High Court Clarifies rules on procedural irregularities, proof of land ownership, & locus visits. Letters of administration issued in disregard of a valid Will are invalid and cannot confer ownership.

Waboga David
Oct 19
5 min read

FACTS

The dispute concerned a kibanja located at Kavule LC1, Kibuye II Parish, Makindye Division. The late Magala Moses had sued Namirembe Ruth Olijo in 2014, claiming ownership of the kibanja and alleging trespass.

The Chief Magistrate’s Court of Makindye ruled in favor of Magala (and, upon his death, his estate administrators, the Respondents), declaring them lawful owners, ordering Namirembe’s eviction, and awarding UGX 7,000,000 in general damages and UGX 24,500,000 in special damages.

Dissatisfied, Namirembe filed a seven-ground appeal, contesting ownership, findings on trespass, evaluation of evidence, damages, locus procedures, and the lower court’s jurisdiction.

ISSUES

Whether the appeal was incompetent for failure to serve the record of proceedings.
Whether the trial Magistrate erred in holding that the Respondents were rightful owners of the kibanja.
Whether the Appellant was a trespasser.
Whether the damages awarded were excessive or unsupported.
Whether the Chief Magistrate conducted the locus in quo visit contrary to procedure.

Legal Representation

Appellant, represented by Counsel Kenneth Kajeke.
Respondents, represented by Counsel Joseph Ssewanja, with the third Respondent, Nanemba Joweria, present in court.

Submissions

Preliminary Objection

Respondents:

Argued that the Appellant’s failure to serve the record of proceedings violated procedural rules (Order 5 rule 1(3) and Order 49 rule 1 of the Civil Procedure Rules) and the right to a fair trial under Article 28 of the Ugandan Constitution. They cited Musa Mwanja v. John Lule Ssebakinjja (HCMA No. 2023 of 2022) to assert that this omission rendered the appeal incompetent.

Appellant:

Contended that the objection was frivolous, asserting compliance with court directions by filing and serving the memorandum of appeal on time, and that no illegality occurred.

Grounds 1 and 3 (Ownership and Evidence Evaluation)

Appellant:

Claimed the kibanja belonged to the estate of Zeriya Nanyonga, for which she was the administratrix, supported by a Will (DEX5) and other documents. Argued the trial court ignored key evidence and misapplied the law, leading to a miscarriage of justice.

Respondents:

Asserted that the Will did not mention the suit land, and Magala Moses purchased the kibanja from the administrators of Elinathan Kyeyune’s estate, supported by sale agreements (DEX1, DEX2) and letters of administration (PEX4). They noted the Appellant’s failure to prove forgery of a donation deed (DEX4) and argued the trial court’s findings were sound.

Ground 2 (Trespass)

Appellant:

Argued that witnesses (PW1, PW2, PW3) confirmed her possession of the kibanja, and trespass requires interference with lawful possession, which the Respondents lacked, citing Justine E.M.M. Lutaaya v. Stirling Civil Engineering Co. Ltd.

Respondents:

Contended that the Appellant’s Letters of Administration were invalid as the suit land was not in Nanyonga’s Will, and her actions constituted unauthorized entry, supporting the trespass finding.

Grounds 4 and 5 (Damages)

Appellant:

Argued that general damages of UGX 7,000,000 were excessive without evidence, citing James Fredrick Nsubuga v. Attorney General (HCCS No. 13 of 1983). For special damages of UGX 24,500,000, claimed that the receipts were not formally exhibited, rendering the award improper.

Respondents:

Defended the general damages as reasonable compensation for the inconvenience caused by the trespass. For special damages, argued that the receipts were pleaded and unchallenged, justifying the award.

Ground 6 (Locus Visit)

Appellant:

Alleged non-compliance with Practice Direction No. 1 of 2007, as witnesses were not recalled for cross-examination, and no measurements or photographs were recorded.

Respondents:

Argued that the locus visit clarified the land’s location and dimensions, and the trial court was satisfied with existing evidence, making further measurements unnecessary.

Ground 7 (Jurisdiction)

Appellant:

Claimed the Chief Magistrate lacked jurisdiction, as the sale agreement’s value (UGX 100 million) exceeded the court’s UGX 50 million limit.

Respondents:

Cited Section 206(1)(a) of the Magistrates Courts Act, which grants Chief Magistrates unlimited jurisdiction in trespass cases.

Court’s Findings

On the Preliminary Objection

Justice Echakokit held that:

“While the omission to serve the record of proceedings is a procedural irregularity, it is not fatal to the appeal unless it is shown to have caused substantial prejudice.”

The Court relied on Tinyefuza v Attorney General (Const. Petition No. 1 of 1997) and Matanda Fred v Nabuutsale Irene Racheal (Civil Appeal No. 20 of 2023), overruling the objection and proceeding to the merits.

On Ownership (Grounds 1 & 3)

The Court found that the Appellant failed to prove that the disputed kibanja formed part of the late Nanyonga’s estate. Justice Echakokit noted:

“The Will of the late Zeriya Nanyonga did not mention the suit land. The property described therein is a house neighboring the suit property.”

The Court emphasized Section 103 of the Evidence Act, stating that the burden lay on Namirembe to prove the land was part of Nanyonga’s estate — a burden she failed to discharge. The Respondents’ sale agreements and corroborating witnesses established ownership through purchase.

The trial court’s finding that the Respondents were lawful owners was upheld.

On Trespass (Ground 2)

The Court found that Namirembe unlawfully took possession of land not bequeathed to her and relied on invalid letters of administration obtained despite the existence of a Will. Justice Echakokit observed:

“Where a valid Will exists, the proper procedure is to seek Probate or Letters of Administration with a Will annexed. The Appellant’s letters, issued without disclosure of the Will, were irregular.”

She concluded:

“The tort of trespass protects possession. The Appellant entered under invalid authority, interfering with the Respondents’ lawful possession.”

The trespass finding was upheld.

On Damages (Grounds 4 & 5)

The Court reiterated that:

“General damages are at the discretion of court and are presumed to be the direct, natural or probable consequence of the Defendant’s act.” (James Fredrick Nsubuga v Attorney General HCCS No. 13 of 1983).

The UGX 7,000,000 in general damages was upheld as reasonable given the Appellant’s continued obstruction and disregard of court orders.

However, regarding special damages, the Court held:

“An item marked for identification does not become evidence until it is formally admitted and tendered.” (Biteremo v Situma, SCCA No. 15 of 1991).

Since the receipts were not properly exhibited, the UGX 24,500,000 award in special damages was set aside.

On Locus in Quo (Ground 6)

The Court referred to Practice Direction No. 1 of 2007, emphasizing that:

“During the hearing of land disputes, the court should ensure that parties and their witnesses are present at the locus, evidence is adduced, and proceedings are recorded.”

Justice Echakokit found no procedural irregularity that prejudiced the Appellant, holding that the Chief Magistrate’s approach substantially complied with the requirements

Holding

The High Court dismissed the appeal, upholding the trial court’s decision except for the special damages award

The preliminary objection was overruled.
The Respondents were confirmed as lawful owners of the kibanja.
The Appellant was found to be a trespasser.
The award of general damages (UGX 7,000,000) was upheld.
The award of special damages (UGX 24,500,000) was set aside for lack of proof.
The conduct of the locus visit was found compliant.

KEY TAKEAWAYS

Failure to serve the record of proceedings does not automatically render an appeal incompetent unless prejudice is demonstrated.
Parties claiming inheritance must show the disputed property is expressly included in the Will or estate inventory.
Letters of administration issued in disregard of a valid Will are invalid and cannot confer lawful possession.
Damages:
General damages may be awarded without strict proof, but must be reasonable.
Special damages must be specifically pleaded and formally proved by admitted documentary evidence.
Courts must adhere to Practice Direction No. 1 of 2007, but minor deviations that do not occasion a miscarriage of justice will not invalidate findings.