Asiimwe & 4 Others v Kezia & Another (Civil Appeal 5 of 1993) [1994] UGHC 111 (23 August 1994)

THE REFUBLIC OF UGANDA.

Supreme court.

IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. DR. MFP 5 OF 1993 (Original Fort Portal C. S. No. MFP 88/91)

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- I. PETER ASIIMVE - $2.$ **BENON BUSHONDO** - $3.$ JOHN KATUMBALE - $4\bullet$ STOPHEN NYAMUKAIKURU EDISA KIRABO

KEZIA ISINGOMA 2. KAMUKAMA

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THE HONOURABLE MR. JUSTICE J. P. M. TABARO. **BEFORE:**

This appeal was lodged by the original plaintiffs, that is, David Murwani, Peter Asiimwe, Benon Rushondo, John Katumbala, tephen Nyamukaikuru and Edisa Kirabo against the judgment and orders passed by the Magistrate Grade I, Fort Portal on 24/3/1993. The cause in issue concerns land situate in Mpara Sub County, Kyaka County in the District of Kabarole. The land in issue is claimed by the parties to the suit who allege, in turn, to have lawfully acquired it through or by grant from the Uganda Land Commission. The defendants (respondents before this Court) are Kezia Isingoma, and her daughter Evan Kamukama. It would appear David Murwani has since died. From the record of proceedings the late Murwani, it would seem, was father to some of the present appellants. As the application for the land was joint there does not appear to be any necessity for obtaining probate/letters of administration before David Murwani's survivors can pursue the suit. There was no

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objection raised in this regard by learned counsel for the respondents/defendants, Mr. Nyamutale. As will appear from appraisal of the evidence the crucial issue for determination is the location or locations of the land or lands applied for by the parties.

Some of the facts are not in dispute. However, before resume of the facts, one point which should have been raised as a reliminary objection, should be disposed of. It was urged as the first ground of this appeal and it will be dealt with as such.

Counsel for the appellants Mr. Musana, averred that Mr. Byaruhanga who did appear for the defendants/respondents in the Courts below for some time was not enrolled as an advocate or had no practising certificate. The same assertion was made just before the trial Magistrate Grade I wrote his judgment but after conclusion of hearing. From this Mr. Musana submitted that the proceedings were null and void. Learned counsel rightly pointed out, that in terms of 3S 63, 64, 65 of the Advocates Act, 1970 (Act 22 of 1970) it is an offence for anyone to appear as an advocate or practise as one, without the requisite qualifications. However, as is well known, the act is silent as to the validity of the proceedings in which such a person has taken part. In the case of George Nyakana versus Beatrice Kobusinge Nyakana & others, Civil Suit No. DR. MFP. $7/93$ , before this Court, a similar objection was considered. The Court was of the opinion that the offences committed do not affect the validity of the proceedings because Court saw no good reason for visiting the sins of an advocate upon his client. The first ground therefore fails.

From the record of proceedings before the trial Grade I Magistrate, it would appear in or about 1972 the plaintiffs jointly with some of their fathers applied for 777 hectares of land equivalent, it would appear, to 3 square miles. It is not disputed that in 1975 the plaintiffs were granted an offer for the same acreage of land, by the Uganda Land Commission, Exhibit P.2, on 22/4/1975. The application form, Exhibit PI appears to have been duly complied with. According to David Murwani, P. V. I and Peter Asiimye P. W. III, the land was wholly surveyed by I98I and survey markstones installed. The fixing of markstones is contested by the defendants. Plaintiffs allege that prior to the lodging of the application for a lease the land was acquired from the residents they found in the neighbourhood, described as bataka, by the witnesses. It is the case for the plaintiffs that while they waited for a certificate of title, as they collected money to meet the expenses involved, the defendants came and occupied part of the land already surveyed in favour of the plaintiffs. It is further lleged by the plaintiffs that the developments, or part thereof, which they had made in the land were demolished by the defendants who brought surveyors to survey the same area as had been offered and surveyed in favour of the plaintiffs. The developments allegedly destroyed were banana plantations and some other crops, wells, I9 in number, for watering animals, and temporary houses or huts. Other developments included, it is alleged, improvement of the pastures. The land was required for pastoral or grazing purposes. According to John Katumbala (P. W. II) the plaintiffs were arrested by the police brought by Kezia Isingoma Rukidi the first defendant, and whilst in custody in 1989 she caused her own survey markstones to be installed or fixed. The plaintiffs describe their land as being at a place called Kinoni, in Mpara Sub County, Kyaka County in the

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District of Kabarole as already indicated.

It was the case for the defendants that in 1984 Kezia Isingoma (D. W. I) did go to Bweyanjale in Mpara, Kyaka in the District of Kabarole and occupied an empty piece of land after being given the same by the area "Bataka", as well as the Sub Parish and Parish Chiofs. Subsequently, she applied for a lease of 500 acres of land for both grazing and residential purposes. The application form (Exhibit DI) appears to have been duly complied with. Later on a lease offer (Exhibit D2) was given to her after an inspection was carried out under the District Land Committee Chairman, Jaffer Kahwa (D. W. II). According to her testimony (D. W. I) elders, R. C. officials and chiefs certified that the land was vacant as she had found, and so the same was surveyed in her favour and markstones installed. It would appear that no certificate of title had been issued yet when the present suit was filed against her. According to the evidence of Kezia Isingoma Rukidi the Ist defendant (D. W. I) when the District Land Committee was still on the site inspecting, David Murwani (P. W. I) claimed that he had land within the area that was being inspected by the Committee but when challenged to produce the requisite documents as proof he failed to do so that day. Others with Murwani (P. W. I) made similar complaints. According to the first defendant (D. W. I) Murwani (P. W. I) sold his land to Nyamukaikuru and Kirabo while the first 4 plaintiffs are members of one family living on her land now. The first defendant's developments would seem to include a banana plantation and a permanent house. According to the Chairman of the District Land Committee, Jaffer Kahwa (D. W.2) when he and his committee inspected the land on $26/7/1989$ it was vacant and the residents of the area as well

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as chiefs and R. C. officials confirmed the same. However, Murwani $(P_\bullet\,\mathbb{W}_\bullet\,\mathbb{I}_\bullet\,)$ claimed that the land was his. Jaffer Kahwa $(D_\bullet\,\mathbb{W}_\bullet\,2)$ the District Land Committee Chairman, directed him to produce documentary proof of his claim within two weeks. According to Kahwa (D. W.2) the two weeks period clapsed without the required proof which Murwani (P. W. I) was supposed to produce, and therefore he recommended Kezia Isingoma Rukidi (D. 7. I) to be granted a lease ffer. The inspection form was signed on $3/8/1989$ . According to him (D. W.2) even the first defendant, Kezia Isingoma (D. W. I) did not have any developments on the land. The person who started surveying is Raphael Bwemi (D. W.6) a surveyor by profession. He started the work but was unable to complete it due to attack by a group of people who claimed the same land. Later his assistant took over but was also attacked by the same group. The land, of . 500 acres was supposed to be surveyed in favour of Kezia Isingoma $(D. W. I)$ the Ist defondant. In the opinion of Rapheal Bwemi $(D. W.6)$ reconciling the two applications the application of the plaintiffs or 3 square miles, at Kinoni, cannot interfere with the defendants application at Bweyanjale.

It is now settled that it is the duty of an appellate Court to evaluate the evidence itself and draw its own conclusions where it is apparent that evidence has not been properly evaluated by the trial Court - SELLE V ASSOC. MOTOR BOAT CO. LO $\angle$ 1968 $\bigtriangledown$ E. A. 123 at P. I29 para F. (See the judgment of Law J. A. as he then was) of the then Court of Appeal for East Africa. It must also be observed that a first appeal is by way of a retrial. The appellate Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should bear in mind that it has neither seen nor heard the witnesses and should make due

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allowance in this respect. In particular the appellate Court is not bound to follow the trial Court's findings if it appears either that the trial Court clearly failed on some point to take account of particular circumstances or probabilities material to estimate the evidence or of the impression based on the demeanour of a witness if inconsistent with the evidence in the case generally-ABDUL HAMEED SAIF V ALI MOHAMED SHOLAN (1955) 22 EACA 270 as in Selle's case (Supra) at P. 126 Para I. In the present case the rial Magistrate did not base his opinions on the demeanour of any witness but rather purported to draw inferences from the facts. The trial Magistrate hold that there was enough land for both groups of applicants without either encroaching on the other's land. The surveyor who did the work on behalf of the defendants/ respondents was of the same view. However, I find the trial Magistrates finding curious. According to the learned Magistrate there was no evidence that earlier the same land had been surveyed in favour of the plaintiffs/appellants. Hence he should have found it difficult or even impossible to know the size and extent of the land, 777 hectares, claimed by the plaintiffs. It must at the same time be emphasised that the trial Magistrate observed at the locus in quo that the whole piece of land claimed by the defendants forms part of the land claimed by the first plaintiff. Clearly the parties, both the plaintiffs and the defendants did lay claim to pieces of land which extend into each other. This is quite apparent from the observations made by the trial Magistrate at P.22 of the record of proceedings as well as the sketch phan, at P. 24 of the same record of proceedings.

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The evidence of Jaffer Kahwa (D. W. II), the District Land Committee Chairman, should not have been believed. He asserted

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that when he led his team to inspect the land applied for by Kezia Isingoma Rukidi (D. W. I) the first defendant, he found no disputes over the land; he later conceded that after the inspection Murwani, the first plaintiff, claimed that the land was his. Kahwa avers that he asked Murwani to produce documentary proof of his claim within two weeks. He (D. W. II) thereafter proceeded to recommend Kezia Isingoma (D. V. I) for acquisition of the land since within that period of two weeks Murwani failed to produce any document indicating that the land was his. Inspection of the land for which Kezia Isingoma (D. W. I) applied was conducted on 26/7/1989. The inspection report recommending the first defendant, Kezia Isingona to be offered the land is dated $3/8/1989$ , that is, only one week, not two weeks, after the date of the inspection. Clearly the District Land Committee recommended the first defendant to be offered the land under circumstances which would have destroyed Murwani's claim even if Kahwa (D. W. II) were telling the truth by asserting that he gave two weeks to Murwani to lodge his bjection. In any case Jaffer Kahwa's assertion is contrary to the testimony given by Kezia Isingoma herself (D. W. I). She (D. W. I.) testified in cross-examination, that on the day of inspection Murwani came with other people and complained that the land being inspected was theirs. According to Kezia Isingoma (D. W. I) on the land were huts belonging to Murvani. Clearly Jaffer Kahwa (D. W. II) is neither honest nor truthful. His evidence should have been discounted by the trial Court. The surveyor Raphael Bwemi (D. W. VI) stated that before he could complete the survey work he was attacked by a group of people. Subsequently, his assistant fx faced the same problem. These are people who did lay claim to the land being surveyed.

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It is not probable that these attackers would keep quiet at the time of inspection and wait to attack only when surveying was being carried out. The probabilities are that when the inspection team was at the site the plaintiffs raised objections as the testimony of the first defendant in case, confirms. Since there was a dispute to the land the same should have been submitted to a Court of law for adjudication so that the ownership would be resolved nce and for all. As it were the District Land Committee Chairman (D. W. II) dishonestly decided the question of ownership in favour of the defendants. The plaintiffs duly applied for the land in issue, as exhibits P. I, and P. II, clearly indicate. At the locus in quo, the trial Court found that the areas of land claimed by the contestants overlapped. It is remarkable therefore to hear Raphael Bwemi (D. W.6) the surveyor assert that there would be no clash if the areas of the respective contestants are reconciled. This assertion, in view of the first defendants' admission as well as that of Kahwa (D. W. II) Chairman, District Land Committee, is erely a misrepresentation of the state of affairs on the ground. Since the plaintiffs complied with the law and were offered the land earlier than the defendants I see nothing in law that can disturb their lease offer. They are entitled to have the land surveyed in their favour and a cortificate of title issued. The first defendant knew the land she applied for was occupied. She admitted there were huts on the land and Murwani (P. T. I) raised objections at the time her inspection team visited the site. The case for the plaintiffs is uncontradicted whereas the defendants' evidence mutually destroys each other in material particulars. Raphael Bwemi's assertion is of no consequence. It is not a question of reconciling the areas - the District Land Committee and the surveyors knowingly allowed the defendants to occupy land already

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allocated and offered to the plaintiffs. The defendants also become aware when Murwani raised objections and hence their claim is not bona fide. The appeal must be allowed. There will be an order of eviction against the defendants, a permanent injunction against the defendants in favour of the plaintiffs with costs. No evidence of general or special damages is on record; nor were any prayed for on appeal. No order for damages is made, therefore. In the final result the appeal is allowed, with costs.

> Sgd. - (J. P. M. TABARO ) RESIDENT JUDGE. $23/8/1994.$

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2nd & 6th Appellants present. Ist, 3rd, 4th absent. 5th appellant deceased. Ist Respondent present. Mr. Musana for appellants. Mr. Nyamutale not present.

Notice of judgment date was served upon both counsel.

Judgment read.

( J. P. $M$ . Sgd. TABARO) RESIDINT JUDGE. $23/8/1994.$