THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA. LD - CIVIL APPEAL NO.0040 OF 2024 (Arising from Civil Suit No. 042 OF 2018 by HW Nabuduwa Harriet Magistrate Grade one Kyankwanzi) 1, SSEKALAMAJI AUGUSTINE 2. SSERUFOKO ANDEREYA: : APPELLANTS: VERSUS 1, NYAMWIZA ROBINAH 2, BUSHAIJA CHARLES:::: suits: RESPONDENTS. BEFORE HON.MR JUSTICE KAREMANI JAMSON.K JUDGMENT Introduction The respondents in this matter instituted a suit against the appellants and judgment was entered in the favour of the respondents. Being dissatisfied with the judgement and orders of the Magistrate Grade One delivered on 12" day of July 2024, at the Chief Magistrate's Court of Kyankwanzi, the appellants filed this appeal seeking orders that the judgment, decree and orders of the trial magistrate be set aside and the appeal be allowed. Background to the appeal The respondents (plaintiffs) filed Civil Suit No. 042 of 2018 against the appellants (defendants) in the Chief Magistrates Court of Kyankwanzi seeking a declaration that they are the rightful owners of the suit land situate at Kambuga cell, Butemba sub-county in Kyankwanzi district, that the appellants are trespassers on the suit land, for a permanent injunction, general damages and costs of the suit.In their written statement of defence, the appellants denied the respondents claims and averred that they occupied a kibanja bought on 20" October 2002 by their son Tumwine David. The trial Magistrate found that the suit land belonged to the respondents and that the appellants were trespassers thus this appeal. Representation. The appellants were represented by M/S Paul Tusubira & Co, Advocates while the respondents were not represented. ‘The appellants filed written submissions which I have considered in the determination of this appeal. Grounds of appeal The Appellants raised 8 grounds of appeal in their memorandum of appeal namely; 1, The learned trial Magistrate erred in law and fact when she held that the plaintiffs were the rightful owners of the suit land. 2. The learned trial Magistrate erred in law and fact when she held that the defendants were trespassers on the suit land. 3. The learned trial Magistrate erred in law and fact when she failed to rely on her own findings at locus when she observed that the plaintifis failed to identify the suit land and the boundarit 4, The trial magistrate erred in law and fact by deliberately refusing to admit defence submissions on record. a ‘The learned trial Magistrate erred in law and fact by holding that Tumwine bought the Kibanja when he was a minor. 6. The trial magistrate erred in law and fact when she granted an eviction order and a permanent injunction against the appellants/defendants. 7. The trial magistrate erred in law and fact when she awarded Ugx. 5,000,000/= as . SE) en general damages.8. The trial magistrate erred in law and fact when she awarded costs to the plaintiffs /respondents. Duty of the first court on appeal The duty of a first appellate court is to scrutinize and re-evaluate the evidence on record and ‘come to its own conclusion and to a fair decision upon the evidence that was adduced ir a lower court, See: Section 80 of the Civil Procedure Act. This position has also been re-stated in a number of decided cases including Fredrick Zaabwe V Orient Bank Ltd CACA No. 4 of 2006; Kifamunte Henry V Uganda SC CR. Appeal No. 10 of 1997; and Baguma Fred V Uganda SC Crim. App. No. 7 of 2004. In the latter case, Oder, JSC stated thus: “First, it is trite law that the duty of a first appellate court is to reconsider ail material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court”. Consideration of the grounds of appeal. This court will deal with grounds 1, 2, 3 and 5 together since they are related. Ground 1, 2,3 & 5 1. The learned trial Magistrate erred in law and fact when she held that the plaintiffs are the rightful owners of the suit land. 2, The learned trial Magistrate erred in law and fact when she held that the defendants are trespassers on the suit land. 3. The learned trial Magistrate erred in law and fact when she failed to rely on her own findings at locus when she observed that the plaintiffs failed to identify the 3 GD suit and the boundaries.5.The learned trial Magistrate erred in law and fact by holding that Tumwine bought the Kibanja when he was a minor. Counsel for the appellants submitted that the trial magistrate erred in holding that the respondents were the lawful owners of the suit land relying on evidence that they were registered proprietors ignoring her earlier conclusion that certificate of title is not conclusive proof of ownership in land until the circumstances of acquisition have been investigation. Counsel further submitted that the trial magistrate shifted the burden onto the appellants to prove their case yet according to section 101 of the Evidence Act, the plaintiff has got the burden to prove their case on a balance of probabilities. Analysis by court. According to evidence adduced by the respondents and unchallenged by the appellants the land in dispute is registered land comprised in Plot 1 Block 129 located at Nyabitakuri in Kyankwanzi District, Itis registered in the names of the respondents. Proof of ownership of registered land is production of a certificate of title showing that one is the registered proprietor of the land. Any other interests that can be held in registered land are equitable interest on the land as lawful or bona fide occupant. In this case, on page 7 of the judgment, the trial Magistrate in finding the plaintiffs/respondents to be the lawful owners of the suit land reasoned that she found so because the respondents/plaintifis presented a certificate of title in their own names and that it was the evidence of the LC1 chairperson Mugabi Johnson before he was declared a hostile witness that he was present when the respondents entered into an agreement to purchase the suit land. The trial magistrate further found that the appellants did not challenge the respondents’ registration but rather insisted that they are kibanja holders. Among the evidence relied on by the trial magistrate to make her decision was the evidence of witness who was declared hostile. Evidence of a witness declared hostile is not supposed to be taken into consideration.I would like to state that by relying on the evidence of a one Mugisha Johnson ~ the LCI chairperson DW2 who was declared a hostile witness and was ordered to step down as a witness was irregular. This evidence was never subjected to cross examination and therefore should not have been relied upon by the trial Magistrate in her judgment. That evidence having been expunged from the record was no longer of any value. See Sections 153 and 154 of the Evidence Act. During the hearing of any case declaring a witness to be hostile is a duty of a trial court, The effect of declaring a witness hostile is that his or her evidence cannot be relied on. It was therefore irregular for the trial magistrate to refer to the evidence of a witness who was declared hostile. I will therefore proceed to consider the evidence of other witnesses other than the evidence of DW2 whose evidence was expunged from the record so as to make my own findin; Section 59 of the Registration of Titles Act (RTA) provides that a certificate of title is conclusive evidence of ownership. However, under section Section 161 of Registration of Titles Act, the High Court has power to order cancellation of a certificate of title on the ground of fraud among others, According to the case of Fam International Limited V Mohamed Hamid Fi-Patih & Anor Supreme Court CA No.016 Of 1993 (Unreported); it was held that it is well established that fraud must be specifically pleaded and that particulars of fraud alleged must be stated on the face of the pleadings. ‘The appellants did not ask for cancellation of the certificate of title since they did not challenge the registration. They admitted that the respondents hold a certificate of title but they claim that they bought a Kibanja on the same land Therefore, the trial magistrate ought to have made a finding whether the appellants owned a kibanja on the appellants’ land, A kibanja owner is a lawful occupant who enjoys security of occupancy on registered land.‘According to the case of Ponsiano Katamba V Cotilda Nakirijja Court of Appeal No.169 of 2017 (unreported) a kibanja holder is by definition under the Land Act a lawful or bona fide occupant on registered land In the case of Owembabazi Enid V Guarantee Trast Bank Limited HCCS No.063 of 2079 at Commercial Court (unreported) Justice Stephen Mubiru held that kibanja is 2 form of land holding or ¢enancy that is subject to customs and traditions of the Baganda characterised by user rights and ownership of developments on land in perpetuity subject to payment of, busuulu and correct social behaviour distinct and separate from ownership of the land on which the developments are made and in respect of which the user and occupancy rights exist. A kibanja owner holds equitable interests in the registered land which can be transferred with consent of the owner. Under Section 29 of the Land Act Cap 236 bona fide and lawful occupants of registered land are legaily recognized occupants. Whether the plaintiff is a lawful occupant According to Section 29(1) (a) of the Land Act a lawful occupant means- (a) a person occupying land by virtue of the repealed- )) Busuulu and Envujjo Laws 1928; ii) Tooro Landlord and Tenant Law of 1937; iti) Ankole Landlord and Tenant Law of 1937; (b) A person who entered the land with the consent of the registered owner and includes a purchas 5 OF(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 of title. (d) In this case the appellants claimed to have bought the land in dispute and later to have been paying Busuulu. They presented in court copies of busuulu receipts. ‘The certificate of title in this case was created in 2008. This was after the appellants had bought the kibanja in dispute in issue in 2002. Nantume Hadijja who sold to them had long bought the land before 1985. It therefore follows that the certificate of title for the land in issue was secured Jong after the land had been bought by DW2 and subsequently by DW1. This is not a situation covered under Section 29(1) (a) of the Land Act. The appellants do therefore not qualify to be lawful occupants. Whether the appellants are bona fide occupants The appellants contended that their son bought for them the Kibanja in issue. ‘They presented receipts to prove payment of “bususlu” DW1 Tumwine David stated that he bought the suit kibanja from Nantume Hadijjah in 2002 though he did not sign on the agreement himself, DW2 Nantume Hadijjah stated that she sold the same kibanja to the Tumwine David. She stated that the kibanja originally belonged to her and her late father having bought the same together. That her father died around 1984 and the agreement got lost.According to Section 29 (2) (a) of the Land Act cap 236 (As amended) a bona fide occupant means a person who before the coming into force of the Constitution had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more. According to Sub section 5 of the above section, any person who has purchased or otherwise acquired the interests of the person qualified to be a bona fide occupant under this section is taken to be a bona fide occupant. From the above definition, first and foremost the land in issue must be registered land. The land in this case was registered in 2008 as per the certificate of title exhibit P1, The Constitution of 1995 had already been promulgated. It is therefore my finding'that the appellants do not qualify to be bona fide occupants on the land in dispute. However, the evidence adduced by the appellants in court which was not controverted by the respondents indicated that the land in issue was bought in 2002. That since 2002 the appellants have been in occupation. The suit was filed in 2018. This was after 16 years with the appellants in occupation. There was no indication of the respondents having challenged the possession and occupation of this land for all this period of time. Section 16 of the Limitation Act provides that subject to section 29 of the same Act and subject to the other provisions thereof, at the expiration of the period prescribed by this Act for any person to bring an action to recover land, the title of that person to the land shall extinguish.Section 5 of the Limitation Act provided for land to be recovered with in a period of twelve years from the time when the right of action. In the Case of Maria Specioza Mukasa V Kaifa Nambi & Anor. Civil Appeal No.044 of 2017 Land Division(unreported) it was held that where a person had been in effective possession of registered land for 12 years or more and has undertaken developments on the land, unchallenged by the registered owner of the land, and neither a lawful nor a bona fide occupant as defined under Section 29 of the Land Act, he or she can derive protection from the law of adverse possession and claim ownership of the land. ‘The appellants in this case proved that they purchased the land in 2002 from Nantume Hadijja who had acquited the same in 1985 and that they have remained in occupation uninterrupted since then till the filing of this case in 2018. It was observed by the trial magistrate that during the visit of locus the respondents did not even know the boundaries of the land, It is also evident that by the time the respondents were registered on the certificate of title of this land the appellants were already in occupation and in possession and they did not challenge their occupation. The respondents acquired the certificate of title for the land in dispute when the appellants had equitable interests in the land already. I therefore find that the appellants are the right owners of the suit land having been in adverse possession of the same for over twelve years without any challenge from the respondents. Grounds 1, 2, 3 and 5 succeed.Ground 4 ‘The trial magistrate erred in law and fact by deliberately refusing to admit defence submissions on record. On page one of the judgment, the trial magistrate observed that the counsel for the appellants/defendants filed his written submissions on 4% June 2024 which was out of the given time for submitting the same. The trial magistrate while relying on the case of Suryakant Manibhai Patel V Gume Fred Ngobi and Anor Misc.application no. 76 of 2023 stated that the act of the appellant filing submissions and attaching a letter explaining why they filed late without seeking leave to enlarge time was contemptuous of court directives. She then declined to admit the said submissions on court record. It is trite law that written submissions are a legal requirement for one to file in the court after an order has been given. In the case of Susan Theophil Mbilinyi and Anor V Ivabune Jeru Mbilinyi Misc. to file written submissions is not a matter of choic: ivil Revision no. 0 of 2023, it was observed by the court that to file or not ‘That failure to fite submissions in court is like refusing to speak or failure to make oral submissions before a judicial officer. That filing submissions is a way of prosecuting one's case. In the instant case, the appellants were ordered to file written submissions by 8* May 2024. Instead the submissions were filed on 4" June, 2024. The reason for failure to file in time was given by counsel for the appellants but no application for extension of time was asked for, In my considered view, when a party files written submissions out of time and fails to seek leave to have his or her submissions admitted on court record, it becomes the discretion of court to either admit the submissions given the reasons advanced by the party filing late or not. This is so, because court orders should not be in vain, Time lines are of essence and delays in filing and prosecuting of cases is one of the reasons for the increased backlog in courts. It should be noted that even without submissions being filed by either side court is 10 Eye obliged to pronounce judgment.‘Therefore, I find the trial magistrate did not error in not admitting submissions of the defence on court record because they were filed out of the prescribed timelines and no leave was sought Ground 4 fails Grounds 6, 7 & 8 These grounds are related since they are all remedies granted by court. Iwill therefore handle them together. Since the appeal has succeeded all the remedies granted by the lower courtare set aside. All in all, this appeal succeeds and the judgment, the decree and all orders of the lower court set aside, Costs of this appeal and the costs of the lower court are granted to the appellant. Iso order. (A) , KAREMANI SAMSON. K JUDGE. 12/05/2025 Court: The judgment has been delivered by email on 12/05/2025 Ln KAREMANI JAMSON. K JUDGE. 12/05/2025 a