Wakilii

Ssebanakitta v Zinda and 11 Others (Civil Appeal 3 of 2023)

High Court · [2024] UGHC 494 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the Chief Magistrate's Court at Buwama against a decision in a land trespass suit
Decision
Appeal partly allowed. Judgment of the trial magistrate varied: findings in favour of the 1st, 2nd and 3rd respondents set aside; order to compensate 4th to 7th respondents set aside. Orders on costs in lower court upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that a trial court has discretion under Order 15 Rule 5 of the Civil Procedure Rules to strike out issues and reframe them at any stage before passing decree. However, respondents who departed from their pleadings by leading evidence of inheritance instead of purchase contravened Order 6 Rule 7 and could not succeed on an unpleaded case. Trespassers cannot be compensated for permanent structures built on land they have no lawful right to occupy. The appeal succeeded in part; costs awarded proportionately to partial success.

Outcome

Appeal partly allowed. Judgment of the trial magistrate varied: findings in favour of the 1st, 2nd and 3rd respondents set aside; order to compensate 4th to 7th respondents set aside. Orders on costs in lower court upheld.

Facts

The appellant was the registered proprietor of private Mailo Land Block 236-238, Plot 41 at Luwunga. He sued twelve respondents for trespass, seeking a declaration that they had no lawful interest in the land. The respondents filed a joint defence stating they had purchased their respective portions before the appellant became registered proprietor. At trial, the 1st, 2nd and 3rd respondents led evidence that they inherited the land rather than purchasing it, departing from their pleadings. The trial magistrate struck out the first issue (whether defendants possessed any interest recognised under law) and reframed the issues at the point of writing judgment. The trial magistrate found the 4th to 7th respondents to be trespassers but ordered the appellant to compensate them for permanent structures. Costs were not awarded to any party. The appellant appealed part of the judgment.

Issues

  1. Whether the learned trial magistrate erred in striking out issue one at the point of writing judgment.
  2. Whether the learned trial magistrate properly evaluated the evidence on record.
  3. Whether the learned trial magistrate erred when he ignored or misapplied the principles governing departure from pleadings against the 1st, 2nd and 3rd respondents.
  4. Whether the learned trial magistrate erred in ordering the appellant to compensate the 4th, 5th, 6th and 7th respondents for houses built on the suit land after finding them trespassers.
  5. Whether the learned trial magistrate erred in denying the appellant costs of the suit.

Orders

  • Preliminary objection dismissed.
  • Ground one of the appeal dismissed.
  • Ground two of the appeal struck out for being too general and offending Order 43 Rule 1(2) of the Civil Procedure Rules.
  • Ground three of the appeal allowed — the trial magistrate erred in allowing the 1st, 2nd and 3rd respondents to succeed on evidence of inheritance when they pleaded purchase.
  • Ground four of the appeal allowed — the 4th to 7th respondents, being trespassers, cannot be compensated for structures built on the suit land.
  • Ground five of the appeal dismissed — the trial magistrate's decision on costs upheld.
  • Appeal succeeded in part.
  • Appellant awarded half of the taxed bill of costs in this appeal.
  • Orders as to costs in the lower court maintained.

Rules and key headnotes

Civil Procedure — Framing and Amendment of Issues — Trial Court's Discretion under Order 15 Rule 5
A trial court has wide discretion under Order 15 Rule 5 of the Civil Procedure Rules to frame, amend or strike out issues at any time before passing decree, including during judgment, provided the purpose is to determine the real matters in controversy between the parties.
Civil Procedure — Memorandum of Appeal — Grounds of Appeal must be Specific
A memorandum of appeal that sets out general grounds without specifically pointing out errors observed in the course of the trial offends Order 43 Rule 1(2) of the Civil Procedure Rules and will be struck out.
Civil Procedure — Pleadings — Departure from Pleadings — Order 6 Rule 7
No party shall raise any new ground of claim or lead evidence inconsistent with their pleadings except by way of amendment. A party cannot succeed on a case not set up in the pleadings, and a party who departs from pleadings contravenes Order 6 Rule 7 of the Civil Procedure Rules. This anomaly cannot be cured by Article 126(2)(e) of the Constitution.
Land & Property — Trespass — Compensation for Improvements
A person found to be a trespasser on land cannot be compensated for permanent structures erected on that land, as doing so would allow them to benefit from an illegality.
Civil Procedure — Costs — Discretion of Court
While a successful party is ordinarily entitled to costs under Section 27 of the Civil Procedure Act, costs are awarded at the discretion of the court. If costs are not awarded, reasons must be advanced by the judicial officer.
Civil Procedure — Jurisdiction — Waiver by Participation
A party who challenges the jurisdiction of a court, receives an adverse ruling, and then participates fully in the proceedings without appealing or seeking revision waives the right to challenge jurisdiction on appeal. Raising jurisdiction as a preliminary objection on appeal after full participation constitutes an afterthought and will be dismissed.

Legislation cited (8)

Cases cited (15)

  • Father Narsensio Beguma and 3 Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Stewards of NIC v. Mugenyi [1987] HCB 28
  • Belax Tours and Travel Ltd v Crane Bank Ltd and Another (Civil Appeal No. 71 of 2009)
  • Uganda Railway Corporation v Ekwaru DO and 5104 Others (Civil Application No. 185 of 2007)
  • SMAY Investments Ltd v. Sachdev [2003] 1WLR 1973 at P. 1976
  • Oriental Insurance Brokers Limited v TRANSOCEAN Limited (Civil Appeal No. 55 of 1995)
  • Otim Sam and 2 Others v Iriama Leonard and Another (Civil Appeal No. 66 of 2022)
  • Okot and Others v Lamoo (Civil Appeal No. 26 of 2018)
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)
  • Struggle Ltd v. Pan African Insurance Co. Ltd (1990) ALR 46-47
  • Muwakanya Elias v Kakombe Fabiano (Civil Appeal No. 59 of 2019)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Court of Appeal Civil Appeal No. 33 of 1992)
  • Omito Luka and 5 Others v Attorney General (Civil Suit No. 73 of 2004)
  • Lyamuleme David v Attorney General (Supreme Court Civil Appeal No. 4 of 2013)

Full judgment

↓ Download PDF

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

Ssebanakitta v Zinda and 11 Others (Civil Appeal 3 of 2023) [2024] UGHC 494 (15 May 2024)
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.