BEFORE: HON. LADY JUSTICE IRENE MULYAGONJA KAKOOZA

This is an appeal from the judgment of Her Worship Agnes Nabafu in which she declared that the land in dispute belongs to the plaintiff (now the respondent) and ordered that the 1^st and 2^nd defendants (appellants) be evicted from the land and pay general damages of shs 500,000/= to the plaintiff, as well as the costs of the suit.

Muganza Lubale a.k.a Kibeedi Grace (1^st defendant/appellant) and Bawoma Samuel (2^nd defendant/appellant) were the brothers of the respondent being the offspring of one Kakombekato Wambi. Kakombekato was the 3^rd defendant in the suit but he died before judgment was delivered. Waiswa William (3^rd appellant) was the 4^th defendant in the suit and the LCI Chairman of Kalembe “A” Village where the land in dispute is situated, while Muyaaya John (4^th appellant/5^th defendant) was the Vice Chairperson LC1 of the same village. It is not clear how the 5^th appellant (6^th Defendant) was related to the respondent or why she sued him. However, the 4^th, 5^th and 6^th defendants (now also appellants) did not defend the suit and the trial magistrate discharged them from liability. It is not clear why the three appealed against the decision which was not against them. I therefore considered that the necessary appellants to this appeal were the 1^st and 2^nd appellant; the rest were superfluous.

The background to the appeal was that the plaintiff sued the 6 defendants in the Kamuli District Land Tribunal but when the operations of land tribunals were suspended the suit was transferred to the Magistrates Court at Kamuli which rendered judgment. The plaintiff claimed that sometime in 1989, their father Kakombekato Wambi distributed his land held under customary law among his offspring. The plaintiff got a share of the land and was allotted one room of his house on the land for her use. The plaintiff complained that sometime in 2004, Kakombekato Wambi colluded with all the defendants, gave away part of her land to the 1^st appellant and later sold off the rest to the 2^nd appellant. She claimed that when he gave it to her, Kakombekato demarcated off the piece of land her with birowa. She therefore the land under the provisions of s.29 and s.40 of the Land Act and prayed that she be declared the owner thereof and awarded general damages. She also prayed that the defendants be ordered to vacate the land.

The defendants did not file a written defence but when the suit came before the District Land Tribunal they denied the claim under the provisions of rule 19 of the Land Tribunals (Procedure) Rules, 2002. They also called evidence in rebuttal by which they sought to prove that Kakombekato did not give land to the respondent but only allowed her to cultivate crops on it. That subsequently, he sold off part of the land to the 1^st appellant and gave away the rest to the 2^nd appellant.

The trial magistrate framed 4 issues for determination, i.e.
i)      

Whether the plaintiff was a bona fide occupant of the suit land.
ii)      Whether the plaintiff had a cause of action against the defendants.
iii)     Whether the defendants were bona fide purchasers of the land without notice.
iv)      Remedies available to the parties.

The trial magistrate found that the respondent was neither a bona fide nor a lawful occupant of the land within the meaning of s. 29 Land Act. However, she found that the respondent occupied the land legally since her father had given it to her more than 12 years before 2004 when he purported to sell part of it to the 2^nd defendant and give away the other part to 1^st defendant. The trial magistrate found in favour of the respondent on the rest of the issues framed and made the orders that I have stated above. The defendants appealed and framed 3 grounds of appeal in their memorandum of appeal as follows:

1.      

That the trial magistrate erred in law and fact when she failed to evaluate the evidence on the court record thereby leading to a miscarriage of justice.

2.      

The trial magistrate erred in law and fact when she failed to hold that the suit land is owned by the appellants having been given to them by their father.

3.      

The trial magistrate erred in law and fact when she failed to hold that the appellants were declared the rightful owners of the suit land by the LCI Court.

Whether the trial magistrate caused a miscarriage of justice when she disregarded the testimonies of the defendants about the measurements of the land in dispute.
ii)      Whether the trial magistrate erred when she awarded costs of the suit to the respondent.

With regard to the first issue, it is important first to get the gist of the respondent’s testimony before a decision can be made whether the appellant’s testimonies rebutted her claim for the suit land. Her testimony in-chief was that sometime in 1989 her father Kakombekato gave her the suit land. She further stated that after he gave it to her, he urged her to stay on it and not to return to her marriage because her husband’s family practiced witchcraft. That he had also warned her that if she left the land and let her brothers encroach on it she would have no defence. The respondent testified that she complied with the terms of the donation and stayed on the land till 2004 when her father turned round and gave part of the same land to the 1^st appellant and sold off the rest to the 2^nd appellant.

In cross-examination the respondent said that when she was given the land in dispute her father demarcated it and birowa were planted in the presence of witnesses. Her sister Alikoba Jennifer (PW2) said nothing about the size of the land but she confirmed that their father gave the land to the respondent who had been in occupation of it for a long time.

Osborn’s Concise Dictionary of Law (Ed. 7^th, Sweet and Maxwell) defines a gift as a gratuitous grant or transfer of property. For a valid gift to take effect there must be an intention to give and such acts as are necessary to give effect to the intention, either by manual delivery of the chattels or of some token on the part of the subject matter, or by change of possession as would vest possession in the intended donee. It may be by deed. The testimonies of the respondent and her sister confirmed that Kakombekato donated the land to the respondent as a gift during his life. The demarcation of the land for the respondent and the cautionary words that went with it confirmed to me that the respondent’s father had the intention to give and to give absolutely, a specific piece of land. The respondent took possession of it and began to use it thus perfecting the gift.

For the defendants, Kakombekato Wambi testified as DW1. He stated that the respondent was a widow, her husband Mutaya having died. He further testified that 3 years after his death the respondent asked him to give her some land temporarily so that she could cultivate it and grow maize and potatoes. That the land that he allowed her to use measured 10 x 10 sticks of 10 ft each, i.e. 100 sq. ft. That later on he asked her to stop using the land but she refused to do so and continued to cultivate it beyond the one season that he had allowed her to use it. That it was then that he decided to give away the land to the appellants. When he was cross-examined he denied having demarcated the land for her.

One of the consequences of a gift is that unless it is made conditionally and the donee breaches the conditions, the gift cannot be revoked. In this case, Kakombekato had no reason to revoke the gift because the respondent complied with the terms. She continued to utilise the land till the donor purported to withdraw the gift from her. I find that the donor breached the terms of the gift; he went against the caution that he had given to the respondent about her brothers encroaching on the land and instead personally gave the land away to the appellants. I would say this behaviour was not only illegal but appeared to be irrational on his part.

On his part, the 1^st appellant’s testimony was that his father Kakombekato Wambi gave him the land in dispute and that the transaction was documented. However, he did not produce the document in evidence. The 1^st appellant went on to say that the land his father gave him measured 6 sticks each 10 feet in width and over 200 sticks in length (i.e. 60ft x 2000ft which is 120,000 sq. ft). The 1^st appellant further stated that the land in dispute had no house on it and he resided on another piece of land that his father gave him in addition to the piece in dispute. When he was cross-examined he admitted that when his father gave him the land the respondent was using it for cultivation. Further that he left Nabitala village and moved (presumably onto the suit land) in 2004.

On his part, Bawoma Samuel (2^nd appellant) stated that in 2004, he bought part of his father’s land measuring 26 sticks by 235 sticks, each 10 ft long (i.e. an area of 611,000 sq. ft.) at a price of shs 600,000/=. That before he bought the land his brothers and sisters cultivated it. Further that after he bought he tried to use the land but the respondent prevented him from doing so by an order that was issued by court. He too insisted that their father only loaned land to the respondent but did not give it to her permanently.

The testimony of the 1^st appellant confirmed that the respondent was still in occupation of the land when their father purported to withdraw the gift. The presence of crops evidentially pointed to this. His efforts to take over what had been given to another were shown by his departure from Nabitala where he previously lived to the suit land or nearer to it in order to dispossess the respondent. The fact that the land was given to the respondent was also made more credible by her opposition of the 2^nd appellant’s attempts to use it.

Re-evaluation of the evidence adduced by the three defendants also made it clear to me that Mr. Wafula’s proposition that the land Kakombekato gave to his daughter was only part of that which he gave to his sons was not tenable. It appears all three defendants were trying to completely dispossess the respondent of the land. Neither of them adverted to Mr. Wafula’s proposition that the respondent was entitled to only a portion of the land in dispute. On the contrary all the three seemed to want to have it all for the men in the family leaving the respondent landless. Confirmation of this is the respondent’s testimony that on 27/5/2004, her father sold off part of the land he had given her to the 2^nd appellant and gave away the rest to the 1^st appellant. My conclusions from the above are supported by the testimony of the 1^st independent witness at the locus in quo, Nguda Moses.

Nguda Moses testified that he was the first born son of Kakombekato Wambi. According to the site map that the trial magistrate drew at the locus in quo, his land was adjacent to the piece of land in dispute. He testified that sometime in 1984, his father gave him a piece of land. He further testified that Bawoma (2^nd appellant) received a donation of land in 1988 and another sister called Nabutono also received a gift of land on the same day. He confirmed that the land that remained in the middle was given to the respondent. Nguda further testified that before Kakombekato gave her the land the respondent was already using it, which contradicted what Kakombekato himself told court. This led me to believe that he (Kakombekato) was either irrational at the time he gave away the land or that he was a liar.

Nguda further testified that after Kakombekato gave land to the respondent, boundary marks were planted. That at first Kintu, also their brother, tried to interfere with the respondent’s quiet possession but their father prevented him from doing so. He also said that his father also prevented him (Nguda) from interfering with the respondent’s possession of the land. Nguda further testified that these actions by their father showed him that the particular piece of land belonged to the respondent. He finally said that in 1994 their father wanted to give the same piece of land away to the 1^st and 2^nd appellant but the respondent stood her ground.

When he was cross-examined by the 1^st appellant, Nguda said that when his father tried to give the same land to the 1^st appellant, he (Nguda) resisted it. Also that he did not know about any agreement that his father had signed giving land to the 1^st appellant and he made no agreement for him (Nguda) either when he gave him land. He confirmed that their father had given the land to the respondent because he even planted boundary marks for her and she used it by planting bananas, potatoes and other crops till a short time before he testified.

The 2^nd appellant also cross-examined Nguda. Nguda then said his father had never withdrawn gifts he gave to him (Nguda) nor done so of gifts he gave to other persons. He confirmed that the respondent and her sister Babirye were the females in the family who received gifts of land. Further that his father fell sick (of heart disease). Nguda told court that Kakombekato then got disturbed (mentally) and began to change his brain (mind). He also asserted that if his father executed any agreements at the time he was disturbed and the agreements were invalid because he (Kakombekato) did not understand what he was doing. Nguda also revealed that the local authorities may not have known about Kakombekato’s problem (mental illness or confusion).

The testimony of Nguda clearly belied all that the 3 defendants had told court in their testimonies. Though he also implicated himself in previous attempts to dispossess the respondent of her land, he turned round and told court the truth about the transactions on it. His testimony that his father was mentally confused due to an illness when he gave to the appellants is especially important in affirming the respondent’s absolute rights to the land in dispute.

Following that Waiswa Willy, a mutaka in the village and the LCI Chairman testified that on 7/04/2004, Kakombekato called them and gave the land in dispute to the 1^st appellant and sold the rest to the 2^nd respondent. He also told court that at the time there were crops on the land: cassava, maize bananas and potatoes. That the land was demarcated in his presence and that of the appellants but there were old boundaries. When he was cross-examined, Waiswa said that there were many people using the land at the time, apart from the respondent. He confirmed Nguda’s testimony that there was once a dispute between the respondent and Nguda over the land but it was resolved.

The Vice Chairperson of the village, Muyaaya John confirmed Nguda’s testimony that at the time that he gave away the land to the appellants in 2004, Kakombekato was sick. Also that there were documents signed but again they were not produced in evidence. Muyaaya also told court that at the time Kakombekato gave away the land to the appellants there was a maize and banana garden on it. Also that it was the respondent and her aunt Federesi who were cultivating the land. In cross-examination he confirmed, as Waiswa did in his testimony, that the respondent was not summoned to witness the transaction though she was at the time in occupation by cultivating the land and had crops on it. Banerya Yekoyasi, a neighbour and mutaka also confirmed that though the respondent was at the time cultivating the land, Kakombekato gave it away to the appellants and he (Banerya) witnessed both transactions.

Though the testimonies of the three witnesses above showed that Kakombekato gave land to the appellants, he legally could not revoke an absolute gift that he made with the unequivocal intention of dispossessing himself of the land by planting birowa for the respondent. These three residents of Kalembe “A” village confirmed that the respondent was in occupation of the land when her father purported to sell it and give it away. Also that she had crops which he made no efforts to facilitate her to remove. That may be so, but Nguda’s testimony that his father was mentally disturbed when he purported to change his mind and give the land to the appellants made any contracts that Kakombekato’s entered into at the time null and void.

In conclusion of this first ground of appeal, I find that the trial magistrate made no error when she omitted to consider the different sizes of the land adverted to by the appellants and their father. It appears that by the testimony of Nguda, the whole piece of land in dispute was irrevocably given to the respondent. The appellants were given other pieces of land by their father. They therefore had no reason to turn round and try to dispossess the respondent of her land.

Ground 2
As to whether the trial magistrate erred when she awarded the costs of the suit to the respondent, the claim filed in the lower court did have a prayer that costs be awarded to the complainant. She however stated in her evidence in-chief that she would forgo the costs of the suit because she was/is a born again Christian. The decision to forgo the costs was of course within her rights.

The trial magistrate gave no reasons for awarding costs to the respondent contrary to her prayers to court. The respondent did not hire counsel to prosecute the suit for her and the matter was between family members. I think that in the interest of repairing family relations between the parties, it would have been prudent to comply with the respondents request and award no costs. I therefore find that the trial magistrate erred when she awarded costs to the respondent.

In the end result, this appeal only partially succeeds. The judgment and orders of the trial magistrate are upheld, save for the order for costs. Due to the fact that this appeal was defended by an advocate on her behalf, the appellants shall pay the respondent’s costs for this appeal.




Irene Mulyagonja Kakooza
JUDGE
16/09/2010