land. That it is Kaigo who wrote the letter, he was sure and the name when the stamp is Kaigo used a blue pen.

In Re-Examination, PW3 answered that the LC Malliny, he use the secretary to the LC to write for him. That he only give the secretary the words to write and for the letter he told him to do the same. That he wrote to the LC 3 Chairperson when Bangi complained that Mutyabule sent workers and destroyed his crops. The swamp separates lands of the two villages.

He asserted that he was alone with Kintu William when he wrote his Will. Kintu's brother is still alive and stays in Bwiiza village. That there is no other relative apart from that one Besulafa-Waiswa, brother to late Kintu. He did not t know if they were on good terms. That Besulafa came to the village after the death of his brother Kintu, so at the time he wrote the Will, Kintu had no other relative apart from his son Bangi.

That Igoola is from another village. He knew Lubaale Kapere, did not know if he was alive in 1985 when they toured the land. That he knows where he was staying, he never left that village. He did not know when he died. He was from the neighboring village a bit far. He was not related to Bangi's father at all.

He knew Mutasa Jackson, he is not related to Bangi; and knew Kintu Kapere. He knew Kaigo David. That by the time Kintu died in 1998, the land was not being used, it was for cattle grazing for everyone on the village. There was no house on the land. Kintu was the biological father of Bangi.

That in 2000, he saw people using that land saying it was Mutyabule who allowed them to cultivate. Those people of recent were removed by Mutyabule's son. Bangi only used this land in 2009.

The Plaintiff’s fourth witness was Nabukenya Gerald, a male adult aged 28 years of resident of Luzira-Kampala (herein after referred to as PW4). A copy of the Powers of Attorney, Mortgage Deed, Statutory Notice and receipts from Posta Uganda Advent delivery forms were exhibited and marked P3.

He testified that she is a lawyer working with Bank of Africa as a senior legal Officer under Office Plot 45, Jinja Rd-Kampala. He did not know the plaintiff. That she has ever stayed by the defendant, he is the owner of Annesworth Hotel in Jinja. That he was sent as a witness to show court where to the LRV 1098 Folio 17 is.

That the registered owner of that land was Haji Kaminsi Hasini and according to the records of the bank, he gave Powers of Attorney to Bideli-Lubaya R.Syhesto author's heir to obtain a loan from Sembule Bank then; and a legal Mutyabule was executed. The land is located in Malugulya village-Namasagali. The Powers of Attorney are dated 09/03/1996, to borrow money from any person. That she could not tell when the powers were received by that bank Sembule located 2 miles to Bideli Lubaga; and a legal Instrument was executed on 09/05/1996. The Mortgage was registered on 20/05/1996.

Further, that the borrower hands over the title until completion of the payment. The borrower incurs the cost of a registering the Mortgage, Bideli did not pay up the money. When he defaulted, the bank gave Oscar Associated Institution authority to the land in 2002. That Oscar Associate gave Kaminsi and Bideli authority. That the land was sold to Moses Tabingwe on 31/10/2007; and the signed transfer forms were handed to Oscar Associated for Owned transferred to Tabingwa by 2007, Tabingwe was the rightful over.

During cross-Examination, PW4 answered that he didn’t know what transpired after the sale of the suit land by Osca Associates. He was aware that the matter concerning that particular sale is in court and it has not yet been concluded. That she had not seen the Title to the land. That the parties to that suit are Annesworth Guest Home Ltd vs Bank of Africa, Oscar Associates, Moses Tabingwe and Another.

That the Defendant is the proprietor of Anneworth Hotel as per the records on Sembule Investment File the land is for Tabingwe.

In re-examination, PW4 responded that he joined the bank in May 2001.

The Plaintiff’s fifth witness was Jamilu Hassin, a male adult aged 36 years, a shoe seller, a resident of Bombo-Nakatuya, Luweero District (herein after referred to as PW5). In his examination in chief, he affirmed that he knew the plaintiff. That the Plaintiff is on their land a squatter where they leave out. The land is for their father Hasin Kaminsi, deceased, who died in 2001.

He knew the defendant as friend of their late father. That he had never seen Defendant, he saw him on the funeral of his father, but PW5’s father used to call him on phone to send him money; and his father used to talk about him. That his father has never sold land to Mutyabule. He said Mutyabule was only hiring the land; and when he was calling him for money for PW5’s father told him the title deed is in bank; and that they should get money to get it, but that PW5 had not got the title from the bank.

During cross-examination, PW5 answered that his father left many children about 40, but now they are about 33 children. That he first stayed with his grandfather and later joined his father in 1980 up to when he got married in 1990. That he first stayed in Malugulya up to 1987, visiting his father had houses in Malugulya.

That his father left Malugulya in 1997 and joined him in Bombo. That he was still the process of obtaining Letters of Administration. They do not have Letters of Administration, yet as some family members are away. That his father told him he had mortgaged the title through Sylvester Bideri through Powers of Attorney.

He affirmed that his father has never told him that he sold that land. He was not aware that her Mutyabule bought that land. That he had never had that Mutyabule had ever bought the land; and was hearing it for that he bought, He had heard it today and was surprised to hear the same in court.

PW5 further answered that he had never demanded payment of rent from Defendant ever since the death of his father. He didn’t know if defendant has ever paid rent because he have never paid any. That the Defendant is in occupation of the land up to today. His father did not tell him how much money the Defendant is supposed to pay.

That the Plaintiff has never paid rent to him also. He knew Bangi is on their land but he did not know the size he is occupying. He didn’t know how Bangi came to that land; and didn’t know if Bangi uses the land because he has never gone there.

That the Plaintiff once had a garden of potatoes and 1983-84. He didn’t know the exact portion of the suit land since it's a longtime. When he went to Bank of Africa, he did not hear of defendants name anywhere. That the suit land is still their land. He heard about this case in 2011 this year. That they have sent letters to the LC about this land to the village, he sent them in June 2011.

The Plaintiff’s sixth witness was Ogoola Stephen, a male adult aged 49 years, a farmer, resident of Malugulya-Namasagali Sub-county (herein after referred to as PW6). In his evidence in chief, he testified that he knew the plaintiff as his neighbor. That he is a Kisoko Chief. He did not know the Defendant, that it was his first time to hear/see him.

That he knew the land in dispute; it is his father who sold it to Yasin. His father is late Elusania Igoola died in 2008. That the land borders plaintiff’s land and the swamp, Mutasa's land is upwards. His father sold the swamp to Lugangaimalira to Yasin only.

During cross-examination, PW6 answered that he was not present when his father sold that land. That he got to know in 1982 when Yasin started utilizing the land. That he heard that Yasin hired the suit land to Mutyabule, the one of the swamp. That he had Yasin got a leave to that land and had never left the village. He was not present when Yasin was surveying that land, as it had been sold. That he got to know about Mutyabule's use of the land in 1998.

The Plaintiff closed his case.

The Defence case opened with Mutyabule Charles, a male adult aged 63 years resident of plot 31 Circular road Jinja (herein after referred to as DW1). In his evidence in chief he exhibited DEX.1, a Certificate of Incorporation of Annesworth Guest House Ltd. A copy of the Sale Agreement dated 14.1.1987 was admitted as DEX.2

He testified that the suit land is described as LVR 1089, Folio 17. It is a titled land. It is located in Malugulya in Namasagali Sub County Kamuli District. The Registered owner is Hajji Yasin Khamis. That in 1987, Hajji Yasin Khamis approached their lawyers, by then who were Mwaya Magezi and Waibale with a request that he had land to sell. That their lawyers went ahead, obtained a copy of the title, and went for the search in the Registry and they obtained a clearance. As there was no any encumbrance, they gave them a go head to prepare a Sales' Agreement on behalf of their corporation.

He further testified that he was not around when the lawyer went to the LCs. That in addition to the search, the lawyer also engaged the Local Chief LCs who confirmed that the said land was in existence. That the lawyer gave him the documents concerning how Khamis obtained this land. DW1 also claimed to have visited the land and he found that there were no any signs of utilization except a dilapidated cattle deep. That at the time PW6 inspected this land, it was a tree land covered with a forest and it was in 1987. That he established the owner of this deep. He was Khamis.

After the search, the lawyer prepared the Sales Agreement the parties converged, met and the company paid the money. That the parties were the seller and the buyer. The seller was Haji Khamis Yasin. The buyer was the company, but it was represented by himself.

The original copy is returned to counsel for the defendant after it has been inspected by Court.

DW1 further stated that he didn’t have a land title as a company. That they did not process its transfer because the land title is held by the bank as mortgage. That up to date, they have never transferred their names to the land. That after signing the agreement, the copy took possession of its land and started developing and built there on the farm house they planted trees. That they are still using this land up to date. They cleared the forest for planting seasonal crops like maize, started this in 1987, that same year they bought this land. They did not get any resistance or complaint by any person.

That he has never seen the plaintiff using this land or any part of this land. He have never destroyed any crops of the plaintiff on this land and he was reported to Police. That he has never been arrested by any Police for malicious damage of the plaintiff's crops.

He denied that Kintu has ever been in occupation of this suit land. That he used to know that there was an old man called Kintu who was in that area, but he died long ago. Kintu had two pieces of land in that area. These two pieces are not neighboring this land in dispute they are separated by some other land owners. There is a railway line, which separates that land in the north. This land they bought does not cross the railway line.

That Kintu died without a child. He was buried in one of his pieces of land, which is separated by some other land owners. He knew the land the plaintiff occupies, he is using both the pieces of land that belonged to Kintu and he stays where Kintu was buried. The mediate neighbors are Ojinga Opondo and another one is Opondo Ogwanyu. He did not know the exact relationship between Kintu and the plaintiff, but Kintu is not the biological father of the plaintiff.

That it is not true that he never bought this land; and it is not true that he hired the land. The truth is that the Company bought land from Hajji Khamisi. The allegation that the company forced the plaintiff out of his land in 1995 is not true. That in 1995 the company was already using this land and was occupying it.

The first witness was Mr. Kamya who is the writer of the purported Will which gives the plaintiff this land in dispute. That Will was not witnessed. He knew Kamya. He is from his locality. That he doubted that Will, because it was not witnessed and it was merely thumb printed. The other witness was Namanya, he knew him. The evidence he gave was not true that he saw the crops that were damaged. This was because there was no Police action.

He further asserted that Namanya never summoned him in his LC that he damaged the plaintiff's crops. That the other witness was Jamillay Yasini, he knows her, but in 1997, she was barely 10 years; and so to come to court and give evidence; and yet their family migrated in 1990s and went to Bombo. That for her to know the suit land and matter relating to court was a great lie.

That by the time her father passed away she was not in good terms with Yasin Khamisi was his great friend. That Khamisi told DW1 that they were not in good terms; and therefore asked court to scrutinize the documents she brought to Court.

That the last witness was Igora, he knows him. He testified that Khamisi Yasin did not buy the suit land in issue, but claimed that he bought Luganga Mairu. He could not describe this land. His evidence was not clear. The claim the plaintiff brought to this court is not true.

During cross-examination by counsel for plaintiff, DW1 answered that it is not true that Jamillah is his girlfriend. She is his daughter; his friend Khaminsi died in 2001, he was abroad in UK in 2001 for some time of about 3 months. Within these 3 months, he did not talk to Khaminsi, Jamillah and in the 3 months he did not know whether she was staying with her father.

That he had not talk to Khamisi and was not be sure whether Khamisi and his daughter Jamillah had reconciled. They left Maluqulya their residence in 1990s and went to Bombo. That Namanya is a liar. It is true that he is the LC Chairperson. That since he bought the land in 1987, he has no grudge with him. He also has no grudge with him. He knew Igoola and that his evidence is irrelevant. He said that the land Yasin bought was a Luganga Mairu, he bought from Yasin this land.

That he knew where the land the plaintiff is claiming is. It is in Bwiza. He has a Master of Philosophy and didn’t know whether Khamisi was buying land in Bwiza. That it was Yasini who was buying the land. The registered proprietor is Yasini Khamisi, he looked at this title. That he cared to know the description of the land he was buying. It is situated at Malugulya, Khamisi was registered on this land title on the 8.8.1980. Part of the land he bought it at that time.

He availed Court with the documents where Yasin bought land before 1982. Igoola said he was the son of Igola Erusaniya Kiirya (vendor in the agreement of 1982). He bought this land in 1987. That by the time he bought it, there was a forest. They cleared the forest to plant trees. This is pine trees. He did not have a title; his lawyers searched and told him that this land had no encumbrances. He was not around at that time. He was around when the sale transaction was being entered. That day the seller had left the title at his home and he was to fly out the following day and he left the matter with his lawyers.

That the land was mortgaged, it was not mortgaged before he had bought it. It was mortgaged after he had purchased it; and was mortgaged to Sembule Bank. The mortgagor was Silvesteri Bideri. The mortgagee was Sembule Bank. It was Hajji Khamisi who gave Bideri this title. He signed the forged powers. That he saw them but he did not know when he signed it. That he will not agree with him that Khamisi is a fraudster. It was not proper for him to sell to him and again give Powers Attorney to another person.

That it is not true that this Khamisi defrauded him because it was DW1 that carried out the search. He did not talk to Namanya, the LCI Chairman of Bwiza in 1987 when he was buying the land. He never talked to Namanya the LCI, Chairman (counsel prayed to lock look at a transfer). He showed court the agreement he obtained as per DEX C. This exhibit No. 2 for the defendant was endorsed by a lawyer Mwaya Magezi and Waibale.

DW1 further averred that at the time he was paying for this land, it was not mortgaged. It was a clean land. That he only discovered that it was mortgaged after the death of Khamisi. The mortgage issue is under a High Court. That he is challenging this mortgage of this land in High Court vide Civil suit No. 61 of 2012.

In addition, that part of his family live. In UK so he used to visit periodically. He talked to the local chiefs when he was searching, he talked to the Parish chief of Bwiza Parish. LCII of Busambu Village LCIII of Namsagali Sub County. He talked to the LCI of Nalubulya during the time of the handing over of the land by to me. This was the Chairman LCI. The contents of these two documents (Exh. No.2 and Annexure "C) are the same. That at the time of the purchase, he was leaving the lawyer's chambers the following day he was leaving, so he got himself set and it had been endorsed by the lawyer and he found this sub squinty when he came back.

The second Defence witness was Isima Salongo Mugomba , a moslem, a male adult aged 48 years old, resident of Bukabi Zone, Bwiza Parish, Namasagali Sub County, Bugabula County, Kamuli District (herein after referred to as DW2). He knew the defendant as Mr. Mutyabule. He came to that village, but couldn’t recall the year he came to this Village. That he was borne on this village.

He testified in his evidence in chief that Mutyabule is on Maligulya and Bwiza Villages. That he knows him as a landowner. He didn’t know the year when Mr. Mutyabule came on these villages. That he moves around and doesn’t stay at Bukabi village only. That he was in Court to give light about the land of Mutyabule. That the late Opondo gave Yasin land. Yasin was a son in law of Opondo. He had married the Opondo's brother's daughter called Alifirida then Opondo gave them that land to look after their cattle from there.

That before this land was given to Yasin there was a grinding machine. This machine belonged to Ojuwa the brother to Opondo. He knew the claimant plaintiff as Bangi Robert; and heard about their land dispute and that the land in dispute is the land which Opondo gave away. The land is situated around a railway.

During cross-examination by counsel for plaintiff, he answered that he is 48 years born in 1961. He comes from Bukabi Zone. He knew Busambu village in Busambu village. Bukabi Zone in Bwiza Parish. He knew the Zone where the plaintiff comes from. He is from Bugulu Zone in Bwiza village; and they are from different zones and different villages.

That he stands by the story he has told Court how Yasin got this land. It might be it was in around 1977. Yasin got this land in 1977 from Opondo. That he was present at that time. This was at Bwiza. At that time there was no zones, he was personally present. That he couldn’t recall my age at that time, he was still young and he was not a relative of Opondo and was not related to Yasin. He was staying at his father's home not at Yasin's home; and was not staying in Opondo's home to0. Nothing was reduced into writing.

(The clerk reads for the witness). (The document agreement)

DW2 confirmed that he had heard it from Mutyabule; that he did not remember. He had never heard that and has ever heard about this document after Mutyabule had come on that village. That he knows this land, it is at Maligulya, Bwiza Parish, in Maligulya Village. The land he was talking about is different from this in this document. DW2 had never measured the size of the land he was talking about. They never mentioned the size of this land. He knew the plaintiff's land. He did not know its size, he knew how he got it; he acquired it from his father. His father's name is Kinta Kamara.

That the plaintiff was not borne from this village. He just came to look after his father Kinta Kamara who had no child. He is on the land which he got from Kinta Kamara. DW2 didn’t know what he is using it, he has his home there.

He didn’t know any other people who took Mutyabule in Court over this land. He knew Dauson Igunga, he died. Erusaniya Igola is his grandfather, he died; and he knew Yovan Igunga, he is the father of DW2’s wife. He did not know Ezekeri Mudumba, knows Yokoyadda Matovu, Kimuli Amisi, Goriyasi Waiswa and also knows Yunusu Mugurusi. They are all from that Parish, but different Zones.

He was not aware that his father in law and his grand -father sued Mutyabule owner this land. That he has never heard that Erusaniya sued Mutyabule and has never cultivated Mutyabule's land. Mutyabule has his house on this land, he stays there. This is Bugulu village.

In re-examination by counsel for the Defendant, he answered that Bangi came just to look after his father Kamara. He did not recall the year.

The third Defence witness was, Sami Opondo a male adult aged 67 years old, resident of Bugulu- Bulimira Zone, Bwiza parish, Namasagali Sub County, Kamuli District, (herein after referred to as DW3). He knew Mutyabule (Defendant) as his neighbor and came to know him since 1993 up to now (2015). He knew this person (claimant/plaintiff); and can tell court what he knows about this land.

He testified in his evidence in chief that his father Opondo Okum gave this land at first to Yasin and he knew only Yasin. That after giving him that land, he thinks Yasin sold it to Mutyabule; he was not present at that time and found when Mutyabule was the one on that land, so Mutyabule became his neighbor. That his brothers died. That the land in dispute is the land Opondo gave to Yasin. Opondo Okuna died in 1985. He was buried there where they are and he did not know the size of the land in dispute.

During Cross-examination by counsel for plaintiff, DW3 answered that his father gave Yasin land in 1987. This was at Bwiza, he was present. That there were many people present including Ogesa, Kaswaga, Tindifa, Yonosani Byamuka, those are the people he remembers. That even people from the Kamuli District also came. DC Odwori came together with his cabinet. They were many people.

That his father was grumbling with that Yasin; Yasin wanted to grab all their land and he was a soldier, so his father agreed with him and he gave him a piece of land. This was a matter of settling dispute. The giving was not voluntary but to settle the land dispute between them. He didn’t know the size of the land given to Yasin. It was not measured and they just divided the land; and he was present when these people came.

That they wrote some things. He didn't have a copy of what they wrote. He saw the bosses writing and for him, he was cooking for them. If someone came and said that there was no writing he might say a right thing. That he knew the land of Mr. Bangi. He is also his neighbor, he has grown up from there and he knew his parents. They were staying where Bangi is staying now, his parents were William Kintu and the late Margaret Oseno. Both are dead. By the time he saw Mr. Mutyabule coming to this land/village, Bangi plaintiff was already there.

DW3 came from this village today, sees him, he is an askari and he didn't know who brought him there. He is guarding Mutyabule's land and they are 3 askaris. Whenever he sees them each has a gun (a man with two guns in a photo is shown to court); and did not know where Mutyabule's home is. He cultivates this land.

That he was not present when Mr. Mutyabule was buying this land. He didn't know the size of the land Mutyabule bought and knows the boundaries of this land because is a borne of that area. One side he is boarding Maligulya then on my side we divide. His land does not cross to Maligulya. That he was borne when that boundary was already there.

The Defence closed its case.

The Locus in quo was vested on 24/06/2016. The full record of what transpired there is found in the file, but was not typed. Be that as it is, it reveals that about 51 attended and a sketch plan was drawn.

Having summarized all the evidence as led before the trial Court, as availed to me in the certified record of the lower court, the Judgement and orders made therein; I have also reevaluated all the evidence presented before the lower court.

In the first place, I have arrived at the following uncontested evidence:-

Original Owner of the suit land

The evidence led by both parties, reveals that the original owner of the suit land comprised in LRV 1089 Folio 17, land at Malugulya, Busoga, Area Approx. 81 Hectares is disputed. The Appellant claimed that it had belonged to his ancestors of the Baise Igulu clan and had been occupied by his ancestors; among whom was Munyegera who passed it to Kamara, who passed it to his father Kintu and 1990. That Kintu passed it over to him as a gift inter vivos, later confirmed the Will of his father who died in 1998. He relied on Exhibit PEX2, which he purported to derive ownership of the suit land from and he described it as a kibanja.

On the other hand, the Respondents contended that it belonged to was Haji Yasin Khamisi who transferred it to Annesworth Guest House as per Exhibit DEX2.

On page 6 of the record of proceedings line 43, PW1 during cross-examination places Hajji Khamisi Yassin on the suit land when he stated “Yasin has ever been a resident of Maligalwa”. The Appellant who appeared as PW1 claimed that he was not aware that the suit land had been titled as far back as 8.8.1980, in the names of Haji Yasin Khamis.

The Appellant’s own witnesses PW4 Nabukenya Gerald, a Senior Legal Officer with Bank of Africa testified that the registered owner of that land comprised of LRV 1098 Folio 17 located in Malugulya village-Namasagali was Haji Kaminsi Hasini. PW4 on page15 of the record of proceedings lines 14 -19 stated that;-“.....I don’t know the Plaintiff. I have ever stayed with the Defendant; he is the owner of Annes worth Hotel in Jinja. I was sent as a witness to tell court where LRV 1098 Folio 17 is. The registered owner of that land was Haji Kaminsi Hasini and according to the records of the bank, he gave powers of attorney to Bideli Lubaya R.Syhes to author’s heir to obtain a loan from Sembule Bank then a legal instrument with Mutyabule was executed”

His other witness PW5 Jamilu Hassin, who claimed to know him very well referred to him as a ‘squatter’ where they live; and he also confirmed that the land is for their father Hasin Kaminsi, deceased, who died in 2001. PW5 on page 16 of the record of proceedings in line 41 during cross-examination in lines that;-“My father Hasin Kaminsi had told me he had mortgaged the title through Sylvester Bideri through Powers of Attorney”.

The same goes for his other witness PW6 Ogoola Stephen, a Kisoko Chief who claimed to know the land in dispute. He also confirmed that it is his father the late Elusania Igoola who died in 2008 who sold it to Yasin. PW6 on pages 17 of the record of proceedings line 21-24 testified for the Plaintiff that;-

“The land in dispute, I know it, it’s my father who sold it to Yasin. My father is late Elusania Igoola died in 2008. The land borders Plaintiffs land on the swamp, Mutasa’s land is upwards. My father sold the swamp to Lugangaimalira to Yasin only.”

PW6 further testified during cross-examination on page 17, lines 29-32 of the record of proceedings that;-

“I was not present when my father sold that land. I got to know in 1982 when Yasin started utilizing the land . I hear Yasin hired the suit land to Mutyabule, the one of the swamp...”

All the above evidence of witnesses for the Appellant is a direct contradiction to his own testimony. A critical analysis of the above is confirmation that as far back as 8.08.1980, the land in dispute was titled as LRV 1089 Folio 17, Land at Malugulya, Busoga, Area Approx. 81 Hectares was in the hands of Haji Yasin Khamisi. This was long before the Plaintiff/ Appellant was ever allegedly gifted the suit land by his father Kintu in 1990.

From the above-uncontroverted evidence, the only logical finding I have arrived at is that by the time the Appellant laid any claim on the suit land, it was already registered land to Haji Yasin Khamis.

Secondly, DW1 presented agreement dated 19/12/1982; which indicated proprietary interest of Yasini Kamisi acquired from Erusaniya Kirya Igoola to whom the title to the land title was first issued. The transaction between Yasini Khamisi and Erusana Igoola was sealed by executing the said Sale Agreement witnessed by several people.

Haji Yasin Khamis was possessed with a Certificate of Title issued vide an Instrument of Transfer of land dated 14^th/1/1987 marked as DEX2. On page 6 of record of proceedings line 46, PW1 stated “I have ever looked a copy of the alleged title. I think he title is forged”.

A critical look at the Plaint does not reveal that the Appellant never pleaded fraud on the part of Haji Yasin Khamis or the Defendant/ Respondent in this case for that matter. Since it is clear that the Appellant never challenged the Certificate of Title for Hajji Yasin Kaminsi, and he has never sued Haji Yasin Kaminsi and never pleaded fraud, he is bound by his pleadings and is barred from raising it during trial.

My findings at this point are that PW1’s claim of the suit land is based on mere speculations, he is not even sure when his own father Kintu came to lay claim on the suit land. This is manifested in line 4 of the record of proceedings on pg. 3-5 he stated that;-

“I was told by my father how the ownership of the land had been moving. In 1985, I should have been in the disputed land because I was born there and have stayed there up to date.”

PW2 Benon Namanya, the LC I Chairman, Bugulu-Bulima zone who supported him was clear that he only gave the Appellant a letter referring him for further management of his land dispute, which was marked and exhibited as PEX1.

Section 101(1) of the Evidence Act places the onus to prove his interest in the suit land on the plaintiff. My findings on this point are that the Appellant failed to lead any convincing evidence of his claims to the suit land.

On the other hand, Section 59 of the Registration of Titles Act Cap 230 provides that;

“No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate, and every certificate of title issued under this Act shall be received in all courts as evidence of the particulars set forth in the certificate and of the entry of the certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power.”

Again, the Registration of Titles Act, under S.64 (1) provides that the estate of registered proprietor is paramount. It reads that:-

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant or otherwise, which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the operation of this Act shall, except in the case of fraud, hold the land or estate or interest in land subject to such encumbrances as are notified on the folium of the Register Book constituted by the certificate of title, but absolutely free from all other encumbrances, except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title, and except as regards any portion of land that by wrong description of parcels or boundaries is included in the certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser”.

A title deed is indefeasible, indestructible or cannot be made invalid save for specific reasons listed in sections 64, 77, 136 and 176 of the Registration of Titles Act, which essentially relate to fraud or illegality committed in procuring the registration. In the absence of fraud on the part of a transferee, or some other statutory ground of exception, a registered owner of land holds an indefeasible title.

Learned counsel for the Appellant put up spirited arguments that the Appellant had acquired the suit land from his ancestors, but apart from him stating so, he miserably failed to adduce any convincing evidence to prove his claims.

In view of the above, I cannot therefore fault the Learned Trial Magistrate on invoking section 59 and 176 (c) of the RTA. The Appellant cannot blame his ignorance about the Certificate of Title of the Respondent on anyone. The fact that the Respondent bought the suit land from Hajji Yasini Khamisi is not in dispute.

As to whether the Respondent did so in his own names or it was purchased by the Company Annesworth Guest House in 1985 as per Instrument of Transfer of land dated 14^th/1/1987 marked as DEX2, does not make the Title invalid in any way.

The parties should not lose focus of the fact that what was in issue before the trial court was not the Certificate of Title of Hajji Yasini Khamisi or its legality or date of acquisition, but a claim based on trespass seeking a declaration that the Appellant is the lawful occupant of land located in Bwiiza Village, Namasagali, Kamuli District; an injunction; order for compensation and costs of the suit.

In view of the above, and the evidence led before the Trial Court, which I have reevaluated, I find the arguments of learned counsel for the Appellant based on mere speculations, which can only be termed as a fishing expedition.

Learned counsel for the Appellant also submitted on the description of the suit land; however, I agree with learned counsel for the Respondent that this was clearly described in the sale agreement of 19/12/1989 as follows; “neighbors Kabaliya, passing Kisenyi Lugangamaira which separates Maligulya from Bwiiza, and neighbors also Yekosia Isabirye and Opondo Okumu. The lease hold Certificate of Title, Village and measuring approximately 81 hectares”.

The Certificate of Title admitted as DEX2 has the description of the suit land; and has never been challenged by the Plaintiff /Appellant in his evidence. Although the suit land has never been transferred into the Companies name, I wish to point out that this is not a subject of this case.

Further, the findings at locus cleared the actual location of the land in dispute on the ground; so whether it was called Luganga in Mairu wetland or Mulugulya Village, or Bugulu, Bwiza Village, both sides agreed that it was the correct suit land in dispute.

My conclusions are that the evidence led before the Trial Court and the arguments by learned Counsel for the Respondent are convincing on balance of probabilities that the suit land does not belong to the Appellant. In the absence of any other evidence to the contrary, it is my finding that the Respondent led enough evidence to convince the Trial Court and this Honourable Court that he derived his Certificate of Title from Hajji Yasin Khamis who lawfully bought the same from Erusana Igoola.

Secondly, while the Appellant claims the suit land as a gift inter vivos from his late father Kintu in 1990; a critical analysis of the evidence confirms that the alleged doner his father the late William Kintu from who never wrote any gift deed document donating the suit land or any part of the suit land to him. Instead, he is relying on his own oral testimony and his witnesses. I have critically analyzed the evidence of his witnesses earlier in this Judgement, and found that save for PW3 who allegedly wrote his father’s Will confirming the gift, the others did not in any way confirm that the suit land and was given to him.

The law governing what qualifies to be a legally recognized gift inter vivos is well settled. Both learned counsel submitted on it. I only wish to elaborate that a gift inter vivos is defined in Black’s Law Dictionary 8^th Edition at page 710 as “a gift of personal property made during the donor’s life time and delivered to the donee with the intention of irrevocably surrendering control over the property”.

The above was elaborated upon in the case of Sajjabu John vs Zziwa Charles, that a gift inter vivos was defined in Halsbury’s laws of England Vol.18 pp.364 para 692 as:-

“The transfer of any property from one person gratuitously while the donor is alive and not in expectation of death. It is an act whereby something is voluntarily transferred from the true possessor to another person with full intention on the part of the receiver to retain the thing as his own without restoring it to the giver.”

Further, in Joy Mukobe vs. Willy Wambuwu HCCA No. 55 of 2005 relying on other decided cases, court held that for a gift inter vivos to takes irrevocable roots, the donor must intend to give the gift, the donor must deliver the property and the donee must accept the gift.

Also in George William Kalule vs Norah Nassozi & another Civil Appeal No. 29 of 2014 while faced with a similar case like the instant one and observed that;“…on the facts of this case we find that the late Benalikaki had given as a gift inter vivos the two acres of land to the appellant long before he died and as such it could not have formed part of his estate upon his death.” the court of Appeal further observed that; “It is trite law that for a gift of personal property to be complete and irrevocable, the following condition must exist; the donor must intend to give the gift, the donor must deliver the property to the done, the donnee must accept the gift and take possession of it. In this case, all the above conditions were satisfied.”

The law also provides that a gift inter vivos takes effect when the conditions are fulfilled as well established in Ovoya Poli vs Wakanga Charles HC Appeal No. 13 of 2014 wherein a gift was defined to mean a voluntary transfer of personal or real property without consideration. It involves the owner giving with or without pecuniary consideration; and is essentially a voluntary conveyance of land of transfer of goods from one person to another, made gratuitously and not upon any consideration of blood or money. It has therefore been legally defined as the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called donor to another called done and accepted by or on behalf of the donor.

Further in the same case at common law, the essential requisites of a valid gift are;

1. Capacity of the donor.

2. Intention of the donor to make a gift, absence of consideration completed delivery to or for the done.

3. The donor and acceptance of the gift by the donee.

4. The donor of the gift must have had a present intent to make a gift of the property at the done.

5. Transfer of the gift must be delivered to the done; and the done must accept the in order for transfer to take place.

See also Bulukidda and 3 others vs Kakembo Sulaiman HCT-06-LD-CA-0034-2018 (Arising from Civil Suit No. 081 of 2010) by this very court.

I have analyzed the submission of learned counsel for the Appellant on this ground, and concluded that the lack of documentary evidence by the Appellant was just one point in a series of inconsistencies in his evidence. PW1 alleged that he was handed over land, but it is clear that none of his witnesses was present when he was being handed the land. As rightly, found by the learned trial Magistrate, hearsay evidence is not admissible and even without that, his evidence is not convincing at all.

Although learned counsel for the Appellant concluded that from the testimony of PW1, he proved elements of a gift inter vivos, I do not agree with his reasoning, since there is uncontroverted evidence proving otherwise. This further confirms that the Appellant could not have met the two criteria of accepting and being delivered/handed to the land or being in position to take possession of the alleged gift.

Turning to the purported Will as testified by PW3 Kanya James who testified that the late Kintu William used him to write a Will in 1989; he only purports to be the author thereof and came with the purported copy of the Will exhibited and marked PE2. PW3, however did not know the size of the suit land.

A critical analysis of this purported Will reveals that the said document does not legally qualify as a valid Will. Although the copy on record reveals a thumbprint, it was not witnessed, as required by the section 50 of the Succession Act (as amended); and was never proved in Court by way of Grant of Probate. I therefore agree with the submissions of learned counsel for the Respondent that PE2 fails miserably to meet the criteria of a valid Will.

It is also clear that the purported Will does not in any way indicate the location of the unregistered land that Kintu was willing to his son, the Appellant; as such, it will be just speculation to conclude that it was referring to the suit land.

Although learned counsel for the Appellant elaborately argued that the suit land was not included in the Will because it had already been given out by the Appellant's father Kintu as a gift inter vivos to his son Bangi Robert; this piece of evidence is not based on the Appellant’s evidence or any of his witnesses, but is evidence from the bar. This is inadmissible and I reject it with the contempt it deserves.

On the other hand, I agree with the observations of the learned trial Magistrate at page 6 of her Judgement as cited by learned counsel for the Respondent.

I therefore find that as rightly found by the Learned Trial Magistrate, apart from failing to adduce valid written proof or evidence of such gift deed made by his late father William Kintu to the Appellant, there is no other evidence that any effectual gift was made to the Appellant in this case since the purported Will is equally invalid.

In conclusion, I’m in agreement with the submissions of learned counsel for the Respondent having confirmed that there is no iota of evidence that passed the test of a gift inter vivos in law or a valid Will for that matter. It is therefore my finding and decision that the Appellant’s claims fail. Instead it is my finding that the Respondent obtained valid title for the suit land from one Haji Yasin Khamis way back in the 1980s.

This ground of Appeal FAILS.

GROUND 1: That the learned trial Magistrate erred in law and fact when she held that the Respondent is not a trespasser on the suit land.

It was submitted by learned counsel for the Appellant it is trite law that trespass occurs when a person directly enters upon another's land without permission or other lawful cause and remains upon the land, places or projects any object upon the land and thereby interferes with another person's lawful possession of that land as it was held in the case of Justine E.M.N Lutaaya v Stirling Civil Engineering Company S.C Civil Appeal No. 11 of 2002.

The Appellants argued that for one to succeed in the case of trespass to land, he /she must prove the following

1. That the disputed land belonged to the plaintiff.

2. That the defendant had entered upon it.

3. That the entry was unlawful in that it was made without permission and

4. That the defendant had no claim, right or interest on the land.

That these grounds were stated in the case of Sheikh Muhammed Lubowa v Kitara Enterprises Ltd Civil Appeal No.4 of 1987.

That PW1 Bangi Robert testified during his examination in chief that he acquired suit land by way of gift inter vivos from his father Kintu in 1990 and thereafter he took possession of the suit land. PW2 Benon Namaỳa at page 8 line 4-6 of the record of proceedings testified that the plaintiff/ Appellant had cultivated his maize on one acre and a half, millet on one acre, tress which the slashed and cut down burning charcoal respectively. The Appellant argued that this is clear evidence that the suit land belonged to the plaintiff/ Appellant and he was in possession of it.

It was also the evidence of PWI Bangi Robert at page 5 line 3-5 of the record of proceedings that the Respondent entered on the suit land in 1995. This was also supported by the evidence of PW11 at page 8 line 1 and 2 of the record of proceedings when he stated that "This started when the Mutyabule encroached on the Plaintiff's land in 1995. He brought people and settled them in the disputed land, the people were not known to me."

That this entry was unlawful as it was without the permission of the Plaintiff/ Appellant. They therefore submitted that Learned Trial Magistrate erred in law and fact when she held that that the respondent is not a trespasser on the suit land and invited court to exercise its powers as enshrined under section 80 of the Civil Procedure Act to subject the evidence at trial to a fresh review and draw its own conclusion.

They prayed that this appeal be allowed, Judgment and Orders of the Learned Trial Magistrate be set aside.

In reply, Counsel for the Respondent agreed that the issue of trespass the learned trial magistrate quoted the case of E.M.N Lutaya vs Stirling Civil Engineering SCCA No.11 of 2002) where it was stated thus;

"Trespass to land occurs when a person makes an un authorized entry upon land and thereby interferes or portends to interfere with another person's lawful possession of that land, needless to say the tort of trespass to land is committed not against the land but against the person Who is in actual or constructive possession of the land, the cardinal rule Is that only person in possession of the land has capacity to sue in Trespass

Trespass to land occurs when a person directly enters upon another's land without permission and remains upon the land, places or projects any object upon the land (see Salmond and Heuston on the Law of Torts, 19 edition (London: Sweet & Maxwell, (1987) 46). It is an action for enforcement of possessory rights where if remedies are to be awarded, the plaintiff must prove a possessory interest in the land. It is the right of the owner in possession to exclusive possession that is protected by an action for trespass.

Trespass is an unlawful interference with possession of property. It is an invasion of the interest in the exclusive possession of land, as by entry upon it. It is an invasion affecting an interest in the exclusive possession of property. The cause of action for trespass is designed to protect possessory, not necessarily ownership, interests in land from unlawful interference. Therefore an action for trespass may technically be maintained only by one whose right to possession has been violated.

The gist of a suit for trespass to land is violation of possession, not a challenge to title. Such possession should be actual and this requires the plaintiff to demonstrate his or her exclusive possession and control of the land. The entry by the defendant onto the plaintiff's land must be unauthorized in the sense that the defendant should not have had any right to enter onto plaintiffs land. In order to succeed, the plaintiff must prove that; he or she was in possession at the time of the defendant's entry; there was an unlawful or unauthorized entry by the defendant; and the entry occasioned damage to the plaintiff.

Although characterized as an action for trespass to land, the suit before court in these proceedings is in the character of an action for recovery of land as the plaintiff/Appellant has never used the disputed land. They seek to enforce ownership rights as opposed to possessory rights. A suit for recovery of land is in essence an assertion of a right to enter into possession of the land, which then necessitates proof of ownership of the land.

That being a suit for recovery of land, it was critical for the plaintiff to prove the validity of his title since actions for recovery of land are premised on proof of a better title than that of the person from whom the land is sought to be recovered. Ownership comprises of a number of rights, and among these rights one of the most significant right is p0ssession of property. Possession is prima facie evidence of ownership and the law always protects the right to possession.

If someone is in possession and is sued for recovery of that possession, the plaintiff must show that he or she has a better title. If the plaintiff does not succeed in proving title, the one in possession gets to keep the property, even if a third party has a better claim than either of them (see Ocean Estates Ltd v. Pinder (1969] 2 AC 19). Where questions of title to land arise in litigation, the court is concerned only with the relative strengths of the titles proved by the rival claimants. Consequently, the plaintiff must succeed by the strength of his or her own title and not by the weakness of the defendant's.

And in the case of Kampala District land Board and Chemical Distributors vs National Housing and Construction Corporation SCCA No.2 of 2004 it was held thus;

"Possession is good against all the world except the person who can show a good title (see Asher vs Whitlock (1865) LR1 QB, per cock burn CJ at5 that possession can be terminated by any person with better title to the land"

That the plaintiff/Appellant in the present case clearly was not in possession of the suit land, though he alleged that the defendant and nine others entered on the land and destroyed his property no such evidence in form of a police report or photographs were presented, the trial magistrate in her Judgement at page 7 clearly points out what was observed at locus to wit;

1. The plaintiffs home is not on the suit land

2. The Defendant is in active possession of the suit land

3. No boundaries on the suit land the plaintiff showed swampy water logs as boundary

4. The suit land is estimated approximately 40-50 acres

5. The defendants farm houses are on the suit land

6. No graves on the suit land

7. Both parties Confirmed neighbors to the suit land.

From the above it is evident that the plaintiff /Appellant was not in possession of the suit land it was instead the defendant who is a director of Annesworth Guest House Ltd. That was confirmed to be using the suit land, no concrete evidence was led to show that the Appellant ever occupied the suit land, the house and graves which the Appellant had alluded to be on the suit land were confirmed to be on a different piece of land which was not in dispute, no evidence was led to show that the Defendant entered the land illegally, the defendant presented sale agreement, Certificate of tile and transfer form in support of his possessory rights which documents were not discredited in any way on the other hand the plaintiff presented nothing to support his claim.

Clearly, that the plaintiff had no cause of action in trespass as he was not in possession, more so the compensatory claims were time barred as they were presented after six years from the time of alleged trespass 1995, the Appellant failed to prove ownership of the suit land and the learned trial Magistrate rightly held that the defendant was not a trespasser on the suit land. They thus prayed that the Appeal be dismissed with costs.

In rejoinder, learned counsel for the Appellant submitted that the Respondent submits that on Page 9 of his written submissions that "Although characterized as an action for trespass to the land, the suit before court in these proceedings is a character of for recovery of land as the plaintiff/Appellant has never used the disputed land. They seek to enforce ownership rights as opposed to possessory rights, A suit for recovery of land is in the essence an assertion of right to enter into possession of the land, which then necessitates proof of ownership of the land.'"

The Respondent also submits on page 10 of his written submissions that the Appellant/Plaintiff was not in p0ssession of the suit land and it was the defendant who owns the director of Annesworh guest house that was confirmed to be using the suit land...."

First of all, that it is not true that the suit before this Honourable Court is for recovery of land. Secondly as already submitted above, they disputed the Respondent's ownership of land since the documents he relied have many inconsistencies and irregularities and also they describe a different piece of land from the Appellant's land. They cited the case of Odyeki & Anor v Yokanani & 4 Ors Civil Appeal No.9 of 2017 which in fact defines what an action for recovery of land is he goes on to state that:-

"An action for the recovery of land is the modern equivalent of the old action of ejectment (see Bramwell v. Bramwell, [1942]1 K.B. 370). It is action by which a person not in possession of land can recover both possession and title from the person in possession if he or she can prove his or her title.".

That the Plaintiff/ Appellant does not seek to recover possession and title from anyone in this case, but instead asserts that the respondent interfered with his possession by indirectly entering his land without his permission.

As regards trespass, it was stated in the case of Justine E.M.N Lutaaya v Stirling Civil Engineering Company (supra), trespass occurs when a person directly enters upon another's land without permission or other lawful cause and remains upon the land, places or projects any object upon the land and thereby interferes with another person's lawful possession of that land.

In the case of Odyeki & Anor vs Yokanani & 4 Ors (supra), the trial Judge stated that:-

“In order to disclose a cause of action of the tort of trespass to land, the plaintiff had to plead facts to show that; (a) he was in possession unlawful or at the time of the entry complained of; (b) there was an unauthorized entry by the respondents; and (c) the entry occasioned him damage”.

That clearly, the Appellant was in exclusive possession and control of the suit land before the respondent’s unauthorized entry. That PW1 Bangi Robert testified on page during his examination in chief on page 5 of the record of proceeding that he acquired suit land from his late father Kintu William in 1990, and thereafter he took possession of the suit land.

PW2 Benon Namaya at page 8 line 4-6 of the record of proceedings testified that the plaintiff/Appellant had cultivated his maize on one acre and a half, millet on one acre , tress which the slashed and cut down burning charcoal respectively.

It was also the evidence of PW1 Bangi Robert at page 5 line 3-5 of the record of proceedings that the Respondent entered on the suit land in 1995. This was also supported by the evidence of PW2 at page 8 line 1 and 2 of the record of proceedings when he stated "this started when the Mutyabule encroached on the plaintiff's land in 1995. He brought people and settled them in the disputed land, the people were not known to”.

They therefore submitted that had the learned trial Magistrate properly evaluated evidence on record, she would have come to the logical conclusion that indeed the respondent was a trespasser on the land. They prayed that Court resolves this ground in favor of the Appellant and allow this Appeal with Costs.

In resolving this issue, I have defined Trespass to land by Halsbury’s Laws of England 3^rd Edition Vol. 38 as: -

“Trespass to land is unauthorized entry upon land. A trespasser gives the aggrieved party the right to bring a civil law suit and collect damages as compensation for the interference and for any harm suffered”.

This is re enforced in para 1205, Volume 38, Halsbury’s Laws of England, 3^rd Ed where it is provided that: -

“Trespass to land is committed inter alia where a person wrongfully or unlawfully sets foot upon, or takes possession of, or takes materials from, land belonging to another person.”

The law on trespass to land was well articulated; it was stated in the case of Justine E.M.N. Lutaaya vs. Stirling Civil Engineering Company Civil Appeal No. 11 of 2002 (SC) as follows:

“Trespass to land 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. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass.” (Emphasis mine).

Citing with approval the case of Wuta-Ofei v Danquah (1961) 3 All E.R.596 at p.600, his lordship held that for purposes of the rule cited in Justine E.M.N. Lutaaya vs. Stirling Civil Engineering Company (supra), possession did not mean physical occupation; rather, the slightest amount of possession would suffice. In Wuta-Ofei v Danquah (supra) the Privy Council put it thus:

“Their Lordships do not consider that, in order to establish possession, it is necessary for the claimant to take some active step in relation to the land such as enclosing the land or cultivating it.”

Further in Justine E.M.N Lutaaya v Stirling Civil Engineering Company (supra) Hon. Mulenga JSC held that:-

“Trespass to land 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”.

Trespass to land therefore occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land. A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on land. It will lead to a new cause of action each day for as long as it lasts as was held in Holmes v. Wilson and others (1839) 10 A&E 503.

I have also relied on the case of Ocean Estates Ltd vs Pinder [1969] 2 A.C 19 it was held that; “Where the owner is suing a person allegedly in possession, even the slightest acts by the owner indicating his or her intention to take possession are enough to maintain the action. This is analogous to saying that the Defendant’s cannot sustain his claim against the Plaintiffs regardless of whether or not he was in actual possession of the suit land”.

Again in Bumbakali vs. Muhairwe & Others Civil Suit No. 36 of 1999, court observed that trespass to land consists of any unjustifiable intrusion upon or interference with the land in possession of another and can be one of the following:

1. Entering upon a land in possession of another without permission.

2. Remaining on land entered with permission after request to move has been made (e.g. being sent away by a property owner and you refuse to go away, it is trespass to land).

3. Placing or throwing away any object upon it without any lawful justification.

Further, in order to succeed on Trespass to land, the Court of Appeal in Sheikh Muhammed Lubowa vs. Kitara Enterprises Ltd CA No. 4 of 1987 observed that one must prove;

• That the disputed land belonged to the Plaintiff

• That the Defendant had entered upon it, and

• That entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the disputed land.

Further, in the case of John Katarikawe vs. William Katwiremu [1977] HCB 210 at 214, Byamugisha J. (as she then was) observed that interests in land, in particular, include registered and unregistered interests. Further, in Ojwang vs. Wilson Bagonza CACA No.25 of 2002, Byamugisha J further observed that for one to claim an interest in land, he or she must show that he or she acquired an interest or title from someone who previously had an interest or title thereon.

In respect of this ground, the Appellant PW1 claimed that the Respondent trespassed on his land in 1995 and destroyed his crops. The only witnesses among the six he brought who seemed to support his claim were PW2 and PW3; but even then, none of them led any evidence of his ownership or possession of the suit land. PW2 only alluded to his having grown some crops thereon and reporting a case to him which he referred; while PW3 only came with a purported Will that has been found to be invalid.

Although the Appellant alleged in his evidence in chief that he was on the land since 1990 or even before that date with his father, then it follows that by that time, he knew Igoola who sold to Hajji Yasin Khamis.

To prove possession, DW1 tendered in documents of Application Forms for rural land in North Busoga dated 10.1.1997 dated 1.4.1976; Inspection Report on application dated 10.1.1977; Lease Form Offer dated 11.1.1977; Survey Status dated 14.9.1976 and Form from the Office of Title bearing the description of land applied for dated 4.10.1980 which were all marked as DEX-1 of Instrument of Transfer dated 14.1.1987 and the same were admitted on court record as; DEX-2.

It is therefore evident that by 1990 when the Appellant claims to have been gifted with the suit land by his father William Kintu, Hajji Yasin Khamis had long processed the documents that legally made the suit land his. I have not found any contrary evidence to prove that he was not in physical possession of the land.

The Appellant’s claims of being in physical possession are further defeated by his own witnesses who referred to his father as a ‘squatter’ on Hajji Yasin Khamis’s land.

Be that as it is, I have also explored the possibility of the appellant falling under the common law doctrine of proprietary estoppels. This doctrine was expounded widely in the case of Wayi Atilio & Anor vs Elvira Ojali C.A No. 0023 of 2009 by the Hon. Justice Stephen Mubiru relying on the case of Crabb v Arun District Council [1976] 1 Ch.183, where Lord Denning explained the basis for the claim as follows:-

“The basis of this proprietary estoppel, as indeed of promissory estoppel, is the interposition of equity. Equity comes in, true to form, to mitigate the rigors of strict law.”

The above means that a claimant will be prevented from insisting on his strict legal rights, whether arising under a contract, or on his title deeds, or by statute, when it would be inequitable for him to do so having regard to the dealings, which have taken place between the parties. It is also illustrated in the case of Ramsden v. Dvson (1866) L.R. 1 H.L. 129, thus;

“If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake to which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.

My brother Hon. Justice Mubiru in Wayi Atilio & Anor vs Elvira Ojali (supra), was of the view that this doctrine is an equitable remedy, which will operate to prevent the legal owner of property from asserting their strict legal rights in respect of that property when it would be inequitable to allow him to do so. As is shown in Crabb vs Arun District Council, one aspect of modern proprietary estoppel is that it can be used as a cause of action, rather than just a defence contrary to the well-known mantra that estoppel may be used as a shield, but not a sword.

He argued that the doctrine is founded on acquiescence, which requires proof of passive encouragement. Megarry and Wade’s The Law of Real Property (8^th Edition) at pages 710 to 711, para 16-001 summarizes the requirements in relation to proprietary estoppel as follows:-

“...Acquiescence can only be raised against a party who knows of his rights”. As Lord Diplock put it in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, 884 thus:

The party estopped by acquiescence, must at the time of his active or passive encouragement, know of the existence of his legal right and of the other party’s mistaken belief in his own inconsistent legal right. It is not enough that he should know of the facts which give rise to his legal right. He must also know that he is entitled to the legal right to which these facts give rise.

“He further explained...The essential elements of proprietary estoppel are further summarized in McGee, Snell’s Equity, 13 ed. (2000) at pp. 727-28, as follows: an equity arises where:

(a) the owner of land (O) induces, encourages or allows the claimant (C) to believe that he has or will enjoy some right or benefit over O’s property;

(b) in reliance upon this belief, C acts to his detriment to the knowledge of O; and

(c) O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive.

It will be observed from the above summary that to rely on such equity, two things are required, first; that the person expending the money supposes himself or herself to be building on his or her own land; and, secondly, that the real owner knows that the land belongs to him and not to the person expending the money in the belief that he is the owner.

Relating the above doctrines to the instant case, the Appellant’s claims to have become aware of the Respondent’s activities on the land in 1995; this was 15 years after the Respondent acquired title on the suit land. I find this self-defeating in view of the fact that this state of affairs is not backed by any evidence. It is also clear that if at all his late father was in possession of the suit land, then he should have been aware of its being surveyed and a title created. There is however strong evidence of acquisition and possession of the suit land by Hajji Haruna Khamis which is more believable.

Again, the law provides that the dealing with property already in the possession of another would have required the consent of the lawful registered proprietor of the suit land, but it is clear that the Appellant or his father before him never did that. The evidence of the Appellant does not in any way point to the fact that he had consent from the registered proprietor Haji Kaminsi Yasini. As rightly submitted by learned counsel for the Respondent, he feigned ignorance of the existence of title on the suit land; and alleged that it is forged though he never sued Haji Kaminsi and never pleaded fraud.

With the evidence above, I cannot therefore fault the decision of the learned Trial Magistrate who found so.

As to whether the Appellant qualifies as a lawful occupant.

Section 29(1) of the Land Act Cap 227, which defines a lawful occupant as-

(1) “Lawful occupant” means—

(a) a person occupying land by virtue of the repealed—

(i) Busuulu and Envujjo Law of 1928;

(ii) Toro Landlord and Tenant Law of 1937;

3. Ankole Landlord and Tenant Law of 1937;

(b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or

(c) A person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate”

The evidence in this Appeal reveals that the Appellant‘s occupation of the suit land does not fall in either of the foregoing and that he maintained throughout his evidence that his alleged kibanja is on the land of Haji Kaminsi Yasini. The Appellant’s evidence shows a lot of inconsistencies as to his acquisition and alleged occupation of the suit land and it was challenged by his own witnesses.

John T Mugambwa in Principles of Land Ownership in Uganda on page 60 para 2 that: -

“…in circumstances where all rival claims are equitable interests, the rule, variously stated is that where equities in all respects priority of time is given a better equity”.

The above notwithstanding, the Appellant’s acquisition of the suit kibanja was also unlawful having occupied the same without consent of the landlord.

Section 34 (3) of the Land Act(as amended) that;

“(1) A tenant by occupancy may, in accordance with this section, assign, sublet, pledge, create third party rights in, subdivide and undertake any other lawful transaction in respect of the occupancy.

(2) A tenancy by occupancy may be inherited.

(3) Prior to undertaking any transaction to which subsection (1) refers, the tenant by occupancy shall submit an application in the prescribed form to the owner of the land for his or her consent to the transaction.

………..

(9) No transaction to which this Section applies shall be valid and effective to pass any interest in land if it is undertaken without consent as provided in this section, and the recorder shall not make any entry on the record of any such transaction in respect of which there is no consent”

It is clear in this case that the Appellant was not introduced to the landlord to obtain the consent as required by law; he did not know that it was important to seek the prior consent of the landlord. Since there was no taking the essential steps of obtaining the consent of the registered proprietor by the Appellant, this offended the provisions of section 34 (3) of the Land Act (as amended).

The alleged encroachment on a kibanja by the Respondent was not established; and therefore no trespass was proved, no evidence to show how far and to what extent the Respondent had encroached on the Appellant’s kibanja between 1975 and 1983 was led. This means that the Appellant could not be adopted as a bonafide as per the 1995 Constitution (as amended) and Land Act (as amended).

Further, it is clear that the Appellant’s claim cannot succeed because it clearly falls outside the period envisaged in the law that is for 12 years or more before 8^th October 1995, since he places his possession/occupation in 1990.

Having carefully revaluated and analyzed the evidence as presented to me and the submissions of both sides, I have found that the Appellant/plaintiff although he claims to have been in possession, does not qualify as a lawful occupant. It also follows that the assertion by the appellant/plaintiff that he was in possession as a tenant was not supported by any cogent evidence and doesn’t hold any water.

As already stated in this judgment (supra), the burden of proof in civil case rests on the one who asserts a fact. This was emphasized in the case of Kalemera Godfrey and two others vs Unilever Ltd and another HCCS. No. 1181 of 1997M (unreported). In this case, it was therefore incumbent on the plaintiff /appellant in the lower court to prove trespass by the defendant/ respondent on his kibanja. Although the case of Kampala District Land Board and Anor v National Housing and Construction Corporation (Civil Appeal No.2 of 2004) [2005] UGSC held that whoever purchases a registered interest in the land, buys subject to all the available unregistered interests on the land; in this case, the evidence of the Appellant falls short of proving that.

Further, while the plaintiff/appellant claimed to have had prior occupation of the suit kibanja, it was apparent that both PW2 and PW3 who were the only witnesses supporting his claim did not know the size of the land, although they claimed to know the boundaries thereof. Since the burden of proof lay on the Appellant/Plaintiff to adduce satisfactory evidence to prove that the Respondent was a trespasser and he failed to do so, this court cannot hold so where no satisfactory evidence has been adduced by the party who wants court to believe him.

I therefore agree with the submissions of learned counsel for the Respondent on the land tenure system that prevailed at the time; and my own findings are that the Appellant does not qualify as a lawful occupant on the suit land by the time the Respondent bought it.

In conclusion, my decision is that the Appellant has failed to prove this Ground of Appeal as well. On the other hand, the Respondent has succeeded in defending this ground of Appeal and I see no valid reasons to interfere with the decision and Orders of the learned Trial Magistrate. They therefore remain valid.

Finally, it is now well-established law that costs generally follow the event. See Francis Butagira vs. Deborah Mukasa Civil Appeal No. 6 of 1989 (SC) and Uganda Development Bank vs. Muganga Construction Company (1981) HCB 35.

Indeed, in the case of Sutherland vs. Canada (Attorney General) 2008 BCCA 27, it was held that courts should not depart from this rule except in special circumstances, as a successful litigant has a ‘reasonable expectation’ of obtaining an order for costs.

In the instant case, the Respondent has succeeded in defending all the grounds in this appeal against the Appellant. I find no justifiable reasons to deny him costs on appeal and in the lower court; he is hereby awarded full costs. Accordingly, Judgment is entered for the Respondents and it hereby ordered as follows;

1. On the whole all the grounds of this appeal FAIL.

2. The Judgment and Orders of the learned Trial Chief Magistrate are UPHELD in their entirety.

3. The Respondent is awarded costs in the appeal in the High Court and in the lower court.

I SO ORDER

__________________________________________
JUSTICE DR. WINIFRED N NABISINDE
JUDGE
21/06/2024

This Judgment shall be delivered by the Magistrate Grade 1 attached to the chambers of the Resident Judge of the High Court Jinja who shall also explain the right to seek leave of appeal against this Ruling to the Court of Appeal of Uganda.

_________________________________________

JUSTICE DR. WINIFRED N NABISINDE
JUDGE
21/06/2024