Akibwa v Nyandera and 2 Others (Civil Appeal 48 of 2023) [2023] UGHCLD 343 (31 August 2023)

#### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT HOIMA**

#### **CIVIL APPEAL NO. 48 OF 2023**

### **(Formerly MSD Civil Appeal No.0003 of 2015)** (Arising from Civil Suit No.08 of 2012 Buliisa)

**JOHN AKIBWA JAMITO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

- **1. SOFIA NYANDERA** - **2. VINCENT WATHUM** - **3. ROGGERS TUMUSIIME ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **JUDGMENT**

- [1] This is an appeal from the judgment of **H/W Okongo Japyem,** Magistrate Grade 1 of Buliisa at Buliisa dated the 19th of December 2014. - [2] The Respondents; **Sofia Nyandera** (1st plaintiff), **Vincent Wathum** (2nd plaintiff) and **Roggers Tumusiime** (3rd plaintiff) sued the Appellant/Defendant, **John Akibwa Jamito** in the lower court, inter alia, for a declaration that the suit land located at **Mubaku L. C1, Ngwendu sub county, Buliisa District** belongs to the Respondents and that the Appellant/defendant was a trespasser thereon. - [3] It was the Respondents' case that the 1st Respondent acquired the suit land in 1980's by way of purchase from a one **Plasidi Kisaho** and in the 1990's, the 1st Respondent sold part of it to the 2nd Respondent and gave another part to the 3rd Respondent, her biological son and stayed with the remaining part for her own use.

- [4] That the Respondents have since each utilized the suit land by way of cultivation and growing of crops and constructing structures thereon without any disturbance or interference from any 3rd party until the year 2008, when the Appellant without lawful authority, claim of right or legal excuse but with intent to defraud, unlawfully trespassed on the land by way of damaging their crops, slashing, cultivating and planting of seasonal and permanent crops. - [5] The Respondents contended that as a result of the Appellant's acts of trespass, they suffered loss, damage, anguish, psychological torture, inconvenience and have been denied of their rightful ownership and use of the land which they held the Appellant liable for compensation. - [6] In his defence, the Appellant denied the Respondents' allegations and contended that he litigated the suit land with the Respondents before the L. C1 & II wherein the suit land was decreed to the Appellant and that besides, the Respondents were bound by the Agreement they made before the Magistrate's court Buliisa where it was agreed that they do vacate the suit land in favour of the Appellant, the rightful owner. - [7] Upon the trial Magistrate's evaluation of the evidence as adduced by the parties before him and locus findings, he found and ruled that the decision of the L. C1 and L. CII are not binding or have authority on the Respondents who did not agree with it and that the Appellant who resided in **Wanseku village** had no land in **Mubaku village** unlike the 2nd Respondent who had a house and crops there. He declared the Respondents as the rightful owners of the suit land. - [8] The Appellant was dissatisfied with the decision of the trial Magistrate and lodged the present appeal on the following grounds: - *1. That the learned trial Magistrate erred in law and fact when he wrongfully evaluated the evidence and as a result made wrong findings on the issues.* - *2. That the learned trial Magistrate erred in law and fact when he misdirected himself on the principles of law namely, the burden of proof and the standard of proof.*

- *3. The learned trial Magistrate erred in law and fact regarding the manner in which he conducted locus proceedings and the findings therefrom occasioning a miscarriage of justice.* - *4. The learned trial Magistrate erred in law and fact in relying on extraneous matters thereby reaching a wrong decision.* - [9] On appeal, the Appellant was represented by **Mr. Innocent Kabigumira** while the Respondents were represented by **Mr. Simon Kasangaki**. Both counsel offered oral submissions with the permission of court. In the course of the Appeal, the 1st Respondent, from whom the 2nd and 3rd Respondents derived interest was reported to had demised and as a result, by consent of both counsel, the 1st Respondent was on 21/4/2017 accordingly struck off the record. - [10] Counsel for the Appellant argued all the grounds of appeal save the 3rd one together since they revolved around the evaluation of evidence. He submitted as follows: - 1. During scheduling, the deceased 1st Respondent indicated that she inherited the suit land from her deceased late husband but during her testimony, she said that she bought the suit land from **Plasidi** but does not recall when she purchased it. - 2. The deceased 1st Respondent testified that she purchased 11/<sup>2</sup> acres from **Plasidi** but **Plasidi** (PW1) testified that she sold 1 acre measuring 30 x 50 metres. That the trial Magistrate erred in law and fact to find that the Deceased 1st Respondent sold an acre, without evaluating evidence as regards where another half-acre came from. He concluded that the answer is that it was the Appellant's land. - 3. That **Kadige Margaret** (PW2), she stated that the Deceased 1st Respondent bought the land from a one **"Bilandi"** yet in cross examination she revealed that the 1st Respondent bought it from **Plasidi** and that she never knew the land. That the implication is that there must be 2 pieces of land and therefore, she could not have corroborated the evidence of the 1st Respondent as the trial Magistrate found. - 4. That the Appellant elaborated how he acquired the suit land which neighbours the 1 acre of **Plasidi** and I acre of the 1st Respondent, **Sofia Nyandera,** separated mainly by a road but the trial Magistrate ignored

this evidence of the Appellant and concluded that he was not convinced with his evidence without giving reasons.

- [11] As regards the manner in which the trial Magistrate conducted locus, counsel for the Appellant submitted as follows; - 1. No date was set for locus visit but there is a record of locus proceedings purporting to show that locus took place in the presence of the Respondents and absence pf the Appellant. He concluded that the trial Magistrate erred to visit the locus in the presence of one party, the Respondents, for whom he ruled the suit land in their favour if at all it took place. - [12] In reply, counsel for the Respondents submitted as follows: - 1) That the Respondents testified how each acquired his/her portion of the suit property and their evidence was not rebutted in cross examination. - 2) As regards the Deceased 1st Respondent's acreage of the suit land, that **Plasidi** (PW1) was in a group called **"munyo"** (sic) corrected as **"wayo"** of 3 people and each acquired 3 acres of land of which she sold 1 acre to the Deceased 1st Respondent. Further, that evidence of **Kadige Margaret** (PW5) corroborated the evidence of the Respondents that the suit land was bought from **Plasidi,** that however, the name was wrongly typed as **"Bilandi"** in the proceedings**.** - 3) That there is no evidence that the suit land had been adjudicated upon by elders and L. Cs or the Magistrate Grade II in Appellant's favour because the decision of the elders and L. Cs and that of the Grade II Magistrate were not exhibited for admission in evidence. - 4) That the Appellant contradicted himself as to how he acquired the suit land when he stated that he acquired 7 acres at 500/= each from the County H/qs and then at the same time, claim to had acquired the land as a group by way of occupation in 1983. That there was therefore nothing corroborating the fact of acquisition of the suit land by the Appellant in 1983 from the Appellant's witnesses. - 5) As regards the manner in which the trial Magistrate conducted the locus, that though there were anomalies, not every error one attaches to the procedure adopted by the trial court is fatal to the case and

that indeed, in this case, this was a matter which could appropriately be decided upon basing on the evidence led in court and therefore, the anomalies in the conduct of the locus did not occasion prejudice to the Appellant.

## **Consideration of the Appeal**

- [13] The duty of this court as a first Appellate court is well settled. It is to evaluate all the evidence that was before the trial court and arrive at its own conclusion as to whether the findings of the trial court can be supported by the evidence that was adduced before the trial court; **Zaabwe Vs Orient Bank & Ors, SCCA No.4 of 2006.** - [14] In this appeal, this court is therefore required to evaluate all the evidence that was before the trial court and establish whether the position the trial Magistrate reached on both questions of the law and fact including the remedies were justifiable in the circumstances of the case.

## **Grounds 1,2 and 4: Evaluation of the evidence**

- [15] As regards how the Deceased 1st Respondent acquired the suit land, it is true that during the scheduling conference, court recorded the Plaintiffs/Respondents' brief facts of the case as, inter alia: *"The plaintiff No.1 acquired the suit land by inheritance from her deceased husband."* - [16] This was in sharp contrast to the 1st Plaintiff/Respondent's evidence in court and the pleadings. It is however my view, that it is the party's evidence as adduced in court and the pleadings which bind the party; **Jani Properties Ltd Vs Dar-es-salaam City Council [1966] EA 281,** See also **O.6 r.7 CPR.** In the premises, I would therefore find that the facts of the case recorded during scheduling conference would not be binding on a party unless they form part of the agreed upon facts during conferencing. The statement reflected in the scheduling conference therefore, that the 1st Plaintiff/Respondent "acquired the suit land by inheritance from her deceased husband" was not binding on the 1st Plaintiff/Respondent since

it did not form part of the agreed facts, her evidence in court or pleadings. In the premises, the statement cannot be regarded as forming any contradiction in the Respondent's evidence because that was not in her evidence.

- [17] It is also true that the Deceased 1st Respondent testified that she purchased 1 <sup>1</sup>/2 acres from **Plasidi** (PW1) whereas **PW1** testified that she sold her 1 acre. **Plasidi** (PW1) explained that she sold the Deceased 1st Respondent **1 acre, measuring 30 x 50 metres**. - [18] It is my view however, that the context of the evidence of these parties and witnesses has to be from their subjective point of view. There is no evidence that any measurements of the portions of land in question were made. The parties appear to had been giving approximate acreages. This must have been so because, in any case, the **30 x 50 metres** referred to by **Plasidi** (PW1) are not equivalent to an acre. - [19] In the premises, I find the contradiction explainable and insignificant which does not point to any deliberate lie by the Respondents and therefore, this court is entitled to ignore it, **Odur Vs Ocaye & 3 Ors, HCCA No.34/2018 [2019] UGHCC D 56.** - [20] As regards the evidence of **Kadige Margaret** (PW2) referring to the vendor of the suit land to the Deceased 1st Respondent as **"Bilandi",** I have cross checked with the handwritten script of the record, the witness referred to **"Plasidi"** (PW1) and not **"Bilandi".** As counsel for the Respondents rightly submitted, the indication of **"Bilandi"** was a mere typing error that arose from how the typist perceived the trial Magistrate's handwriting. - [21] In any case, the entire body of the case clearly show that the vendor was **"Plasidi"** who was neighbouring a one **Jamelwaki,** also referred to by **Ovoya** (PW3) as brother to the Appellant and the Appellant himself stated thus:

*"I acquired the suit land with Jamelwaki in the year 1983. Plasidi was a neighbour who owned one acre of neighbouring land.*

The typed record should therefore reflect the name "plasidi" and not "Bilandi"

- [22] As regards how the Appellant acquired the suit land, the Appellant testified that he acquired the suit land with his brother **Jamalwaki** in 1983 and acknowledge that **Plasidi** (PW1), from whom the Respondents derive their interest, as a neighbour who owned an acre. As I have already observed, inferences to the acreage are mere approximates. The Appellant also acknowledged in his evidence, that the Respondents in 1996, took over the interests of **Plasidi** (PW1) and started utilizing the land. According to him, the origin of the problem came in October 2006, when the Deceased 1st Respondent brought some L. C official who constructed on his land. - [23] The Appellant however testified that when the conflict arose, **Plasidi** was brought to settle him and the Deceased 1st Respondent by clarifying the status of the disputed portion of land and that the matter was decided in his favour upon which the Respondents were ordered to vacate. There is however no evidence to support these claims of the Appellant, be it in form of document or witnesses. - [24] The Appellant further claimed that as the conflict persisted, he reported the matter to L. C1 & II and the suit portion of land was decreed to him. Again, no proof was provided by the Appellant regarding this alleged litigation. **Mukayo Denis** (DW2), a member of the L. CII Committee that purportedly participated in the adjudication of the suit, did not exhibit any proof of their findings as court. The same apply to **Kamese Leonard** (DW4), a court clerk of the Magistrate Grade II before whom it is alleged that the consent Agreement was endorsed by the parties for the Respondents to vacate the suit land. That consent Agreement was not exhibited in court and no reason is offered by the Appellant as to why these vital documents were not exhibited. - [25] The Appellant had nevertheless attached to his pleadings certain photocopies of the documents, he intended to rely on. It is however the law that documents must be proved by primary evidence save where secondary evidence may be given of the existence, condition or contents where for instance where the original is shown or appears to be in the possession or power of the person against whom the document is sought

to be proved, **Ss. 63 & 64 of the Evidence Act.** See also **Dr. Kakonge Vs Bitabeho, HCCS No.755 of 1992 [1993] UGHC 8**.

- [26] In this case, it is clear that the documents attached to the Appellant's pleadings the original copies were either in the hands of the Appellant who was allegedly a party to the proceedings before the L. Cs or could be obtained from the L. Cs and or be certified accordingly for purposes of having them admitted in evidence. The Appellant neither bothered nor attempted to have these seemingly vital documents admitted in evidence to support his case. - [27] In their absence, the evidence of the Appellant, **DW1** and **DW2** are rendered hearsay and therefore of no value to the court. No wonder, the trial Magistrate disregarded their evidence. - [28] **George Kiiza Mugatu** (DW3) claimed that he was one of those who visited the site during the disputes of the 1st Respondent over her land. It is his evidence that when they measured from the neighbour's land of a one **Majune** they found **Majune** having crossed to the 1st Respondent's land which caused the 1st Respondent to also trespass to the Appellant's land. **DW3** however never told court the acreage or size of the extent of the trespass or documentary proof to that effect since his group got involved in the actual measuring of the portions of land that were in question. - [29] As a result of the foregoing, I do find that the trial Magistrate rightly ignored the Appellant's evidence regarding the decision of the L. Cs because it is majorly hearsay evidence without supporting proof. It was however a misdirection on the part of the trial Magistrate to state that such decisions would not be binding on the parties if they had been proved. - [30] For the above reasons, grounds 1, 2 and 4 of the appeal are found to be devoid of merit and as a result, they fail.

# **Ground 3: Anomalies of the locus in quo**

- [31] Although admittedly locus was riddled with far reaching anomalies which included the exclusion of the Appellant by failure to notify him of the date and time of locus, it is my view that still, the Respondents had proved their case during the trial in court and therefore the visiting of the locus in the absence of the Appellant did not necessarily prejudice the Appellant. Other available evidence on record in exclusion of locus still sufficiently found on a balance of probabilities, judgment in favour of the Respondents as the rightful owners of the suit land. - [32] In the premises, I find the entire appeal lacking merit and it is accordingly dismissed with costs.

Dated at Hoima this **31st day of August, 2023.**

**Byaruhanga Jesse Rugyema JUDGE.**