Yewagnesh Birriggwa v Walusimbi and 3 Others (Civil Appeal 52 of 2014)

Court of Appeal · [2023] UGCA 353 · 2023 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from a High Court (Land Division) judgment dismissing a claim for vacant possession and a permanent injunction

Decision

Appeal substantially allowed; appellant entitled to vacant possession and a permanent injunction against the 1st and 2nd respondents; 3rd and 4th respondents discharged

The full judgment

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Holding

The Court of Appeal substantially allowed the appeal. While failure to give notice under section 4(1) of the Land Reform Decree 1975 was held to be a curable irregularity given the lacuna over the prescribed authority, the court found the respondents were not bona fide occupants. Applying section 37 of the Land Act, land left unutilised for over ten years results in abandonment, and tenancy by occupancy subsists only while the tenant remains in occupation. As the land had been uncultivated for over a decade, the appellant purchased land that was vacant and unencumbered. The trial Judge also wrongly shifted the burden of proof to the appellant contrary to section 101 of the Evidence Act.

Facts

The appellant became registered proprietor of land at Bwotansimbi, Buloba (Busiro Block 313-320, Plot 941) when her husband purchased it in 1997, and she was registered on 20 May 2002. She filed HCCS No. 89 of 2011 against the respondents seeking vacant possession and a permanent injunction, alleging the 1st and 2nd respondents had held out as kibanja holders and attempted to sell the land. The respondents claimed a kibanja interest dating to the 1970s, having acquired it in 1989 from Ssalongo Samwiri Musoke, who had purchased without obtaining the landlord's consent. When the appellant's husband acquired the land it was vacant, uncultivated and uninhabited. At a locus in quo visit on 8 November 2013 the trial Judge found the land had not been cultivated for at least ten years, showing only bush, an excavated pit and no physical developments. The trial Judge nevertheless held the respondents had a kibanja interest and dismissed the claim, prompting the appeal.

Issues

Whether failure to give notice under section 4(1) of the Land Reform Decree was a curable irregularity that did not vitiate the transfer of a customary/kibanja interest.
Whether the respondents were bona fide occupants at the time the appellant was registered as proprietor in 2002 and whether the appellant's registered title was subject to their kibanja interest.
Whether the burden of proof to disprove the respondents' kibanja interest lay on the appellant.
Whether the trial Judge properly evaluated the evidence.
Whether the conduct of the locus in quo occasioned a miscarriage of justice.

Orders

Appeal materially succeeds on Grounds 2, 3 and 4.
The appellant is entitled to vacant possession of the disputed land.
A permanent injunction is granted barring Respondents No. 1 and No. 2, their agents and any other person from interfering with the appellant's quiet possession.
The 3rd and 4th respondents are discharged from the appeal.
The appellant is entitled to 50% of the costs of the suit in this court and costs in the court below.

Key headnotes

Land & Property — Land Reform Decree 1975 — Notice to Prescribed Authority — Curable Irregularity

Failure to give notice under section 4(1) of the Land Reform Decree 1975 before transferring a customary tenure is a curable irregularity and does not vitiate the transfer, given the lacuna in the law as to who the prescribed authority is.

Land & Property — Bona Fide Occupant — Requirement of Occupation and Utilisation

To qualify as a bona fide occupant under section 29 of the Land Act, a person must have both occupied and utilised or developed the land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution; occupation or utilisation alone does not suffice.

Land & Property — Tenancy by Occupancy — Abandonment under Section 37 Land Act

A tenancy by occupancy subsists only as long as the tenant remains in occupation; under section 37 of the Land Act, leaving the land unattended for three years or more amounts to abandonment, and a person not in continuous and uninterrupted occupation cannot acquire adverse rights against the registered owner.

Evidence — Burden of Proof — Party Asserting a Fact

Under section 101 of the Evidence Act, the burden of proving a fact lies on the party who asserts it; a party claiming a kibanja interest must prove it, and the burden cannot be shifted to the registered proprietor to disprove the claim.

Civil Procedure — Locus in Quo — Procedural Irregularity Without Miscarriage of Justice

Minor procedural irregularities in the conduct of a locus in quo do not vitiate a trial Judge's decision where they do not prejudice a party in material terms or occasion a miscarriage of justice.

Civil Procedure — First Appeal — Duty to Re-evaluate Evidence

A first appellate court has a duty to subject the evidence to its own fresh and exhaustive scrutiny, reconsider the materials before the trial Judge and reach its own conclusions, while bearing in mind it did not see or hear the witnesses testify.

Legislation cited (13)

Constitution of Uganda 1995 Article 237
Constitution of Uganda 1995 Article 237(8)
Land Reform Decree 1975 s.3(1)
Land Reform Decree 1975 s.4(1)
Land Act Cap 227 s.29(1)
Land Act Cap 227 s.29(2)(a)
Land Act Cap 227 s.29(5)
Land Act Cap 227 s.31(1)
Land Act Cap 227 s.37
Evidence Act s.101
Evidence Act s.104
Busuulu and Envujjo Law 1928 s.8
Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30(1)(a)

Cases cited (11)

Lawrence Kitts v Bugisu Cooperative Union (Civil Appeal No. 12 of 2004)
Saku v Seventh Day Adventist Church Association of Uganda (1993) LLR 242
Godfrey Ojwang v Wilson Bagonza (Civil Appeal No. 25 of 2002)
Tifu Lukwago v Samwiri Mudde Kizza (Civil Appeal No. 13 of 1996)
Asuman Mugenyi v M. Buwule (Civil Appeal No. 14 of 2016)
Paul Kisekka Sakku v Seventh Day Adventist Church (Civil Appeal No. 8 of 1993)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Kampala District Land Board v National Housing & Construction Corporation (Civil Appeal No. 2 of 2004)
Dr William Kaberuka v N.K Investments Ltd (Civil Appeal No. 80 of 2008)
Painento Omwero v Saulo Zebuloni (Civil Appeal No. 31 of 2010)
David Acar & 3 Ors v Alfred Acar Aliro [1982] HCB 60

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