Court name
HC: Civil Division (Uganda)
Judgment date
28 March 2019

Nakafuma v Kagugube Holdings Ltd (Civil Appeal-2017/55) [2019] UGHCCD 441 (28 March 2019);

Cite this case
[2019] UGHCCD 441

REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT IMPIGI

CIVIL APPEAL NO 55 OF 2017

(Arising from Land Suit No. 154 of 2012)

ROSE NAKAFUMA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

KAGUGUBE HOLDING LTD:::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE. HON. JUSTICE EMMANUEL BAGUMA

JUDGMENT

  1. This appeal arises from the judgment of a Magistrate Grade one. Where the Respondent/plaintiff Kagugube Holdings the registered proprietor of the suit land instituted Land Suit No. 154 of 2012 against the Appellant (Rose Nakafuma) for recovery of land measuring 26.645 hectares in respect of land comprised in Block 82 plots 2532 and 2533 at kunguWakiso District.
  2. The case was in favour of the plaintiff/ respondent. Where the trial Magistrate declared the plaintiff/Respondent the lawful owner of the legal interest in the disputed land, Nakafuma Esther was declared the lawful owner of the Kibanja with equitable interest in the disputed land, an order evicting the defendant/Appellant from the suit premises was granted, an order for permanent injunction against the appellant/Defendant, her agents and relatives from trespassing on the disputed land was granted and the defendant/Appellant was ordered to pay the costs of the suit.
  3. The appellant was dissatisfied with the decision of the lower court hence this appeal. The appeal is based on the following grounds;
  • The learned Trial Magistrate erred in law and fact when she heard a case where she had no pecuniary jurisdiction. The land measures 26.645 hectares and its value exceed the pecuniary jurisdiction of the Magistrate Grade One.
  • The learned trial Magistrate greatly misdirected herself and occasioned a miscarriage of justice when she relied on the testimony of compromised witnesses of the plaintiff led by the illiterate Esther Nakafuuma, who on being promised 2 acres opted to betray the appellant and gave suspect testimony.
  • The learned trial Magistrate wrongly evaluated the evidence when she accepted that the appellant had been on the land after Museveni’s war (1986), a period of 30 years, but failed to find that she had legal interest as a bonafide occupant or that at least the suit against her was statute barred.
  • The learned trial Magistrate wrongly evaluated the evidence and reached a wrong conclusion when she trivialized the interest of the late AlozioKyeyune, from whom the appellant derives her interest, and glorifying the trivial interest of the appellant’s aunt with intent to bring down the appellant.
  • The learned trial Magistrate erred in law and fact andgrossly misdirected herself when she failed to see the irregularities in the procedure adopted by the plaintiff to seize the late Muvakenya’sKibanja which measured 10 acres and leave 2 acres to Esther Nakafuma, who did not live on the land and ignore the defendant who lived on the land.
  • The learned trial Magistrate erred in law and fact when she held that it is only Esther Nakafuma (PW1) who could benefit from the estate of the late Muvakenya and had the audacity to even exclude the late AlozioKyeyune
  • The learned trial Magistrate erred in law and fact in allowing the plaintiff company be the referee in a family dispute between the defendant and some errant and self seeking family members led by Esther Nakafuma.
  • The learned trial Magistrate erred in law and fact when she declared the defendant a trespasser on the land when evidence available shows that her entrance was lawful and was with permission from AlozioKyeyune and that she has been unchallenged for more than 30 years (since 1987) and hence qualifies to at least be a bonafide purchaser.
  • The learned trial Magistrate erred in law and fact when she failed to find that the respondent company was a land grabber who was out to seize the appellant’s kibanja after conspiring with weak members of the defendant’s family.
  • The learned trial Magistrate erred in law and fact when she visited the locus in quo but totally ignored what she saw, which if recorder would have confirmed the appellant as a bonafide occupant.
  1. The appellant was represented by John F. Ssengooba& Co. Advocates and the respondents were represented by CounselLeilah
  2. It is noted that this is the first appellant court; it has the duty to evaluate the evidence on record as a whole and come up with its own conclusion. See a case of PANDE VS. REPUBLIC [1957] EA 336and KIFAMUNTE HENRY VS. UGANDA CRIMINAL APPEAL No.10 Of 1997 (Sc).
  3. The grounds of the appeal shall be resolved in the same manner the counsel for the appellant did.
  4. GROUND ONE

The learned Trial Magistrate erred in law and fact when she heard a case where she had no pecuniary jurisdiction. The land measures 26.645 hectares and its value exceed the pecuniary jurisdiction of the Magistrate.

  1. Counsel for the appellant submitted that the suit property was approximately 26.645 hectares (more than 70 acres). He stated that the pecuniary jurisdiction of a Grade One Magistrate is 20,000,000/= (twenty million shillings).
  2. He submitted that besides lack of pecuniary jurisdiction, the trial Magistrate had no Territorial Jurisdiction as the cause of actionwas at Kugu Village which is in Wakiso District falling under Nabweru Chief Magistrate Court.
  3. Counsel for the respondent on the other hand argued that the matter was filed in Mpigi Chief Magistrate Court in 2012 during the time when the Statutory Instrument No. 45 of 2007 Vide; the Magistrates Courts (Magisterial Areas Instrument 2007) was still in force. He stated that item No.5 of the said instrument listsMatuga as a GradeII Magistrate Court under the supervision of Mpigi ChiefCourt different from (Magisterial Areas Instrument 2017) which the appellant relies on, which only became operational in 2017 or 2018 long after the suit was filed in the lower court.
  4. He argued that the trial in the lower court was handled firstly by a number of successive Chief Magistrates and later by other three Grade One Magistrates to the time of judgment. He stated that as to how and why the last Chief Magistrate decided to reallocate the matter to a grade one is not within their reach and that the respondent who did not have a hand should not be atoned blame for merely a suspicion or allegation without proof. This confirms that the Magistrate Grade one who handled the case had no Jurisdiction.
  5. Counsel for the respondent further submitted that the subject matter was trespass on approximately 3-4 acres of land comprised in block 82 plots 2532 and 2533 which the appellant illegally claimed ownership as a bonafide occupant. He argued that the 3-4 acres of land could not have exceeded Ugx. 50,000,000/= by 2012, that is why in the wisdom of Counsel Luswata Eva. (As she then was) the appropriate court was the Chief Magistrate’s Court of Mpigi and before the Chief Magistrate. A confirmation that the Magistrate Grade one had no pecuniary Jurisdiction to handle the matter.
  6. It is observed from the record that in the introduction of the judgment of the trial Magistrate, it is indicated that the respondent/Plaintiff brought the action against the appellant/Defendant for the recovery of land measuring 26.645 hectares which counsel for the appellant found to be approximate to 70 acres, but in the proceedings it was brought out that the actual size of the suit land in dispute was 3-4 acres.
  7. As per the record, the value of the land in dispute was not given which was improper since it is mandatory that the value of the subject matter should always be disclosed at the time of filing.
  8. Counsel for the respondent argued that the value of the 3-4 acres could not exceed 50,000,000/= in 2012 and that’s why the matter was filed in Mpigi Chief Magistrate, and the reason why the presiding Chief Magistrate had to allocate the matter to the Magistrate Grade One, should not be blamed on them. It should however be noted that jurisdiction is a creature of the statute and therefore, it can only be granted by law. See a case in DESAI VERSUS WARSAW (1967) EA 351.
  9. Section 207(b) of the Chief Magistrate Act of 2010 as amended provides that;

“A magistrate grade I shall have jurisdiction where the value of the subject matter does not exceed 20,000,000/= (twenty million shillings)”

  1. Section 4 of the Civil Procedure Act provides that;
  2.  
  3. The jurisdiction of the Learned Trial Magistrate Grade One is limited to 20,000,000/= (Twenty Million Shillings).
  4. Therefore, the Trial Magistrate Grade One erred when she handled a matter without pecuniary jurisdiction.
  5. Counsel for the Appellant/ Defendant stated that besides luck of pecuniary jurisdiction, the trial Magistrate did not have Territorial Jurisdiction as well.Counsel for the Respondent/ Plaintiff on the other hand referred court to Statutory Instrument No. 45 of 2007 The Magistrates Courts (Magisterial Area) Instrument, 2007 and stated that in 2012 Matugga Grade II was under Mpigi Chief Magistrate Court. It is noted from the record that the case was first filed at Matugga Grade II Court and looking at the Statutory Instrument in question, Matugga Grade II Court was under Mpigi Chief Magistrate Court. Thus, the learned Trial Magistrate Grade One had territorial jurisdiction but without pecuniary jurisdiction.
  6. Having resolved Issue No.1, I don’t find it necessary to go on other issues.
  7. Having found that the Trial Magistrate Grade One had no Pecuniary Jurisdiction, it is ordered as follows;
  • The proceedings, Judgment and orders of the Trial Magistrate Grade One are null and voidand are therefore set aside.
  • The appeal is allowed
  • The costs of the appeal are awarded to the appellant

 

  1.  

Emmanuel Baguma

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  • GROUND TWO

Whether the trial Magistrate properly evaluated the evidence.

  • It noted that the prosecution witnesses were recalled to testify afresh and their numbering changed.
  • PW1 Esther Nakafuuma aged 75 years and a resident of Kyebando told court that her father died and left her on the Kibanja but out of the blue she saw someone cultivating the kibanja yet she had not allowed her to cultivate. She said that their family chose Kyeyune to be the heir because she was a girl and according to Buganda culture, a girl could not inherit her father’s property.
  • PW1 testified to court that she left the Kibanja and left Kyeyune who had sold his land in Kansangati care taking it while she was a way to look for work. She said that when she came back, she found when Kyeyune had given part of her land to his daughter Nakafuuma Rose to cultivate food. She said that she asked him who authorized him to give out her kibanja to other people and Kyeyune said; he only allowed her to cultivate seasonal crops like sweet potatoes and maize yet the appellant had planted coffee and trees. Esther Nakafuuma told the appellant to stop cultivating on her kibanja but she did not stop. She told court that Nakafuuma Rose was brought on the suit land after Museveni’s war in 1999. She said that the appellant’s father was also brought on the suit land when he was sick and when he died, he was buried there.
  • She further told court that they were summoned by the land lord and were promised at least 2 acres each as kibanja holders. It was put into writing and she was given two acres. She said that the acres also have their family grave yard.
  • In cross- examination PW1 told court that her father died in 1977 and that she does not have letters of administration but her father left a will in which he bequeathed to her that land but the documents got lost in the war. She also testified that at the time of negotiating the land with Kagugube, Kyeyunewas understanding and he even asked her to forgive him for having brought the appellant on the land.
  • PW1 said that her father stayed on the suit kibanjawith Tomas who did not have children.
  • PW2 Nabankema Elizabeth aged 65 years, resident of Kiryowa village and a famer told court that she grew up seeing PW1’s father in their village. He used to visit her parents and Muvakenya used to tell her parents in her presence that he had only one child and that when he dies, PW1 should take all his properties. She said that when Muvakenya died, his wishes were still mentioned, but since in Buganda culture it’snot possible for the girl child to inherit her father,Kyeyune was put as the heir in blood but not the estate. She said that the appellant continued to stay on the land even after her father’s death until when the war started. She further told court that she did not know how the defendant came on to the land but she used to see people cultivating. She also said that she never saw the appellant since childhood but saw her of recent.
  • PW3 Lugoloobi Martin Nsibirwa aged 43 years, a resident of LwaddaMatugga and a technician told court that the respondent agreed with his late grandfather Kironde that each kibanja holder be given 2 acres with legal interests. He said that after the war Kironde died and the current directors continued from where Kironde stopped. The directors called the families of the bibanjja holders and Esther Nakanfuuma represented Muvakenya’s estate. He said that in the process of processing Muvakenya’s estate in the names of Nakanfuuma Esther, the defendant approached them.
  • PW5 Anthony KayimaKironde aged 60 years, resident of Botswana and a director of Kagugube holdings Ltd told court that at the time of purchasing the suit land, the purchaser only found about 5 bibanja holders which included NakafumaNsalemSebutemba, Nalubwama and another person he did not remember.
  • He said their fatherin 1971 went in exile because of the war and returned in 1979 but before he would issue titles as agreed, Luweero triangle war broke up. After the war in 1986, his father decided to finalize with the certificates of title but unfortunately in November 1986, he died. He told court that Nakafuuma Rose came in the Kibanja through the relative of Esther Nakafuma called Aloysius Moses Kyeyune.
  • PW5 further told court that Esther Nanfuuma originally owned 5.5 acres of Kibanja and she was to give 3.5 acres which are being occupied by the defendant and that the defendant has been on Kibanja since 1999 up to date. He said he is only ready to give Esther Nakanfuma hercertificate of title of two acres agreed
  • In cross- examination PW5 told court that in 1969 he was 13 years and his father introduced him to bibanja holders who had families. That they entered a verbal agreement with bibanja holders and all others got their land titles apart from Esther Nakanfuma
  • PW6 Justine Namuyaba aged 49 years, a resident of KanyanyaKikubo zone in Kawempe Division, Kampala District and the daughter of Kyeyune (heir) told court that the appellant is her cousin sister. Their fathers are brothers. She said that the land in dispute is located at Kilyowa, BuwamboWakiso measuring 6 acres in kibanja holding.
  • She testified that the problem in the disputed land is the fact that the defendant refused on the kibanja which her father gave her to use for cultivation and now she owned it and has cultivated it all even up to where they removed the part that was given to her father. She said that her father acquired the disputed kibanja through inheritance of John MuvakenyaSebutemba as heir since he had no son to caretaker the kibanja but he had a daughter Esther Nakanfuma.She told court that her fatherKyeyuneand Esther Nakanfuma agreed with the land lord to be given two acres in title. She also said that the defendant has been on the land since 1990.
  • DW1 MukasaSalongo Aloysius aged 72 years and a resident of Wabitembe, Sabawabi, Gombe ,Wakiso District who lived and grew up in the said village testified to court that the kibanja in dispute is located at Kilyowa on Kironde’s land as the land lord  and that it belonged to Muvakenya. He said that Muvakenya had a family, wife and children and the children included Kyeyune and Esther Nakanfuma is a sister to Muvakenya. He told court that after the death of Muvakenya, his son Kyeyune inherited the kibanja.
  • He said that he did not remember any of Kyeyune’s children because they all died. That the defendant started living on the kibanja after death of her father and she started cultivating and to live with kyeyune who educated her until he died. He said that the father of Rose Nakanfuma was the brother ofKyeyune but before he died, he gave part of his kibanja to the appellant. She planted bananas and mangos but she was never stopped by anyone from cultivating the said land and that the defendant is not a trespasser, she was given that land by the father.
  • DW2 Rose Nakanfuma aged 53 years told court that the kibanja in dispute belonged to her paternal grandparents Muvakenya and Lutaya. She said that Lutaya is the father to her father Joseph KiwanukaSebutemba. She said that Muvakenyaand Lutaya are biological brothers who purchased the disputed kibanja in 1950 before Kironde came and the intention was to use it as burial grounds.
  • She told court that her grandfather lutaya had a home in Entebbe and they had to shift with all graves and indeed the graves were shifted like her uncles. That the disputed Kibanja is their home and it’s where she knows because she was shifted with her daddy Kiwanuka to that place up to date. She said that she acquired the disputed kibanja by living there which was given to her by Kyeyune (the heir) of Muvekenya in 1987 who was a brother to Lutaya her grandfather. She testified that Muvakenya had one child Nankafuma Esther her auntie.
  • She testified to court that Kyeyune gave her the kibanja because she was born of that area and that she got a share of her uncles and father which they should have gotten. She said that she got a share of 3-4 acres and started developing it by cultivating, built a house for Kyeyune, hers, planted mangoes, ovacado and coffee. She told court that after Kyeyune’s death, Kagugube started calling meetings and it’sonly Esther who was being invited and they never invited her. She said that all other family members were not invited because they all died.
  • She told court in cross examination that the kibanja in dispute was bought by her grandparents in 1950’s. She said that kyeyune has a right in the kibanja as a child and heir. He distributed kibanja among herself, kyeyune and Justine and Nankafuma Esther; she said Esther got about 2 acres, the DW2 got about 3.5 acres and Justineand Esther returned the land to the land owner and they remained with 2 acres.
  • She said that Kyeyune shared the kibanja in 2002 and he died in 2010.
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  • It is noted from the evidence of the prosecution witnesses that the appellant was brought on to the land in dispute by the late Aloysius Kyeyuye(Muvakenya’s heir). It is still their evidence that Kyeyune was not the biological son of the late MuvakenyaSebutemba but since he only had one child who is a girl and in Buganda culture, a girl cannot inherit his father, kyeyune became the heir. PW1 and PW3told court that PW1 was the only child of the lateMuvakenyaSebutemba and the heir Kyeyune only inherited the blood butthe will pronounced PW1 as the only beneficiary. This was also confirmed by all the defense witnesses.
  • It is also the evidence of PW5 and PW3 that the land in dispute was bought by the respondent in 1968 and found five bibanja holders and agreed to give them 2 acres for the title but before the process of giving them titles was completed, a war broke up in 1971 and he went in to exile. He returned in 1979 but before the titles were issued as agreed, Luwero triangle war broke up and he still left. After the war in 1986,MrKironde decided to finalize with the certificates of titles but unfortunately died in 1986 November. It took them time as children to settle the issue but the widow was in touch with bibanja holders.
  • The process of negotiation started in 2000 between the respondent and the bibanja holders and Muvakenya was represented by Esther Nankafuma but before the title was issued in her names, there came another Nakanfuma who claimed she was the lawful beneficiary of the late Muvakenya.
  • DW2’s evidence on the other hand is that she acquired the disputed kibanja by living there from Aloysius Kyeyune in 1987 and she started cultivating the land but she was never stopped by anybody. Kyeyune divided the land in dispute amongst them; Justine (the daughter to the heir), Rose Nakanfuma, and Esther Nakanfuma in 2002. Section 5 of the Limitation Act CAP 80 provides that;
  • DW1 told court that she came on the land in dispute in 1987 but PW6 said that the appellant came on to the land in 1990. Either way, there is evidence on record that the appellant was always reminded that the land on which she was cultivating did not belong to her but instead continued to use the land and even constructed a permanent house in 2000 when negotiations were on going.
  • DW1 also confirmed to court that she was given the land by Muvakenya’s heir that’s Mr. Kyeyune for cultivation. However, the evidence on record indicates that the agreement for giving out the two acres in title was entered into by late Muvakenya in 1969, meaning that by the time Kyeyune became the heir the agreement was already in existence and he could not pass on any equitable interest in the land outside the two acres agreed upon.
  • Therefore, the appellant’s claim that she had lived on the land without interference and that she was given the land by Kyeyune fails as he did not have the right to dispute/give out land beyond the two acres.Thus, it is found that the trial Magistrate properly evaluated the evidence. Ground two of the appeal fails.
  • It noted that counsel for the appellant argued other grounds of the appeal. However, having found that the trial Magistrate properly evaluate the evidence on record, all other grounds have become academic to resolve.
  • The appeal is dismissed.
  • Costs awarded to the respondent.

…………………………..

Judge

Emmanuel Baguma

13th/03/2019

 

 

 

 

 

 

 

 

 

 

 

  • The above evidence raises the following questions
  • When did Mr. Kironde the father of the respondents die?
  • When did Mr. Muvakenya Esther Nakanfuma’s father die?
  • When did the heir of Muvakenya start living on the land in dispute?
  • When did the negotiations between Kironde’s heir and the bibanja holders start?
  • Did Kyeyune and Esther Nakanfuma know of the verbal agreement that was entered by their father late Kironde?
  • Questions i-iii are answered by the evidence as above given. However, this will answer questions iv and v.
  • PW3 told court that “the plaintiff bought land and found five bibanja holders. They agreed to give each kibanja holder two acres in 1968 before MrErisaKironde the late. There was Muvakenya, IsakaNakakka, Elizabeth Nabankema and NsaleAsekironde and two are dead. Jack Kironde, EsezaKironde, Anthony Kironde(directors) called the family members of the Kibanja holders who had died.I attended the meeting. Each kibanja holder was approached separately. Esther Nakanfuma represented Muvakenya’s estate in 2000”
  • PW5 also told court that “my father called all the bibanja owners to a meeting and agreed with all of them that he was going to give each of them two acres with certificate of title they forego the rest without any encunrances. In 1971, my father went in exile because of the war and returned in 1979 before he would issue titles as agreed, Luweero triangle war broke up. After the war, my father decided to finalize with the certificates of title but unfortunately in November 1986, he died. It took us time as children to settle this issue because there were more pressing issues. Meanwhile my mother was in touch with bibanja holders”
  • It also the evidence of PW6 that the appellant

 

  • According to the evidence on record, the suit land in which the claim arose is 26. 645 hectares which is more than 70 acres. According to the valuation of land in the central, an acre of land can go for 100,000,000/= (Hundred Million Shillings) and above. As above cited, the Magistrate Grade one can only handle a case with the value not exceeding 20,000,000/=. Meaning the Magistrate Grade one acted beyond her jurisdiction.Section 4 of the Civil Procedure Act provides that“Except in so far as is otherwise provided, nothing in this Act, shall operate to give any Court jurisdiction over suits the amount of value of the subject matter of which exceeds the pecuniary limits if any of its ordinary jurisdiction”
  • In the case of DESAI VERSUS WARSAW (1967) EA 351, STEPHEN MUBIRU VERSUS ANNET MUBIRU, REV. CAUSE NO.4/2012andKAROLI MUBIRU & 21 OTHERS VERSUS EDMUND KAYIWA [1979] HCB 212, MUGOYA JAMES GIDUDU &ANOR [1991] HCB 63.Court held that:

“‘A judgment of Court without jurisdiction is a nullity.The orders which follow such a judgment must be set aside ex-debits judititial (as of right).The proceedings and pleadings before the Learned Trial Magistrate were enough for him to investigate the question of jurisdiction and confirm the pecuniary value……….”

  • In the view of the above, this court finds the judgment and the proceedings of the trial Magistrate annuity.
  • Counsel for the appellant also argued that the trial Magistrate did not only lack pecuniary jurisdiction, but also lacked territorial jurisdiction. In the view of that argument, court notes that the suit land in question is found in Kungu village, Kira Parish, Kira Sub County in Wakiso District which does not fall under Mpigi Chief Magistrate Court. One would wonder why the plaintiff in Civil Suit No. 145 of 2012 had to jump Nabweru Chief Magistrate Court or Nakawa Chief Magistrate Court and instead decided to file his case in Mpigi Chief Magistrate Court. It is therefore found that the trial Magistrate did not have territorial jurisdiction as well.
  • Having found that the trial Magistrate did not have jurisdiction, it is ordered as follows;
  • The proceedings, judgment and orders of the trial Magistrate Grade one are null and void.
  • A re-trial be conducted.
  • The file be transferred to the court with pecuniary and territorial jurisdiction.
  • The cost of the appeal is awarded to the appellant.

 

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Emmanuel Baguma

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28/03/2019