Bahemurwaki and 2 Others v Nakate and 2 Others (Civil Appeal 24 of 2022) [2024] UGHC 1169 (13 December 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CIVIL APPEAL NO. 0024 OF 2022 (Formerly MSD Civil Appeal No. 05 of 2020) (Arising from Hoima, Civil Suit No. 060 of 2011)

#### **1. EMMANUEL BAHEMURWAKI**

#### **2. BYAGIRA JOSEPH**

**3. AKUGIZIBWE BONIFACE ANTHONY::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

### **1. NAKATE PLAXEDA 2. NYAMAIZI VIOLET** 3. NSUNGWA JOYCE ::::::::::::::::::::::::::::::::::::

[Appeal from the Judgment and orders H/W Kagoda Ntende, Chief Magistrate of Hoima at Kagadi in C. S No.05 of 2020 dated 13/2/2017]

### Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

### **Background**

- The Appellants herein sued the Respondents for a declaration that the suit $\mathbf{u}(\cdot)$ land located at Butema-Kafuransa L. C1, Buhanika sub county, Hoima District belongs to them, that the Respondents are trespassers and for orders of a permanent injunction against the Respondents from further acts of trespass, damages and costs of the suit. - It was the Appellants' case that they are owners of the suit land as direct $[2]$ beneficiaries of their late father **Byeitima Boniface**. They contended that they were born on the suit land and have been utilizing it undisturbed until early 2001 when the Respondents without any color of right nor scintilla trespassed

onto the suit land by way of cultivating crops while claiming ownership thereof.

- The Respondents on the other hand denied the Appellants' claims and averred $[3]$ that the suit land belongs to the estate of John Kahureire, the late husband to the $1^{st}$ Respondent and father to the $2^{nd}$ & $3^{rd}$ Respondents who acquired it in around 1965 by way of purchase from Phillip Kirikarama, Girimani Ndyanabaisi, Nasitanzia Nyakahara and Tiburihwa Florence, the then rightful owners of the land. - The Respondents contented and further averred that before the death of John $[4]$ **Kuhureire,** they lived peacefully as neighbours to the Appellants until 2001, when the Appellants encroached part of the suit land by fencing it off. That when the Respondents resisted the trespass, they were criminally prosecuted but the Appellants lost the criminal case. It was again in 2011 when the Appellants resumed trespass on the land by again fencing off the Respondents' gardens. - The Respondents filed a counter claim for a declaration that the suit land $[5]$ belongs to the estate of the late **John Kahureire** and that by virtue of the fact that they are beneficiaries to **John Kahureire's** estate they are entitled to the suit land which they have occupied and utilized by way of cultivation of food crops since 1965. That in the alternative, they have also established a customary interest thereon. - The trial Magistrate on his part, upon evaluation of the evidence that was $[6]$ adduced before him found grave inconsistencies in the Appellants' case and concluded that the suit land belonged to the estate of the late John Kahireire and not the estate of the late **Byeitima Boniface**, from whom the Appellant claim their interest. - The Appellants were dissatisfied with the judgment and orders of the trial $[7]$ Magistrate and lodged the instant appeal on the following grounds; - 1. The learned trial Magistrate erred in law and fact when he found that Kahureire John bought the suit land in 1965 from Kirikarama Phillip, Girimani Ndyanabaisi and Tiburihwa Florence without cogent evidence to support the purchase and thereby arrived at the wrong conclusion that the suit land belonged to the estate of the late John Kahureire.

- 2. The learned trial Magistrate erred in law and fact when he ignored and/or disregarded the evidence of the plaintiffs/Appellants (PW1, PW2, and PW4) as majorly contradictory and thereby came to the wrong conclusion that the plaintiffs [Appellants] had not discharged the burden of proof that the suit land belonged to them. - 3. The learned trial Magistrate erred in law and fact when he failed to address himself to the correct procedure to be followed at the locus in quo thereby occasioning a miscarriage of justice to the Appellants.

### Duty of the $1^{st}$ Appellate court

- It is now trite that the duty of the 1<sup>st</sup> appellate court as the present one is to $[8]$ review the record of evidence for itself in order to determine whether the decision of the trial court should stand. In so doing, court must bear in mind that an appellate court should not interfere with the discretion of a trial court unless it is satisfied that the trial court in exercising its discretion has misdirected itself in some matter and as a result, arrived at a wrong decision or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of discretion and that as a result there has been a miscarriage of justice, Stewards of Gospel Talents Ltd Vs Nelson Onyango, HCCA No.14/2008 & NIC Vs Mugenyi [1987] HCB 28. - This court shall therefore re-evaluate the evidence as was adduced before the $[9]$ trial court as a whole by giving it fresh and exhaustive scrutiny and then draw its own conclusion of fact and determine whether on the evidence the decision of the trial court should stand. See also Fr. Narsensio Begumisa Vs Eric Tibebega, SCCA No.17 of 2002.

### **Counsel legal representation**

[10] The Appellants were represented by Mr. Simon Kasangaki of M/s Kasangski & Co. Advocates, Masindi while the Respondents were represented by Mr. Robert Hatega of M/s Baryabanza & Co. Advocates, Hoima. Both counsel filed their respective submissions for consideration in the determination of this appeal.

[11] Both counsel argued grounds 1&2 together because both revolve around how the trial Magistrate evaluated the evidence before him to arrive at the conclusion that the suit land belonged to the estate of the late John Kahureire thus the judgment being in favour of the Respondents. I shall also proceed to tackle the 2 grounds of appeal together accordingly.

## Grounds 1&2: Evaluation of evidence

- [12] Counsel for the Appellants submitted that the trial court did not correctly evaluate the evidence on record and in many ways ignored the evidence of the Appellants without reason and thereby found the suit against them. That the Appellants inherited the suit land from their father who acquired the same before they were born by way of $1^{st}$ occupation of vacant land. Further, that the boundaries of the suit land include a sisal plant and obutigamu tree on the Northern side with Phillip Kirikarama, Butema Trading Centre on the southern side, a one Baryesiima on the Eastern side and Baganda on the West. That the Respondents encroached on the Appellants' land by 2 acres by way of cultivation of crops. - [13] Lastly, that the Appellants are neighbours to the Respondents and they were not aware of the sale of the suit land to the Respondents by Kirikarama Phillip and Girimani Ndyanabaisi. - The foregoing were indeed the evidence of PW1-PW4. Counsel contended that $[14]$ the trial Magistrate disregarded their evidence without reasons and thereby occasioned a miscarriage of justice to the Appellants. - [15] Counsel for the Respondents on the other hand in his submissions supported the findings and the decision of the trial Magistrate that he correctly came to the conclusion that the suit land belonged to the estate of the late John Kahureire and not the estate of the late Byeitima Boniface from whom the Appellants claim to derive their interest. That the trial Magistrate analyzed and evaluated all the evidence as adduced by the Appellants and the Respondents and upon considering the contradictions in the evidence of the Appellants, came to the conclusion that the suit land belongs to the estate of the late John Kahureire from whom the Respondents derive their interest and not to the estate of the late Byeitima Boniface from whom the Appellants claim to derive their interests.

[16] In the first instance, I find that it is not in dispute that both the families of the Appellants and the Respondent are neighbours to each other in Kifuransa village where the suit land is located. The $1^{st}$ plaintiff/Appellant, Bahemurwaki Emmanuel (PW1) at pages 1 & 2 of the proceedings testified thus:

> "I know my co-plaintiffs who are my brothers. We are of the same father. I know the defendants who trespassed on our land. The land is located in Butema, Kifuransa L. C1... They encroached on 2 acres.....we share the boundary with the defendants who are on the land of Phillip Kirikarama."

The 1st defendant, Plaxeda Nakate also testified at page 24 of the proceedings thus;

> "I know the plaintiffs [Appellants]. They are residents in our village Joyce and Violet (D2 & D3) are my children.... I know the father of the plaintiffs, is called **Byeitima Boniface**. He has been my neighbour of my land but there is a road which separate us."

The Respondents' witness, Venence Tingire (DW3) aged 75 years on the other hand testified at **P.30 of the proceedings** thus:

> "The land belongs to the defendants [Respondents]. It does not belong to the plaintiffs [Appellants]. I know the father of the plaintiffs well. He was called **Boniface Byeitima**.... He was bordering Phillipo. He was not a neighbour of the suit land."

- [17] According to counsel for the Appellants, DW3 contradicted the evidence of DW1 and DW2 who stated that they were neighbours to the Appellants. I don't agree that this was a contradiction. The context of DW3's evidence is that in $\cap$ 1965, the late **Kahureire** (husband to the $1^{st}$ Respondent and father to the $2^{nd}$ & 3<sup>rd</sup> Respondents) bought land (suit land) from Phillip which was bordering Boniface Byeitima, father of the Appellants. Prior to the purchase of the suit land, it is apparent that the defendants /Respondents were not neighbours-it is their purchase of the suit land that made **Byeitima** neighbor to it. - [18] It is therefore not in dispute that the Appellants' family and the Respondents' family are neighbours and they have respectively occupied and utilized their respective portions of land for a long time.

- [19] As regards the contradictions in the Appellants' case, the starting point is that S.101 of the Evidence Act imposes the burden of proof on the person alleging a set of facts. It is trite that the burden of proof is on he/she who alleges and the applicable standard of proof is on a balance of probabilities, Miller Vs Minister of Pensions [1947]2 All ER 372 and Lugazi Progressive School & Anor Vs Serunjogi & Ors [2001-2005] 2 HCB 12. - [20] In the instant case, in a bid to prove their case, Bahemurwaki Emmanuel (PW1), Balyesiima Selevest (PW2) and Mugaba John (PW3), all testified that the suit land belonged to the Appellants' father a one Byeitima who with his brother **Musonono** acquired it by way of $1^{st}$ occupation of vacant land. That Musonono and his only child passed on and left the land to the Appellants' father, Byeitima. The land measures 2 acres. The boundary marks between the suit land and the side of the Respondents is "obutigamu" trees and sisal plants. PW1 explained that the foregoing boundary marks of the obutigamu trees and sisal were destroyed and therefore currently unavailable though he emphasized that he could identify their traces. Then lastly, PW1 stated thus:

"Apart from this land [suit portion of land] they [plaintiff/Appellant] *owned another piece of land.* My father was buried on the suit land."

[21] In his scanty notes at locus in quo, the trial Magistrate did not allude to his findings as regards the traces of the boundary marks **PW1** committed himself to show court or the grave of his father **Byeitima** on the suit portion of land. However in his judgment, the trial Magistrate observed thus:

"The sisal, Butigamu trees and acacia trees which were referred to by the plaintiff as the boundary marks, none was seen."

Nevertheless, **Mugabi John** (PW3) had testified in court thus: "The defendants [Respondents] are neighbours of this land. They share boundaries. The boundary marks are sisal plants on the lower side. On the upper side is 'obutigamu' trees. These I don't know if there are still there. I live $\frac{1}{2}$ km from the suit land.... I one time hired that land and grew there tobacco. This was on the suit land and I did so for one year."

Though **PW3** was last on the land in 2011, during cross examination, he emphasized that there are no graves on the land in dispute. Indeed, as per the

trial Magistrate's sketch map/plan of the suit portion of land which detailed features thereon, there is no indication of any grave.

- [22] As a result of the totality of the above, I do find it logical that since it is more probable that the Appellants' father died before 2001, when the Respondents encroached on the suit land, there would be no evidence that the Appellants' father was buried on the suit land. As regards the alleged boundaries of the obutigamu trees and sisal plants, it is clearly evident that such boundary marks had long ceased to be available and would not be available for observation by the trial Magistrate while on locus. - [23] As regards the size of the portion of land the Appellants claimed to had been trespassed on by the Respondents, the $1<sup>st</sup>$ plaintiff (PW1) was very clear. He stated that apart from the suit land, they owned another piece of land. The land in issue is 2 acres. This evidence is consistent with that of Elizabeth Kyalikampa (PW4), sister to the plaintiffs/Appellants, save for a further explanation that their father was using 5 acres of land (which comprises of the other piece of land PW1 referred to) and it is the 2 acres in dispute which were part of the 5 acres. - [24] In view of the above, I do not see any contradiction as regards the size of the portion of land in dispute between the evidence of $PW1$ and $PW4$ as the trial Magistrate found and counsel for the Respondents urge me to believe or find. - [25] The above notwithstanding, I however find that the case of the Appellants was seriously discredited by the evidence of Balyesiima Selevest (PW2) who at **page 11 of the proceedings stated thus;**

"From my home to the suit land is about 4 acres. Kahureire used the land in dispute. This was long time ago."

PW2 thus recognized that Kahureire, the husband to the 1<sup>st</sup> Respondent and father to the $2^{nd}$ & $3^{rd}$ Respondents was in occupation and utilization of the suit land before the dispute arose. This corroborated the evidence of the late Kahureire's wife, Plaxeda Nakate aged 75 years who testified that the land in dispute belonged to her having been bought by her late husband and others who include Phillip's brother, Ndyanabaisi Girimani (DW1) in 1965 though the purchase agreement was not available with her as per her explanation, it was taken away from her. Even without a copy of the purchase agreement, this court finds that there was overwhelming evidence that her late husband had

been in occupation and utilization of the suit land as was also found by the criminal court vide Masindi Chief Magistrate's court at Hoima, Crim. Case No.18/2003 where she and her daughter had been charged with the offence of Malicious damage to property C/s 315(1) PCA (D. Exh.1) and both were found not guilty of the offence and were accordingly acquitted.

- [26] The above was also consistent with the findings of the trial Magistrate at locus which are to the effect that the suit portion of land were being utilized by the Respondents not as trespassers but as owners as evidenced by **PW2**. - [27] In conclusion, I find that the trial Magistrate evaluated and weighed the evidence of both the Appellants and the Respondents and with reasons rejected the evidence of the Appellants and agreed with the evidence of the Respondents. I do not have any reasons to fault him. He rightly reached a conclusion that the suit land belonged to the late **Kahureire John** from whom the Respondents derive their interest and not **Byeitima Boniface** from whom the Appellants derive their interest thus dismissed the Appellants' claim with costs and entered judgment in favour of the Respondents in their counter claim accordingly as the rightful owners of the suit land. - [28] The $1^{st}$ and $2^{nd}$ grounds of appeal are found devoid of any merit as they both accordingly fail. - Ground 3: The learned trial Magistrate erred in law and fact when he failed to address himself to the correct procedure to be followed at the locus in quo thereby occasioning a miscarriage of justice to the Appellants. - [29] It is trite that the purpose of visiting locus in quo is to check on the evidence given by the witnesses in court, not to fill in the gaps to bolster the parties case, Siwa Bonin Vs John Arap Kissa, HCCS No.58 of 2007 and David Acar Vs Alfred Aliro [1982] HCB 60. - [30] In this case, counsel for the Appellants criticized the trial Magistrate for his failure to note court's observation and findings at locus in quo and not giving the opportunity to the Appellants to show to court the boundary marks that existed. - [31] As I have already found, the evidence of the parties on record is to the effect

that the alleged boundary marks of the obutigamu trees and sisal plants were not currently in existence. The $1^{st}$ Appellant nevertheless committed himself to show court the traces of these boundary marks. At locus, the record is to the effect that the parties toured the court through the disputed land and all the boundaries.

- Though I agree that the trial Magistrate's locus proceedings are scanty and $[32]$ eventually not useful, he drew a sketch map/plan that highlighted the features of the suit land on the ground. The decision of the trial Magistrate was nevertheless mainly based on the evidence that was adduced in court by the parties and since the dispute between the parties in court was over ownership of the parcel of land measuring 2 acres which the trial Magistrate ruled on, I find that the omission of the trial Magistrate at locus by failing to record the details of his observations did not occasion any miscarriage of justice to the Appellants. - [3] Lastly, there is no evidence that he allowed a one **Kagaga Winfred** to testify at locus when not a witness in court as alleged by counsel for the Appellant. - [34] As a result, of the above, I find that the $3^{rd}$ ground of appeal is also devoid of any merit. It accordingly fails. - [35] All in all, the entire appeal is found to lack merit. It is accordingly dismissed with orders that the judgment and orders of the trial Magistrate are upheld and costs of the appeal go to the Respondents as the successful parties.

Dated this 13<sup>th</sup> day of December, 2024.

**Byaruhanga Jesse Rugyema JUDGE**