Court name
High Court of Uganda
Case number
Civil Appeal 44 of 2016
Judgment date
28 March 2020
Title

Ganafa v Wasswa (Civil Appeal 44 of 2016) [2020] UGHC 217 (28 March 2020);

Cite this case
[2020] UGHC 217
Coram
Luswata, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA

 

CIVIL APPEAL NO. 044 OF 2016

(Arising out of the Chief Magistrates Court of Mukonoholden at KayungaCivil Suit No. 022 of 2011)

 

GANAFA JAMES…….….………………………………………APPELLANT

 

VERSUS

 

WILSON WASSWA……………………………….……….…RESPONDENT

 

JUDGMENT ON APPEAL

BEFORE HON. LADY JUSTICE EVA K. LUSWATA

 

            This is an appeal from the decision of Her Worship Nabasa Ruth, Magistrate GDI, Mukono at Kayungadelivered on 05/04/2016.

 

Background

            In the lower court, Wilson Wasswa the respondent sued Ganafa James the appellant in trespass in respect of land comprised in LRV 63 Folio 17 land at Bbaale Trading Centre, Bugerere in Kayunga District (hereinafter referred to as the suit land). Wasswa stated in his claim that he was the registered proprietor of the suit land in which Ganafa unlawfully entered and occupied sometime in 2010. That he suffered damages and embarrassment due to none use. On his part, Ganafa contended to be a bonafide occupant having acquired the suit land through purchase from the Bbaale Sub County Council. He claimed to have been in possession since 1988 and had developed it with permanent structures.

 

            In her judgment, the trial magistrate found that the suit property was expropriated property which at some point had been vested in Government by law and put under management of the Departed Asiana Property Custodian Board (DAPCB) She reasoned thatWasswa having purchased the suit land from the DAPCB and being in possession of a valid certificate of title, the land belonged to him. She then ordered demolition ofGanafa’s developments on the land and awarded Wasswa general damages. Ganafa being dissatisfied with that decision presented this appeal by an amended memorandum of appeal on two grounds that:-

  1. The trial Magistrate erred in law and in fact when she entertained a suit which was time barred hence arriving at a wrong decision
  2. The trial Magistrate erred in law and in fact when she came to a wrong conclusion that the appellant was a trespasser upon the suit land hence occasioning a miscarriage of justice.

Duty of the Court

            My powers and limitations as a first appellate Court are now well settled. I am under duty to subject the entire evidence on record to fresh and exhaustive scrutiny and make my own conclusions. In doing so, I am not bound necessarily to follow the trial Court’s findings of fact especially if it appears that the Court clearly failed in some way to take account of particular circumstances and probabilities. I hasten to add that my conclusions may be limited by the fact that I did not see or hear the witnesses to test their veracity and due allowance shall be made in that regard. See for example PanydaVrs R and SanyuLwangaMusokeVrs Sam Galiwango SCCA No. 48/1995.

 

            Wameri Anthony represented Ganafa while Wasswa was represented by Sebbanja Abubaker. Both counsel filed written submissions as directed, and all shall considered in my decision.

 

Resolution of the grounds of appeal:-

Ground 1

            It was argued for Ganafa that the suit in the lower court was time barred and thus illegal. It was therefore wrong for the trial Magistrate to have gone ahead to proceed with it and then delivered judgment. Wasswa’s counsel disagreed. He argued that that objection was neither pleaded nor formed one of the issues for determination by the Magistrate. Counsel argued that raising it on appeal amounted to a departure and an attempt to introduce a new matter in the appeal. 

 

            I am prepared to agree with Ganafa’s counsel that limitation which is a point of law, need not be specifically pleaded and can be raised at any point of the proceedings. Once a suit is found to be bared by limitation, it is deemed that the pleadings and proceedings are void and the court should thus immediately cease to proceed with it. Therefore, it should have been best for that objection to have been raised at the earliest point in the proceedings before the Magistrate. However, that should not preclude my Court from investigating whether the suit against Gangafa was indeed time barred. For as pointed out by his lawyer, statutes of limitation have strict application and will automatically stifle a suit filed out of time. The case he provided is instructive:

….the statute of limitations is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled, of course, to insist on his strict rights. See Hilton Vrs Sutton Steam Laundry (1946) KB 61 at 81.

 

            The law of limitation was well stated by Ganafa’s counsel. Under Section 5 of the Limitation Act, the right to sue in order to recover land expires 12 years from the date on which the cause of action arose. It is also provided in Section 11(1) of the same Act that:

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereinafter in this section referred to as the “adverse possession”) and where under section 6 to 10, any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue until adverse possession is taken on the land”.

 

            In his testimony, Wasswa stated that Ganafa first came onto the suit land in 1998 and that by the time of filing the suit, he was in occupation of 50ft by 70ft of it. One of his prayers being for vacant possession or an eviction order against Ganaga, is a clear indication that the latter was at the time of filing the suit, in active possession of that portion of the suit land. Ganafa did not deny that fact for in his defence, he claims that after acquiring the suit land in 1998, he developed it, and considers himself a bonafide occupant thereof.

 

            It follows therefore that Ganafa is in adverse possession of the suit land and continues to be so to date. If his occupation is found to be unfounded, he would be deemed to be in continuous trespass because his occupation supersedes the date the plaint was filed. It has long been settled that trespass to land is a continuous tort which cannot be affected by the Limitation Act. See for example Oola Lalobo  Vrs Okena Jake Akech HCCS No.20/2004.

 

            The first ground accordingly fails.

 

Ground Two

            Ganafa testified and it was not disputed that he acquired the suit land from the Bbaale Sub County, whose Council formerly allocated it to him by deed admitted into evidence as DEX1. Kitusimbwa Godfrey the LCIII Chairperson of that Sub County confirmed the allocation and stated that the Council had the powers to make the allocation. DWIV Moses Musita explained that as a member of the LCII Committee,between 1997-2005 he knew that the suit land was formerly a ginnery for Indians and that after they left, it became a bush. That Council sat and resolved to give out the land to people from the Sub county who then begun developing it. He conceded that he was part of those who resolved to give out the land. Further DWIII who was at the material time, the LCI Chairperson Bbaale West, stated that by the time Wasswa arrived in the area, Ganafa had been in occupation for seven years

 

            Upon those facts, Ganafa’s counsel argued that the suit land which formerly belonged to Asians was vested in the Government of the Republic of Uganda and the Sub County which is part of the State, had powers to deal with it. That in addition, his client entered the suit land with the consent of its known owner and therefore, qualified to be a lawful occupant under Section 29(1) Land Act. That once Wasswa took possession, he had to recognize that interest and compensate him for his developments instead of suing him for eviction. Wasswa’s counsel disagreed. He argued that the suit land formerly belonged to Asians and thus governed by the provisions of the Expropriated Properties Act (hereinafter EP Act). In that vein that, Wasswa purchased it from the Ministry of Finance and Economic Planning and therefore Sub County Council had no powers deal with or in it.  He argued that the suit land was governed by the EP Act which nullified any dealings in expropriated property

 

            I do not agree with Ganafa’s counsel that the trial Magistrate made a lopsided evaluation of the evidence in favour of Wasswa. In my view, all evidence with regard to the issue of ownership was given equal consideration. The Magistrate considered the fact that the suit property was under expropriation laws, vested in Government from whom Wasswa purchased it. She equally considered the facts presented for Ganafa that by resolution of its Council, the Bbaale Sub County resolved to allocate the suit land to Ganafa, which they did in a deed of transfer dated 5/1/1998. She then concluded that Bbaale Sub county had no powers to sell the suit land which had reverted into the DAPCB. Having found so, I will now investigate whether her findings were correct and supported by the evidence on record.

 

            The evidence seems to suggest that the land in contention was a plot measuring 50ft by 70 ft which was found within the boundaries of larger portion of five acres comprised in LRV 63 Folio 17 registered in Wasswa’s names. I have no doubt that the Sub County did allocate the suit land to Ganafa on 25/11/1997; the minute to that effect was entered into evidence and not contested. According to Ganafa it was public land and according to Musita, it had originally belonged to Indians who had left and it had overtime, become reclaimed by bush. I doubt that the Bbaale Sub County had powers to allocate land which is the preserve of a District Land Board.

 

            The above notwithstanding,the manner of allocation was also faulty, even illegal. The deed of transfer admitted as DEX1 was simply titled “Transfer of ownership”.It was signed by Kitasimbwa Godfrey as Chairperson LC III Bbaale. It states that he acted on the authority of the Sub County Council and he transfers ownership of a plot of land (measuring 50ft by 70ft) in Bbaale West LCI to Ganafa. Boundaries of the land are given. There was no consideration mentioned and as stated by Ganafa himself, none was paid. This would mean, no agreement was concluded between the two parties. Beyond not having powers to transfer the land, it is doubtful, the land was the property of the Sub County.

 

            Again,It is not true as claimed by Ganafa’s counsel that the facts of the suit land having ever been expropriated first came up during submissions. During the scheduling proceedings on 16/2/12, it was stated for Wasswa that he purchased the suit land from the Ministry of Finance under the DAPCB in 2005 and was issued a certificate of purchase. It is true that the certificate was never tendered in court, but it was not an issue then as Wasswa had by then become the registered proprietor, and had a certificate of title.

 

            The certificate of title admitted in evidence as PG1 is a lease title of land comprised in LRV 63 Folio 17. There is evidence that the suit land was at one point property of an Asian. According to Musita, the suit land had been a ginnery for Indians and when they left, it became a bush. According to PG1, all registered proprietors prior to Wasswa were of Asian extract. One former owner was the Uganda Cotton Company, alluding to the Ginnery that Musita mentioned. Wasswa became the registered proprietor of the suit land on 9/11/2005 when he registered a certificate of purchase dated 25/8/2005 issued under the Expropriated Properties Act 1982. In my view, the Magistrate quoted the applicable law and then applied it correctly.

 

            The Expropriated Properties Act Cap 87 was (inter alia) enacted to provide for the transfer of properties acquired or otherwise expropriated during the military regime into the Ministry of Finance, and to provide for their disposal by the Government. It is provided in Section 1 that from the commencement of that Act, all such properties are to remain vested in Government under the Management of the Ministry of Finance. Under Section 2(a) all dealings in such properties including transfers and grants were nullified. The legal consequences of those provisions was considered by the Supreme Court in Gokaldas LaximidasTannaVrs Rosemary Muyinza&Anor SCCA No. 12/1992 in which Justice Oder found that:

“As I understand it, the meaning of Section 1(2)(a) of the Act appears to be this

  1. It nullified any purchases, transfers and grants and dealing of whatever kind in properties now vested in Government
  2. Such transactions were nullified notwithstanding the provisions of any written law governing the conferring of, or the passing transfer of such title or land, property or business.

 

            It would follow then that the suit land having been expropriated property, it was vested in Government under the Ministry of Finance and was thus not property of the Bbaale Sub County. They did not own it and had no powers to deal with or in it. The deed of transfer was nullified by the Act and even then, as I have shown, it could not transfer valid title to Ganafa. It would follow then that Ganafa cannot claim to be a bonafide occupant because the entity that authorized his entry into the suit land, had no powers to do so, because they too did not own or control it.It would follow therefore that even if the law required that he be compensated before eviction, he is not entitled to that remedy because he does not qualify to be a bonafide occupant.

 

            Under Section 9 of the EP Act, where a former owner fails to apply for repossession, an application is made but, rejected or, they fail to fulfil other statutory terms of repossession, the Minister of Finance may order for the property to be sold or disposed of. Under Section 9(5), once a property is sold, the Minister issues a Certificate to the purchaser ordinarily termed a Certificate of Purchase.The certificate shall have the same effect as a certificate of repossession. I believe it is that certificate that was issued to Wasswa and registered on his titleon 9/11/2005. It is clearly indicated on the title that the certificate was issued under the EP Act.

 

            All the above facts point to the fact that Ganafa’s entry and continued occupation of the suit land were done outside the law. His presence there was in contravention of Wasswa’s claims as its valid proprietor with a certificate of Title that was never challenged. It was thus correct and a proper evaluation of the evidence for the trial Magistrate to have found Ganafa to be a trespasser on the suit land. That decision did not occasion a miscarriage of justice.

 

            Accordingly, I find no merit in the appeal and it is dismissed. The respondent shall have the costs of the appeal and of the Court below, as originally awarded.

 

I so order.

 

 

…………………………………..

EVA K. LUSWATA

JUDGE

28/03/2020