Wakilii

Bwambale Mbale and Another v Baluku and Others (Civil Appeal No 18 of 2020)

High Court · [2023] UGHC 15 · 2023 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal and cross-appeal from judgment of Chief Magistrate's Court of Kasese in a land dispute concerning ownership of suit land and claims of trespass and private nuisance
Decision
Appeal and cross-appeal both partly allowed; 1st respondent declared owner of suit land; damages awarded to appellants for private nuisance; each party to bear own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal in part and the cross-appeal in part. The court held that the 1st respondent was the rightful owner of the suit land as the appellants failed to prove that the disputed land fell within their 50ft by 100ft plots. Oral evidence seeking to vary the written purchase agreements as to measurements was inadmissible under the parol evidence rule in Evidence Act s.92. However, the court found the 1st respondent liable for private nuisance by discharging sewage onto the appellants' land and awarded general damages of UGX 1,600,000. Each party was ordered to bear its own costs.

Outcome

Appeal and cross-appeal both partly allowed; 1st respondent declared owner of suit land; damages awarded to appellants for private nuisance; each party to bear own costs

Facts

The appellants purchased adjacent plots of land in Kasese Municipality in 2008 and 2009. Their purchase agreements indicated the plots measured 50ft by 100ft and bordered Mutanywana Road to the north. They reserved a portion near the road for future municipality planning compliance. In 2009, the 1st respondent began constructing on this reserved portion. The appellants complained to Kasese Municipal Council, which issued an enforcement notice, but the 1st respondent continued construction. The 1st respondent claimed he purchased the disputed land from the 2nd respondent (who acquired it from Masereka John Fosi in 2005) in March 2009 and additional land from the 3rd respondent in February 2015. The appellants filed suit claiming trespass, private nuisance, and fraud. The trial magistrate dismissed the suit with no order as to costs. Both parties appealed.

Issues

  1. Whether the suit land was part of the plots which the appellants purchased
  2. Whether the learned trial Magistrate erred when he found that the respondents' evidence fell short of proof of owning an interest in the suit land, yet held that the 1st respondent cannot be declared a trespasser
  3. Whether the learned trial Magistrate failed in his duty to determine and declare the rightful owner of the suit land
  4. Whether the appellants proved their case on the balance of probabilities
  5. Whether the learned trial Magistrate misconceived the law by declining to order eviction of the 1st respondent from the suit land
  6. Whether the learned trial Magistrate erred in holding that no damages were pleaded or proved in regard to private nuisance
  7. Whether the learned trial Magistrate shifted the burden of proof upon the cross appellants to prove that their title or interest was unimpeachable
  8. Whether the 1st defendant's purchase was tainted by dispute and controversy
  9. Whether the defendants' evidence was tainted by inconsistencies and contradictions
  10. Whether the learned trial Magistrate made orders on matters not pleaded
  11. Whether costs should have been awarded to the cross appellants

Orders

  • The judgment of the trial Magistrate is set aside and substituted with this judgment.
  • The 1st Respondent is declared the rightful owner of the suit land.
  • The Appellants are awarded general damages of UGX 1,600,000 (One Million Six Hundred Thousand Shillings) for the private nuisance occasioned to them, to be paid by the 1st Respondent personally.
  • The 1st Respondent should cease the acts constituting nuisance on the Appellants' land with immediate effect.
  • Each party bears their own costs.

Rules and key headnotes

Parol Evidence Rule — Prohibition Against Using Oral Evidence to Vary Written Agreements
Under Evidence Act s.92, oral evidence cannot be admitted or relied upon to add to, vary, or contradict the terms of a written instrument except where there is fraud, duress, illegality, lack of consideration, or lack of capacity to execute the contract.
Title to Land — Requirement to Prove Chain of Title from Previous Owner
To claim an interest in land, a party must show that he or she acquired the interest or title from someone who previously had an interest or title thereon. A person cannot transfer better title than he or she possesses.
Burden of Proof — Distinction Between Legal Burden and Evidential Burden
The legal burden of proof is fixed by law and does not shift, lying on the party who would fail if no evidence were given on either side. The evidential burden, which is the burden of adducing evidence to prove a particular fact, shifts depending on the allegations or facts presented by each party during the course of the proceedings.
Private Nuisance — Definition and Elements of Actionability
A private nuisance is a condition or activity that interferes with a person's enjoyment of property. Private nuisance becomes actionable if it has the effect of depriving the adjoining owner of the use of his land or deprives the owner of his reasonable enjoyment of his property to a material degree. Discharge of sewage from one property onto another constitutes actionable private nuisance.
Contradictions and Inconsistencies in Evidence — When They May Be Disregarded
When contradictions and inconsistencies in evidence are major and intended to mislead or constitute deliberate untruthfulness, the evidence may be rejected. However, if they are minor and capable of innocent explanation or do not go to the root of the matter, they will normally not have that effect and may be disregarded.
Costs — When Successful Defendant May Be Deprived of Costs
Costs follow the event unless the court for good cause orders otherwise. A successful defendant can only be deprived of costs when it is shown that his conduct, either prior to or during the course of the suit, has led to litigation which but for his own conduct might have been averted.

Legislation cited (9)

Cases cited (28)

  • Father Nanensio Begumisa and 3 Others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
  • Uganda Breweries v Uganda Railways Corporation 2002 E.A
  • Ojwanga v Wilson Bagonza (Court of Appeal Civil Appeal No. 25 of 2002)
  • Justine EMN Lutaya v Stiling Civil Engineering Co. Ltd (Supreme Court Civil Appeal No. 11 of 2022)
  • Ibaga Taratizion V. Tarakpe (supra)
  • Sir John Bagaire v Ausi Matovu (Court of Appeal Civil Appeal No. 7 of 1996)
  • Nabanoba Desiranta and Another v Kayiwa Joseph and Another (High Court Civil Suit No. 496 of 2005)
  • Oketha Dafala v Attorney General (High Court Civil Suit No. 69 of 2004)
  • Jovelyn Barugahare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
  • Bahirirwe Getrude v Tukore David and 2 Others (Land Claim No. 32 of 2018)
  • Miller V Minister of Pensions [1947] 2 ALL E R 372
  • Golf View Inn (U) Ltd v Barclays Bank (U) Ltd (High Court Civil Suit No. 358 of 2009)
  • Sine pay (U) Ltd v Sarah Kagoro and Another (High Court Civil Suit No. 548 of 2004)
  • Uganda Commercial Bank Vs Kigozi [2002] 1 EA 305
  • Makula International Ltd v HE Cardinal Nsubuga Wamala and Another (High Court Bulletin No. 11 of 1982)
  • Stroms vs. Hutchinson (1905) AC 515
  • Lukanga Muhammed v Musa Juko (Civil Appeal No. 42 of 2016)
  • Brownsey Vs. General Printing Ink Corp., 118 N.J.L 505 (Sup. ct. 1937)
  • Kamo Enterprises Limited v Keystalline Salt Limited (Supreme Court Civil Appeal No. 8 of 2015)
  • Oyoo Francis v Olanya (Civil Appeal No. 5 of 2017)
  • Richard Evans and Co. Ltd v. Astley, [1911] A.C. 674 at 687
  • Bradshaw v. McEwans Pty Ltd, (1959) 101 C.L.R. 298 at 305
  • British American Tobacco (U) Ltd v Mwijakubi and Four Others (Supreme Court Civil Appeal No. 1 of 2012)
  • Bahemuka Patrick and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1999)
  • Tumwine Enock v Uganda (Supreme Court Criminal Appeal No. 11 of 2004)
  • Adam Baale and 2 Others v Willy Okumu (Civil Appeal No. 21 of 2005)
  • Derram Nanji Dattani V. Haridas Kaildas 16 EACA 35
  • Kiska Limited V. Vittorio Angelis [1968] EACA 7

Full judgment

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Bwambale Mbale and Another v Baluku and Others (Civil Appeal No 18 of 2020) 2023 UGHC 15 (27 January 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.