Court name
HC: Land Division (Uganda)
Judgment date
9 February 2018

Yiga v Kalega (Civil Appeal-2017/) [2018] UGHCLD 8 (09 February 2018);

Cite this case
[2018] UGHCLD 8
Coram
Masalu-Musene, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

AT MPIGI

CIVIL APPEAL NO. 53 OF 2017

Arising from  civil suit No. 121 of 2015 of the chief Magistrate’s Court of Mpigi

SADIQ YIGA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

ROBERT KALEGA:::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

 

BEFORE: HON. JUSTICE  WILSON MASALU MUSENE

 

JUDGMENT

The Appellant, Sadiq Yiga , being dissatisfied with the decision of Grade one Magistrate Mpigi, His worship  Imalingat Robert  appealed to this court.  The Respondent  was Robert Kalega.

The grounds of appeal were:

 

  1. That the trial Magistrate erred in law and fact to hold that I was a trespasser on the suit land/Kibanja.
  2. That the trial Magistrate failed to evaluate all the evidence produced  before it.
  3. That the  trial Magistrate failed to properly record all the evidence presented before it.
  4. That the trial Magistrate failed to consider all the evidence on all agreements.
  5. That the trial Magistrate failed to analyze the rights/interests of the kibanja owner.
  6. That the trial Magistrate’s orders were severely harsh and excessive.
  7. Remedies available to the Appellant.

 

The Appellant was  not represented, while the Respondent was represented by M/S  Musoke Suleiman   & Co. Advocates.

Both sides filed written submissions which are on record.  I shall consider the   grounds of appeal one by one.

 

However, before I do so, wish to re instate the law with regard to the duty of the first Appellate Court.

It is now settled law that the duty of this Court, as a first Appellate Court is to  re-evaluate the evidence in the lower court and subject  it to a fresh and exhaustive scrutiny and draw its own  inferences and conclusions.  However, it has to bear in mind that it neither saw or heard witnesses testify, and due allowance  has to be given in that respect.  The case in point   in Banco Arabe Espanel vs Bank of Uganda SCCA NO. 8 of 1998.

On the first ground of appeal, the Appellant, Sadiq Yiga submitted that his late father, Suleiman Seguya  gave him the suit kibanja  in 1991.

He added  that his uncle, the late Muhamadi Sematimba produced a written agreement to confirm  that he was bequethed the land by his father. 

The Appellant  concluded that the learned trial Magistrate did not  consider  his father’s  agreement of 1991 as he was misled by the Respondent and erroneously  held appellant  was a trespasser.  The  Appellant wondered how he could become a trespasser on his own land.

 

In reply, counsel for the Respondent submitted that  whereas  the appellant  stated during  examination in chief in the lower court that his  father  bought  the Kibanja  from one  Mubanzi webanja, that he did not produce  any agreement or document  in Court.  Counsel also submitted that in his defence in the lower court  (written statement of Defence), the appellant stated that he obtained the  Kibanja  from one Ahmad Sekalega in 2001.  Counsel for the Respondent submitted that  Ahmed  Sekalega  admitted having sold the kibanja in dispute  wrongfully to the Appellant as it belonged to Asa Namagembe.

 

Counsel for the respondent also submitted that the Appellant was neither  a bonafide  occupant as his father was a caretaker. 

It was further stated that both the Appellant and his father had no evidence of any  busuulu payment  and that the Appellant entered on the suit land without  the consent of the land owner.  Counsel for the Respondent concluded that since the Respondent is the registered proprietor of the suit land, he is protected under Section 59  of the Registration of titles Act.

I have considered the submissions on both sides as far as the  1st ground of appeal is  concerned.  I have  also  studied the record of proceedings and  Judgment of the lower court.

 

The Respondent  now   was  plaintiff in the lower court.  He testified as PWI and told court how he bought the land in dispute  from Assa Namagembe  who was the registered proprietor  PWI,  Robert Kalega added that  “The village authorities (LCI) were present and the chairman L.C I endorsed his stamp.  Assa Namagembe and people present assured us that the land was vacant.  No one occupied it.  They were Sekalega Ahamad, Galiwango, and others confirmed that the land was free  of any occupation.  We inspected the land and we were with Kyeyune Edward and counsel  Shamim Nalubega.  We saw  some food on the land; cassava, coffee , eucalyptus trees and banana plants.  They belonged to a “Mutuuze”  who was  not identified  to me.  There was no house. I was assured that there was no one using it.  I brought prisoners to slash the land.  Whoever we cleared  the  place, the defendant  would plant  maize.  The Defendant claims two  (tw0  acres out of six (6)  I bought.  I reported to  Kibibi Police, a case of criminal trespass.  I was  advised to report to Mpigi Police Station.  When we  contacted him, he told us  he knew  Sekalega who sold him the land/kibanja.  Sekalega told  us he was  willing to give the defendant a portion on his land because he sold what was  not his.”

The Appellant’s  case was  supported  by PWII, Assa Namagembe who confirmed that she sold to Appellant  at UGX 25.000.000/=, free of any encumbrance.

During  cross examination, PW2 confirmed  that the house of the appellant  was on Sekalega’s  land.  PW3 was Sekalega Ahamad testified that he was present when Assa Namagembe sold the land in dispute to the appellant, and that Assa Namagembe is her elder sister.

Similar  testimony was given by PW4,  Abdul Rahman  Galiwango who confirmed  that there were no tenants on the land of Assa,  and that Ssekalega sold  the  kibanja which was not on his land.

The Appellant  (Defendant  in lower court) on  the other hand testified as DW1  that it was his father who bought the kibanja  in 1940  although he had no agreement of purchase.  The  Appellant also stated that he did not know the  landlord.  And the  Appellant did not produce any evidence  of busuulu payment,  an indication that he entered on the land in dispute without the consent of the land owner.  And the Appellant’s  case was made worse by his  sister, DW2, who alleged  that she was born in  1963 on the land in  dispute.  The question to be asked is why did the appellant then buy the same kibanja  at UgX 3,000,000/=  from Sekalenga.  And the Appellant even contradicted  his case when he testified that his father gave him the kibanja   in dispute  in 1991.  Given  such  contradictions in the Appellant’s  case in the lower court ,  as opposed to the clear and straight  forward case of Respondent  who bought from a registered proprietor, then the appellant  failed to prove his case on the balance of probabilities.  The Respondent was also protected under the provisions of Section 59  of the Registration of titles Act.

I therefore agree with the finding and holding of the trial Magistrate that the Respondent  is the rightful owner of the suit land. So ground No. 1 of Appeal is hereby rejected.

Ground 2.  That the trial Magistrate failed to evaluate all the evidence produced.

According to the Appellant, the trial Magistrate did not talk about the Respondent destroying his house.  However, and as counsel for the Respondent correctly  submitted, the  issue  of damage to the house  was not part of the matters to be resolved at the trial.  It was not stated in the appellant’s defence or counter-claim.

What was in issue in the lower court  was trespass.  And  that was addressed by the trial Magistrate on page 5  of his judgment when he held that from evidence of PW4,  the Appellant’s  father  (Defendant’s) was merely  a caretaker  and licence on the kibanja  which he  even left.  Even the mother   of the appellant is said to have left and re-located, which was not disputed by Appellant.

 

In th absence of any  payment  of Busuulu by the  Appellant’s father the trial Magistrate correctly held that the appellant’s father had no interest to pass on to appellant.

 

Furthermore, the trial Magistrate  addressed the purchase of appellant from one Sekalega in 2001.  Sekalega is on  record admitting that he had no ownership of the suit kibanja  purportedly  sold to the appellant in 2001.  He did  not have the  authority  or any  interest  to pass on  to the Appellant as the  property did not belong to Sekalega Ahammed.

The trial Magistrate also properly held, in my view, that the actions of the Appellant   of continuously  planting  crops on the disputed   land despite warnings  that the Respondent had purchased the same from Assa  Namagembe, was continuous  use without authority of the  owner,  and therefore trespass.  And the appellant could not be a bonafide or lawful occupant under Section 29  of the land Act as he did not enter the land with the consent of the Registered owner, including the Respondent who had purchased from the Registered proprietor.

 In the premises, I find and hold that the trial Magistrate properly evaluated the evidence  before  him.  So ground No. 2 of appeal fails.

 

Ground 3:

That the trial Magistrate failed to properly  record all the evidence  recorded.

The  Appellant  submitted that court failed to properly record his evidence to favour  the Respondent.  He  insisted  his parents  occupied  the disputed  Kibanja  since 1940.  The Appellant also complained about  failure to record payment of Busuulu and  Envujo.

 

Counsel for the Respondent on the other hand submitted that the trial Magistrate recorded all the evidence which was adduced during  trial.  And whereas the Appellant stated in his submission that the trial Magistrate did not consider the  agreement of his father done in 1991, that is not true. She added that the trial Magistrate in his judgment on page 3 paragraph 3 paragraph 2 clearly stated that “  the Defendant  on the other  hand contended that the land in  dispute is  part of the  kibanja  he inherited from his father   who bought  if way back  in 1940.  He contended that there was an agreement to the effect which he never unfortunately  produced  in court for  inspection.”  Were the words  of the Magistrate and  all that shows that the trial Magistrate properly  recorded  the evidence  and there is no way to consider an agreement which was not produced in Court.

Counsel for the  Respondent went on to add that the appellant did not produce  any document in court in respect of his father giving  him the purported kibanja nor did  he produce any document to prove that the father owned the said kibanja.  And that  he did not even adduce any busuulu  tickets paid by the father. 

 

I have carefully  studied the record of proceedings of the Lower Court.  The Defendant (now  appellant’s case) started  on page  15-20, and the Defendant’s  testimony and that of his witnesses was all recorded. 

 

Failure by the Appellant to produce  busuulu and envunyo tickets  from his father  could not be faulted on the trial Magistrate. And the same applied to any agreement  or  documentary evidence which  should have been produced at the trial.  I therefore   find  and hold that this ground of appeal is baseless and is hereby rejected.

Ground 4.

That the trial Magistrate  failed to consider all the evidence on  agreements.

The Appellant submitted as follows:

it is very clear  the learned trial  Court failed to  consider all the evidence on all agreement produced before it because it insisted only on Ssekalega’s agreement yet I clearly explained to it that Ssekalega ahamada re-sold  to me  e kibanja  which was for  my father  because my uncle  Muhamadi Sematimba gave me all my father’s  agreement after paying  money to Ssekalega Ahamada in 2001.  It was very wrong for the learned trial court  to refuse to consider the agreement which was done by  my father in 1991.  It was a very big  mistake for the learned trial  court to declare that I was a trespasser  because my parents occupied the suit kibanja  since 1940  and there  was clear  evidence to prove the same because there was a residential house, coffee plantation, eucalyptus  trees,  pine trees which were all destroyed by the Respondent on 28/10/2015  with the help of  guns from Kabasanda police and prison without any court order.  Photographs   of all are attached behind as an annexture  ‘C.’”

 

In reply , Counsel for the Respondent submitted that:

The trial  Magistrate  did consider all the evidence on all the agreements which were adduced in court  The Appellant  adduced his sale agreement between him and Ssekalega . and that  Ssekalega    when brought to court  admitted that he had no ownership  of the suit kibanja  he purportedly  sold to the appellant in 2001.  He did not have the authority,  ownership and even interest to pass onto the appellant, property that was no this.  Counsel  maintained that  all  this was stated in the  judgment of the trial Magistrate on page 5  of the judgment  the last paragraph.  All this  shows that the trial Magistrate considered the evidence of the appellant’s agreement but unfortunately  the person who sold to him  sold  him air.  There is no way the trial Magistrate would reply on such agreement.”

 

I have  considered  the above submissions  with regard to ground  4 of appeal.  My findings are that ground 4 has  more or less  been covered with ground  2 and 3  of appeal.   Never the less,  I hold that the trial  Magistrate  considered all the evidence on agreements.  And that is why he considered the sale agreement of the Respondent which was adduced in court to hold that the Respondent was the rightful  owner of the suit land as he was a bonafide  purchaser from the registered  proprietor.   I therefore  dismiss this ground of appeal. 

Ground 5

That the trial Magistrate failed to analyise the rights/interests of the kibanja owner.

The  arguments of the Appellant were repetitive of what he had stated in respect of ground 1.  I shall therefore not waste much time  re-writing the same.  However, I entirely  agree with the brief  submissions of counsel for the Respondent that the rights and interests of the kibanja  owner were considered by the trial Magistrate on pages 5 and 6 of his judgment. 

He outlined who a lawful and bona fide  occupant  is and correctly  concluded  that the Appellant was not a lawful  or bona fide  occupant  within the meaning or as defined   under section 29 of the land Act.

So ground 5 of  appeal equally fails.

Ground 6

That the learned trial Magistrates’ orders were severally harsh  and excessive.

I have  studied the record of the lower court.  The trial  Magistrate ordered for the eviction of the Appellant and costs.  Since the trial Magistrate correctly  held that the Appellant was a trespasser,  then he correctly  ordered  for his eviction from the disputed  land.  And Ssekalega Ahmed, who was a witness in the lower Court  confirmed that he had wrongfully  sold land to the Appellant which did not belong to Ssekalega.  SSekalega  offered to give alternative piece of land to the appellant which should be followed  up by the Appellant.  As for the order of costs, whereas  a successful party is entitled to  costs  as correctly  submitted by Counsel  for the Respondent, I exercise this Court’s  discretion under Section 27 (2)  of the civil Procedure Act to exempt  the appellant from payment of costs.

It has clearly emerged that he was a poor  man who could not even afford the services of an advocate.

So ground  6 of appeal partly  succeeds in that the appellant is  exempted from   payment  of costs.

 

Ground 7

Remedies  available.

In view  of the findings and holdings in the grounds  of appeal No 1-5 which this Court has rejected, then the conclusion of this Court is that the appeal is hereby dismissed.  The judgment and orders of the trial Magistrate  are hereby upheld except that the Appellant shall not be penalized  in costs here and below.  This is the exercise of this Court’s sympathy with the  Appellant who is apparently very poor  and that was why he could not  afford  services of an advocate.

So each party to meet their own costs.

 

W.  Masalu Musene

Judge

09/02/2018