Tata Sam v Timbiti Yusuf and Another (Civil Appeal No. 120 of 2024) [2026] UGHC 618 (8 June 2026)

1 | P a g e THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MABALE CIVIL APPEAL NO. 120 OF 2024 (Arising from Bubulo Land Suit No. 16 of 2021) TATA SAM :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS

1. TIMBITI YUSUF :::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS
2. MASABA COORPORATIVE UNION BEFORE: HON. JUSICE DR. LUBEGA FARAUQ JUDGMENT
3. Introduction
4. The Appellant/ Plaintiff instituted Land Suit No. 16 of 2021 at Bubulo Chief Magistrate Court against the Respondents/Defendants for a declaration that the plaintiff is the rightful owner of the suit land, an order for vacant possession, special damages, general damages, costs of the suit , an d any other relief the court deem ed fit.
5. The Appellant/Plaintiff’s case in the lower court
6. The Appellant’s facts in the lower court were that the plaintiff entered in to a land sale transaction of plot 35A (Block C) located at Lwakhakha Town Council with the 2 nd defendant , measuring approximately 50 by 100 feet at an agreed purchase price of Ugx: 5 ,00 0 , 00 0 /= ( five million shi llings). The Plaintiff paid cash and the full purchase price to the 2 nd defendant , and a payment receipt was issued by the 2 nd defendant acknowledging receipt of the money 5,000,000/= (five million shillings ) (purchase price) , and a land sale agreement was drafted and executed.
7. That despite paying in cash and in full the purchas e price, the 2 nd Respondent , together with the 1 st defendant /Respondent , has failed or

2 | P a g e neglected or refused to give the plaintiff vacant possession of the said land despite several demands and reminders. 6. That the 1 st defendant has now constructed a toilet in the suit land and has laid a foundation and is now constructing there a permanent structure. The Plaintiff has sought several avenues , including involving the local authorities , but the defendants have not acted positi vely , and the 1 st defendant has continued to remain in possession of the suit land. 7. The 2 nd Respondents’/Defendants’ case 8. The 2 nd Respondent stated that it executed a land sale agreement with the Plaintiff for land comprised in plot 37 situated at Lwakhakha Town Council and not Plot 35 A Block C. That wh ile drafting the agreement, C ounsel erred when he indicated therein Plot 35A Block C instead of Plot 37 as earlier agreed amongst the parties , and a statutory declaration was sworn to rectify the anomaly. 9. That upon purchase by the plaintiff , plot 37 was indeed handed over to the plaintiff , who in fact took possess ion of the same. That the said plot 37 at Lwakhakha Town Council sold to the plaintiff has been va cant for the plaintiff to take up possession , and the 2 nd defendant is ready to assist him. 10. That the 2 nd defendant has never sold plot 37 A meant for the plaintiff to the 1 st defendant as alleged , and any action by him is not sanctioned by the 2 nd defendant in any way . The 2 nd defendant has at all times be en ready to assist the plaintiff to take up vacant possession of his plot 37 A Lwakhakha Town Council , which was sold to him . 11. Issues determined in the lower court (a) Who is the rightful owner of the suit land? (b) Whether the 1 st defendant is a trespasser? (c) What remedies are available to the parties? 12. The trial Magistrate found that the 1 st defendant/Respondent is the owner of the suit land comprised in plot 35A, situated in Muvule Cell, Lwakhakha Town Council, Namisindwa district, the Plaintiff/Appellant’s

3 | P a g e suit was dismissed, the Plaintiff was awarded general damages of Ugx: 10,600,000/= against the 2 nd defendant, interest at 6% on general damages per annum and the 2 nd Defendant/ Respondent was ordered to pay costs to the Plaintiff/Respondent. 13. The Appellant was dissatisfied with the decision of the lower court and appealed to this court . He raised the following grounds of appea l in support of this suit ; (a) That the learned c hief m agistrate erred in law and fact when she decla red that the suit land belongs to the 1 st Respondent. (b) The learned c hief m agistrate erred in law and fact when she failed to differentiate between Plot 35A Block C of the Appellant and Plot 35 of the 1 st Respondent. (c) That the learned c hief m agistrate erred i n law and fact when she dismissed herself , that the Plaintiff should pursue the people who sold him land to get back his money. (d) That the learned c hief Magistrate erred in law and in fact when she dismissed the plaintiff’s case with costs. 14. He prayed that the appeal be allowed, set aside the judgment and orders of the lower court, issue a declaration that the suit land belongs to the plaintiff , and order that the costs for both the lower court and appellate court be awarded to the Appellant. 15. Legal Representa tion 16. Counsel Wetaka Bourne represented the Appellant. Counsel W e e r e S a f i y u represented the 2 nd Respondent , and Counsel M ur ana Robert represented the 1 st Respondent. 17. This appeal proc eeded by written submissions , and the same have been considered in the deter mination of this matter . 18. Duty of the first appellate court 19. This court is aware of its duty as the first appellate court , which is to subject all the evidence on the court record to a fresh scrutiny , but not

4 | P a g e ignoring the lower court judgment , bec ause it did not get the chance to see the demeanor of the witnesses as they testified. 20. The above principles were elaborated in the case of Fr. M. Begumisa & Ors V. E. Tibegana SCCA No. 17 of 2003 , when he stated; “The appellate court has to bear in mind that its duty is to rehear the case , and the court must consider the trial before the Judge with such materials as it might have decided to admit. The court must then make up its own mind , not disregarding the judgment appealed from but carefully weighi ng and considering it and not shrinking from overruling it if , on full consideration, the court concludes that the judgment is wrong . ” 21. This court will be guided by the Supreme Court decision quoted above. 22. Ground No.1: That the learned c hief m agistrate erred in law and fact when she declared that the suit land belongs to the 1 st Respondent. 23. I have had the benefit of reviewing the lower court record and noted that the issue in dispute concerns Plot 35 , which the Appellant alleges purchased from the 2 nd R espondent in 2020 but was trespassed on by the 1 st Respondent. 24. The 1 st Respondent , on the other hand , alleged that he has had the suit since 2001 as a leasehold tenant. However, in 2016 , he purchased the suit land from the 2 nd Responde nt. 25. The Appellant was the only witness for the Plaintiff’s case/Appellant’s case. The Respondents , on the other hand , called a total of four witnesses to prove their case. 26. The Appellant who testified as PW1 told court that he purchased Plot 35A from the 2 nd Respondent and paid Ugx: 5,000,000/=. The sale agreement wa s executed and tendered as PEX.3 . He also purchased plot 37 A from Watsombe Siraje , which is not in dispute. That h e has never heard of error s in the numbering of the plots. That the 1 st Respondent owns the suit land.

5 | P a g e 27. The 1 st Respondent , who testified as DW1 , informed the court that he has owned the suit land since 2001. That he got the suit land through an application to the 2 nd Respondent by paying a non - refunda ble fee of Ugx: 20,000/=. He started paying a premium fee of Ugx: 24,000/= annually. T hat after settling for over 10 years, the 2 nd defendant , through their lawyers of Mbale Law C hambers A dvocates , wrote to him to complete the purchase of Plot No. 35 in the letter dated 13/01/2007 . He attached the lease agreement and the receipt of payment , but these were not tendered as exhibits. 28. The 1 st Defendant’s evidence on possession of the suit land was buttressed by DW2 Kisangani Jakobo and DW3 Siraje Watsombe. 29. It is the refore pertinent to note that , save for the evidence on possession, the 1 st Defendant did not tender any other evidence to prove that he purchased the suit land. 30. Whereas DW1 testified that he purchased plot 35, DW4 , Murumbo Charles , on behalf of the 2 nd Respondent , testified that originally the plot in dispute was plot 35. It was later divided into plots 35A and 35B. However, after the town council was established, the numbering changed to 37A and 37B. 31. DW4 further testified that the 1 st Respondent owns plot 37B , which he purchased from the 2 nd Respondent. He stated that the Plot length is always 100 f t , but the width is either 50ft or 40 ft. DW1 , however , stated that his plot measures 180ft by 50ft. 32. DW4 told the court at page 24 of the record of proceedin gs that , “the 1 st Defendant built a structure on the suit land during C OVID - lock down. The suit land (plot) 37A belongs to the Plaintiff...” 33. DW3 Siraje Watsombe confirmed that in 2018 , he sold plot 37A to the Plaintiff/ Appellant at a consideration of Ugx: 5,000,000/=. The consideration in the sale agreement is , however , Ugx: 2,500,000/=. 34. Analysis of the court

6 | P a g e 35. From the evidence displayed above, it is clear that the Appellant purchased Plot 35 and Plot 37A. He stated that he purchased Plot 37A from Siranje Watsombe in 2018 at Ugx: 2,500,000 , which was confirmed by the sale agreement tendered in court as PEXH. 3. It is , however , notable that though the Appellant testified that he purchased plot 37A from Siranje Watsombe, the sale agreement shows that he purchased it fro m the 2 nd Respondent. 36. Further, the Appellant testified that he also purchased Plot 35 from the 2 nd Respondent , and the same was tendered in court as PEX.2. I have reviewed the lower court record and noted that the said sale agreement was endorsed on 24 th of October, 2020 , for the purchase of Plot 35A at a consideration of Ugx: 5,000,000/=. 37. Clause 2 of the said sale agreement for plot 35A shows that it is free of any encumbrance. The agreement does not , however , show the size of the land , but the Appellant tes tified that the suit land measures 50ft X 100ft. Hi s evidence was corroborated by DW4 Murumbo Charles , who testified that the 2 nd Respondent only sold plots measuring 100ft by 50ft. That evidence shows that the 1 st Respondent occupies more land than what he purchased , since he said he purchased 180ft by 50ft. 38. The evidence of DW4 that the suit land was formerly plot 35A and now 37A contradicts PEXH.2 and PEXH.3 , and this court did not believe it. 39. The evidence on record shows that the sale agreements relating to Plot 35A and Plot 37A were executed in different years and at different purchase prices. This strongly suggests that the two plots are distinct parce ls of land acquired through separate transactions. Consequently, the Appellant's claim cannot be said to relate to the same piece of land as that claimed by the Respondents and their witnesses. 40. Be that as it may, the 2 n d Respondent, through DW4, did not adduce evidence sufficient to distinguish the pl ot sold to the Appellant on 24 th October 2020 from that sold to t he 1st Respondent in 2017. In those circumstances, the 2 nd Respondent would bear responsibility for

7 | P a g e compensating the Appellant if it indeed sold Plot 35A to him after having already sold the same plot to the 1st Respondent. 41. While the 2 n d Respondent maintained th at the 1 s t Respondent purchased Plot 35B, the evidence gathered during the locus visit did not support that position. Instead, the Court established that the 1 s t Respondent was in occupation of the suit land . 42. Section 101 (1) and (2) of the Evidence Act Cap 8 provides that - “(1) Whoever desires any court to give judgment as to any le gal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 43. To prove his purchase of the two plots of land, the Appellant relied on PEX.1, PEX.2, and PEX.3. The evidence contained in those exhibits was admitted by DW3 and DW4. In the circumstances, the Appellant successfully discharged the evidential burden placed upon him by section 101 of the Evidence Act. 44. Accordingly, since the 2 n d Respondent admitted that the land had previously been sold to the 1st Respondent, who was the first purchaser and is in possession thereof, the principle of first in time applies. The 1 st Respondent’s interest , therefore , takes precedence over that of the Appellant. 45. Accordingly , the trial m agistrate did not err when she found that the suit land be longs to the 1 st Respondent. 46. Ground No.1 is answered in the negative. 47. Ground No.2: The learned c hief m agistrate erred in law and fact when she failed to differentiate between Plot 35A Block C of the Appellant and Plot 35 of the 1 st Respondent. 48. I have indic ated in ground one that , according to the evidence of DW4, plot 35A and plot 35B were originally one plot which was later divided. He

8 | P a g e testified that Plot 35A and 35B were renamed and changed to 37A and 37B. He did not , however , indicate when such changes occur red. 49. Nevertheless, this Court is unable to accept DW4’s account. The documentary evidence adduced by the Appellant, namely PEX.2 and PEX.3, establishes that he purchased two plots of land through s eparate transactions conducted at different intervals. Moreover, none of the agreements suggests that Plot 35 was ever converted, renumbered, or altered to become Plot 37. DW4’s contention in that regard is therefore not borne out by the evidence on record . 50. If the 1 st Respondent’s plot was indeed different from that of the Appellant, the same should have been observed by the court at the locus visit , but it was not. 51. The evidence on record leads to the conclusion that the Plot 35 referred to by the 1st Respondent is the same Plo t 35 purchased by the Appellant. Nonetheless, the Appellant did not specify the extent of the alleged trespas s or demonstrate whether the 1 s t Respondent was in occupation of the whole or only a portion of the land. Without such evidence, the Court cannot r each a different conclusion 52. Ground no.2 is answered in the negative 53. Ground No.3: That the learned c hief m agistrate erred in law and fact when she dismissed herself , that the Plaintiff should pursue the people who sold to him land to get back his money. 54. I have already foun d under Ground One that the 2 n d Respondent sold Plot 35 to two different purchasers. The same plot claimed by the Appellant was found to be in the possession of the 1st Respondent, and the 2 n d Respondent admitted having sold it to both parties. While DW4 testified that the land had been subdivided into Plot 35A and Plot 35B, no such subdivision was established during the locus visit. The evidence on record , therefore , suppo rts th e conclusion that the 2 n d Res pondent sold the same plot twice.

9 | P a g e 55. Having proved that he purchased Plot 35 from the 2 n d Respondent for a consideration of UGX 5,000,000/=, the Appellant is entitled to a refund of the purchase price paid, together with any other rel ief that may properly flow from the 2nd Respondent’s breach of its obligations. 56. Ground N o. 3 is answered in the affirmative 57. Ground No.4: That the learned c hief m agistrate erred in law and in fact when she dismissed the plaintiff’s case with costs. 58. The Appellant having proved that he purc hased the suit land, the trial m agistrate erred in dismissing the same with costs. 59. Ground No. 4 is answered in the af firmative. 60. This appeal accordingly partially succeeds in the terms below; (a) The lower court orders and judgment are upheld save for the following; (i) The order dismissing the Appellant’s suit with costs is set aside. (b) The 2 n d Respondent shall refund to the Appellant the purchase price paid for Plot 35A, assessed at its current market value, within six (6) months from the date of this judgment. (c) Costs of this appeal are awarded to the Appellant to be paid by the 2 nd Respondent. I so order . ........................................... Justice Dr. Lubega Farouq JUDGE Judgment delivered electronically via the emails of t he Advocates of the parties on 8 t h of June, 2026.