Wakilii

Wasswa & 3 Others v Nabunya (Civil Appeal 23 of 2020)

High Court · [2024] UGHCLD 123 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate Court of Nakawa at Luzira Civil Suit No. 59 of 2017
Decision
Appeal partially allowed — ownership and trespass findings upheld, mesne profits reduced from Ug shs 10,000,000 to Ug shs 5,000,000

Observed later treatment

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Holding

Held that the respondent proved ownership of the suit kibanja through valid sale agreements with the original owner Adolf Ssempala, and through evidence of payment of busuulu and occupation. The appellants' purported purchases from Najjemba were invalid because Najjemba had no interest to transfer after the respondent's mother's interest was rectified and a new agreement executed between respondent and Ssempala. The appellants were properly declared trespassers. However, the award of mesne profits was reduced from Ug shs 10,000,000 to Ug shs 5,000,000 as the respondent failed to adduce sufficient evidence of actual or potential earnings from the land.

Outcome

Appeal partially allowed — ownership and trespass findings upheld, mesne profits reduced from Ug shs 10,000,000 to Ug shs 5,000,000

Facts

The respondent purchased a kibanja at Kireka Zone A from Adolf Ssempala in 1972, with the original sale agreement in her mother Norah Najjemba's name. After realising the anomaly, the respondent executed a corrective sale agreement with Ssempala also dated 18/10/1972, placing ownership in her own name. She constructed a house on the land, which her mother occupied, and paid busuulu to the mailo owner. After Najjemba's passing and the corrective agreement, the appellants purchased portions of the same land purportedly from Najjemba or her grandson between 1994 and 2002. The respondent sued the appellants for trespass. The trial court found for the respondent, declaring her the lawful owner, the appellants trespassers, and awarding mesne profits of Ug shs 10,000,000. The appellants appealed, challenging the validity of the respondent's agreements, the finding of trespass, and the quantum of mesne profits.

Issues

  1. Whether the trial magistrate erred in relying on the respondent's sale agreements to declare ownership of the suit land.
  2. Whether the appellants' sale agreements from Najjemba conferred valid title or interest in the suit land.
  3. Whether the appellants were properly declared trespassers on the suit land.
  4. Whether the award of mesne profits in the sum of Ug shs 10,000,000 was justified by the evidence.

Orders

  • Appeal partially succeeds.
  • Finding that respondent is the lawful owner of the suit kibanja upheld.
  • Declaration that appellants are trespassers on the suit land upheld.
  • Order that appellants vacate the suit land within one month upheld.
  • Mesne profits reduced from Ug shs 10,000,000 to Ug shs 5,000,000.
  • Interest on mesne profits set at 6% per annum (court rate) from the date of the lower court judgment until payment in full.
  • Half the costs of the lower court and this court awarded to the respondent.

Rules and key headnotes

Land & Property — Kibanja Ownership — Transfer of Interest — Requirement of Valid Title in Transferor
A person who has no interest in land cannot validly transfer any interest to another, and transactions purporting to do so confer no rights on the purported purchaser.
Land & Property — Adverse Possession — Application to Equitable Interests — Kibanja Holders
The doctrine of adverse possession applies only to registered land and cannot be invoked by a person claiming to have adversely possessed an equitable interest such as a kibanja held by another customary tenant.
Evidence — Documentary Evidence — Objection to Admissibility — Allegation of Forgery Raised for First Time on Appeal
Where a party fails to object to the admission of documentary evidence at trial on the ground of forgery or to adduce expert evidence in support of such allegation, it is impermissible to raise the allegation for the first time on appeal, and an appellate court will treat such submissions as afterthoughts and disregard them.
Civil Procedure — Grounds of Appeal — Form and Content — Argumentative and General Grounds
A ground of appeal must set forth concisely and under distinct heads the grounds of objection to the decree without argument or narrative, and must be specific as to where the trial court erred. Argumentative grounds that state conclusions rather than facts, and general grounds that do not specify the nature of the error, are liable to be struck out.
Land & Property — Proof of Ownership — Knowledge of Land Particulars — Boundaries and Occupants
Proof of ownership of land is not complete upon production of documents alone; a claimant must also demonstrate knowledge of the location, size, boundaries, and occupants (if any) of the land claimed.
Land & Property — Mesne Profits — Burden of Proof — Assessment in Absence of Evidence of Earnings
Mesne profits are those profits which the person in wrongful possession actually received or might with ordinary diligence have received from the property. Where a plaintiff adduces no evidence of actual, past, present, or future earnings from the land, the court may nevertheless exercise discretion to assess what the wrongful possessor might with ordinary diligence have received, but the award must be supported by some rational basis and not speculation.

Legislation cited (9)

Cases cited (4)

  • Sanyu Lwanga Musoke v Galiwango (Supreme Court Criminal Appeal No. 48 of 1995)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Selle v Associated Motor Boat Co [1968] EA 123
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)

Full judgment

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

Wasswa_&_3_Others_v_Nabunya_(Civil_Appeal_23_of_2020)_[2024]_UGHCLD_123_(24_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.