Irumba Kaija and Another v Richard Tooro (Civil Appeal No. 199 of 2016)

Court of Appeal · [2021] UGCA 58 · 2021 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from a decision of the High Court sitting in its appellate jurisdiction, in a land dispute originating in the Kabarole District Land Tribunal

Decision

Appeal allowed; High Court appellate judgment set aside and the Magistrate Grade 1 judgment in favour of the appellants restored

The full judgment

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Holding

On a second appeal limited to points of law, the Court of Appeal held that the appellate judge erred in finding the appellants had no interest in the suit land. The appellants proved a customary and recognised tenancy interest through tenancy agreements and rent receipts, which the Controlling Authority was obliged to acknowledge before granting a lease to the respondent. The respondent had impermissibly departed from his pleadings, having pleaded purchase from Oliver Kaija and Wawa but testified to acquisition via Municipal Council allocation, rendering his case inconsistent. The appellate judge also erred in setting aside the Magistrate's damages award and substituting an unjustified higher award. The appeal was allowed and the Magistrate's judgment restored.

Facts

The respondent sued the appellants in the Kabarole District Land Tribunal for trespass on land at Rwengoma, Fort Portal Municipality, claiming he had purchased it from Oliver Kaija and Wawa and seeking a declaration of ownership. The appellants denied trespass and counter-claimed that the land was theirs by customary tenure, supported by annual tenancy agreements and rent receipts to Fort Portal Municipal Council (Exhibits DE1 and DE2). The land had originally been controlled by the Municipal Council, which permitted seasonal cultivation. In 1992–1993 the respondent applied for and was allocated the land by the Council, later compensating those with crops on it, and obtained a NEMA licence to operate a camp site. The Magistrate Grade 1 found for the appellants. The High Court reversed, holding the appellants had no equitable interest, that the land was a Government wetland, and awarded the respondent UGX 12,000,000 general damages. The appellants appealed to the Court of Appeal.

Issues

Whether the first appellate judge failed to properly re-evaluate the evidence showing the appellants were lawful occupants with a legal or equitable interest in the suit land.
Whether the suit land was a wetland belonging to Government and properly decreed to the respondent.
Whether the respondent unlawfully departed from his pleadings by claiming acquisition through the Municipal Council when he had pleaded purchase from Oliver Kaija and Wawa.
Whether the award of general damages of UGX 12,000,000 to the respondent was excessive and unjustified.

Orders

The appeal is allowed.
The Judgment and Orders of the learned Appellate Judge are set aside and substituted with the Judgment and Orders of the Magistrate Grade 1 in Civil Suit No. 56 of 2003.
Interest at the court rate is awarded on the general damages awarded in the Judgment of the Magistrate Grade 1, from the date of the judgment of 19 June 2010 till payment in full.
The costs of this appeal and those in the courts below are awarded to the appellants.
Interest at the court rate is awarded on the costs.

Key headnotes

Civil Procedure — Second Appeals — Scope of Review Under Civil Procedure Act s.72

A second appeal lies to the Court of Appeal only on matters of law; the court's duty is to examine whether the first appellate court properly applied appellate principles and correctly appreciated the evidence, and to appraise inferences of fact without rehearing additional evidence.

Land & Property — Customary Tenure — Recognition of Occupants' Interests Before Lease Grant

Where occupants hold a customary or recognised tenancy interest in land, evidenced by tenancy agreements and rent receipts, the controlling authority must acknowledge that interest and offer them the right to a lease before allocating the land to another applicant.

Land & Property — Equitable Interest — Tenancy by Occupancy

Equitable interest in land covers an unregistered interest such as tenancy by occupancy, and such an interest must be protected where land has been occupied for a long time before another party seeks a lease.

Civil Procedure — Pleadings — Prohibition on Departure from Pleadings

A party may not depart from its pleadings; where a claimant pleads acquisition of land by purchase but adduces evidence of acquisition by a wholly different process, the inconsistency renders that party's case unreliable and less credible.

Damages & Quantum — General Damages — Assessment Principles and Appellate Interference

General damages are compensatory for the injury or loss suffered, assessed by reference to factors including economic inconvenience, the nature and extent of the loss and the value of the subject matter; an appellate court errs in setting aside and increasing an award without giving reasons for finding the original amount inadequate.

Legislation cited (6)

Civil Procedure Act s.72
Court of Appeal Rules r.32(2)
Constitution of Uganda Article 237(1) and (3)(a)
Land Reform Decree s.5
Land Act 1998
Land Tribunals Procedure Rules 2002 r.11(2)

Cases cited (4)

Areet Sam v Uganda (Criminal Appeal No. 20 of 2005)
Kampala District Land Board v Venansio Babweyaka and 3 Others (Civil Appeal No. 2 of 2007)
Uganda Breweries Ltd v Uganda Railways Corporation (Civil Appeal No. 6 of 2001)
Robert Coussens v Attorney General (Civil Appeal No. 8 of 1999)

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