Wakilii

Kiwanuka & Another v Nassuna (Civil Appeal 16 of 2021)

High Court · [2023] UGHC 329 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court dismissal of suit for trespass on grounds of limitation
Decision
Appeal allowed; appellants declared lawful owners of suit land; respondent's holding limited to half an acre; eviction order issued for land outside half-acre; permanent injunction granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal, holding that the trial magistrate erred in applying section 5 of the Limitation Act to bar the entire claim where the respondent purchased only half an acre but gradually encroached on additional acreage over the years. Trespass is a continuing tort, and subsequent encroachments constitute fresh causes of action not arrested by limitation. The court found that the respondent was bound by her pleadings and could not deny the sale agreements attached to her defence, then claim the land size was never measured. The appellants were entitled to recover their land outside the half-acre lawfully purchased.

Outcome

Appeal allowed; appellants declared lawful owners of suit land; respondent's holding limited to half an acre; eviction order issued for land outside half-acre; permanent injunction granted

Facts

The appellants' late father, Sylvester Ssebowa, was the registered proprietor of Buddu Block 326 Plot 11. In the 1980s, one Kasumba fraudulently sold one acre of the land to Francis Kiseka, who subdivided it into two half-acre plots. Kiseka sold one half-acre to the respondent's late husband, Lukanga Twaha, in 1993. The appellants alleged that Lukanga gradually encroached beyond the half-acre over the years, eventually occupying seven acres by planting eucalyptus trees. The appellants instituted suit in 2014. Lukanga died during trial and was substituted by his widow, the respondent. She denied the sale agreements attached to her own defence and claimed the land size was never measured. The trial magistrate held the entire suit was barred by limitation under section 5 of the Limitation Act, finding the defendant had been in uninterrupted possession for 24 years.

Issues

  1. Whether the trial Chief Magistrate erred in holding that the entire suit was barred by limitation under section 5 of the Limitation Act.
  2. Whether the trial Chief Magistrate erred in failing to properly evaluate the evidence on the size of land purchased by the Respondent's late husband.
  3. Whether trespass is a continuing tort not barred by limitation when encroachment is gradual and ongoing.
  4. Whether the trial Chief Magistrate demonstrated bias by relying on submissions not on the court file.

Orders

  • The Appellants are the lawful owners of the suit land.
  • The Respondent's Kibanja on the suit land measures half an acre.
  • The Respondent shall maintain her activities within the half acre land.
  • A permanent injunction issues restraining the Respondent, her agents, servants and employees from further trespassing on the suit property.
  • An eviction order issues against the Respondent on the suit land outside the half acre that was bought by the Late Lukanga Twaha.
  • The Costs awarded to the Respondents by the trial court are set aside.
  • The Appeal is allowed with no order as to costs.

Rules and key headnotes

Limitation of Actions — Continuing Trespass — Subsequent Encroachments
Trespass to land is a continuing tort. Where an unlawful entry on land is followed by continuous occupation or gradual expansion of that occupation, each act of encroachment constitutes a fresh cause of action. A claim for recovery of land encroached upon over time cannot be wholly barred by limitation under section 5 of the Limitation Act where the encroachment is gradual and ongoing.
Pleadings — Parties Bound by Pleadings — Denial of Attached Documents
Parties are bound by their pleadings. A party who attaches documentary evidence to their pleadings demonstrating a specific fact cannot later deny those documents in testimony and assert a contradictory position. Where a defendant's pleadings attached sale agreements specifying the size of land purchased, the defendant cannot subsequently testify that the land size was never measured.
Limitation Act — Section 5 — Recovery of Land — Application to Gradual Encroachment
Section 5 of the Limitation Act bars actions to recover land after twelve years from the date when the right of action accrued. However, the section does not bar claims for recovery of land where the occupation is the result of gradual encroachment over time, as each encroachment gives rise to a fresh cause of action. A blanket declaration that an entire claim is statute-barred is erroneous where the evidence shows ongoing trespass.
Right to Be Heard — Submissions Not on Court File — Perceived Bias
A trial court's reliance on a party's submissions that do not appear on the court file and were not served on the opposing party violates the right to be heard under Article 28 of the Constitution. Such reliance constitutes perceived bias and is a ground for setting aside the decision. Where a point of law is raised in submissions, the opposing party must be given an opportunity to respond.
Evaluation of Evidence — Duty of First Appellate Court
A first appellate court has a duty to re-appraise and re-evaluate the evidence as a whole and come to its own conclusion, bearing in mind that it has neither seen nor heard the witnesses and making due allowance in that regard. Failure by a trial court to properly evaluate all the evidence on record, including witness testimony on boundaries and evidence adduced at locus in quo, constitutes an error warranting appellate intervention.

Legislation cited (8)

Cases cited (11)

  • Uganda Revenue Authority v Rwakasanje Azariu & 2 Others (Court of Appeal Civil Appeal No. 8 of 2007)
  • Father Narsensio Begumisa & 3 Others v Eric Kibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Justine E.M.N Lutaya v Stirling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • FX Mirango Vs Attorney General (1979) H.C.B 24
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Civil Appeal No. 2 of 1998)
  • Lutalo Moses & Ojede Abdallah Bin Cona (Supreme Court Civil Appeal No. 13 of 2019)
  • Makula International Ltd v His Eminence Cardinal Nsubuga (Supreme Court Civil Appeal No. 4 of 1981)
  • National Social Security Fund & Another v Alcon International (Supreme Court Civil Appeal No. 15 of 2009)
  • Jani Properties Ltd versus Dar-es Salaam City council (1996) EA 281
  • Struggle Ltd vs Pan African Insurance Co. Ltd (1990) ALR 46-47

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kiwanuka & Another v Nassuna (Civil Appeal 16 of 2021) [2023] UGHC 329 (9 March 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.