Bigirwa and 2 Others v Kiirya (Civil Appeal 3 of 2017) [2023] UGHCLD 328 (20 July 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MASINDI

CIVIL APPEAL NO. 003 OF 2017 (Arising from Kirvandongo, C. S No.0043 of 2012)

### 1. BIRIGWA JACOB

### 2. APIO ROSE

**:::::::::::: APPELLANTS** 3. SEKABIRA JOSEPH ::::::::::::::::::::::::::::::::::::

### **VERSUS**

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* KIIRYA STEPHEN :::::::::::::::

### Before: Hon. Justice Byaruhanga Jesse Rugyema

### **JUDGMENT**

- This is an appeal from the Judgment and/or decree of the Grade 1 $[1]$ Magistrate, Kiryandongo delivered on the 24<sup>th</sup> day of March 2016. - The facts of the appeal are that the Respondent filed a suit against the $[2]$ Appellants in the Chief Magistrate's court of Kiryandongo for inter alia, a declaration that he was the rightful owner of the suit land located at Kisekura, Kiryandongo District and that in 2001, the Appellants without any color of right did trespass onto the suit land and have constructed houses and carried out cultivation thereon. - The Appellants on the other hand denied the Respondent's claims and $[3]$ contended that the suit land belonged to the late Yolamu Mutumba, the father of the $1^{st}$ and $3^{rd}$ Appellants and father in law of the $2^{nd}$ Appellant through whom they derive their interest on the suit land. They averred

$\mathbf{1}$

that the Respondent used to stay in Kitwara, Kiryandongo District with his father, Kamutaga but that upon the demise of his father, the Respondent came to stay with his uncle Yolamu Mutumba who in the due course offered him 10 acres of land for his settlement. That otherwise in 2001, a proper boundary demarcation presided over by the L. C1 chairperson was conducted in the presence of the Respondent, his children and elders in the village.

- The trial Magistrate on his part found that the suit land originally $[4]$ belonged to the late Yolamu Mutumba who gave him some portion of land of which he qualifies to be a bonafide occupant. However, that from the original boundary marks/demarcations comprised of over grown trees, the Appellants trespassed into the Respondent's portion of land by at least 3 acres. As a result, the trial Magistrate ordered for the surveying off the suit land 3 acres in favour of the Respondent. - The Appellants were dissatisfied with the decision of the trial Magistrate $[5]$ and filed the instant appeal on the sole ground as contained in the memorandum of appeal thus; - 1. Having found that the Respondent was given land by Yolamu Mutumba, the Appellant's father and father in law respectively, the learned trial Grade 1 Magistrate failed to properly evaluate evidence on record and came to a wrong conclusion in giving away 3 acres of the land to the Respondent. - The Respondent on the other hand filed a Notice of cross Appeal wherein $[6]$ he expressed 3 grounds of appeal: - 1) The trial Magistrate erred in law and in fact when he reduced the Respondent/plaintiff's claim to only 3 acres and that the remaining land belongs to the defendants. - 2) The trial Magistrate erred in law and fact when he failed to evaluate evidence on record thereby reaching a wrong conclusion. - 3) The trial Magistrate erred in law and in fact in not awarding damages and costs of the suit to the Respondent/Cross Appellant.

# **Preliminary objection**

In his submissions, counsel for the Appellants Mr. Lubega Willy raised a $[7]$ preliminary point of law to the effect that the Respondent's cross Appeal is incompetent, illegal on record and a nullity on the grounds that it was illegally filed out of time contrary to S.79(1) (a) CPA and that it was improperly instituted by notice of cross appeal contrary to 0.43 r.1 CPR which provide a mode of filing an appeal by Memorandum of Appeal.

# 1. Whether the Respondent's cross appeal was filed out of time.

#### [8] Under $S.79(1)(a)$ & (2) CPA, it is provided thus;

- "(1) Except as otherwise provided in any other law, every appeal shall be entered- - (a) Within thirty days of the date of the decree or order of the court;... but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed. - (2) In computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded." - In the instant Cross appeal, the Respondent filed the Notice of cross $[9]$ appeal on 15/3/2017 but court had decided the case on 24/3/2016 when the decree was also accordingly endorsed. The statutory period within which to file an appeal being within 30 days from the date of judgment and Decree, the Respondent was required by law to first seek leave of court extending the time within which to cross appeal showing sufficient reasons for appealing out of time which the Respondent did not do, see Ojara Vs Okware, HCMA No.23 of 2017 [2018] UGHCCD 42. - [10] In Luzinda George Vs Edward Wasswa HCCA No.39 of 2009, it was held that "appeal from Magistrate Grade One and Chief Magistrate shall be lodged in High court within 30 days, from the date of decree or order... This appeal thus has no merit. It is accordingly dismissed."

[11] In the instant case, since the lower court record i.e, judgment and the proceedings were certified on 29/7/2016 and 2/11/2016 signifying that they were by then ready for collection by the Respondent/Cross Appellant, filing the appeal after a period of more than 3 months when the proceedings were ready, in the absence of any good cause provided by the Respondent, his appeal is found being out of time and it is therefore bound to be dismissed. The cross appeal is in the premises dismissed for being incompetent and illegal on court record for it was filed out of time.

## 2. Whether the Cross appeal was improperly instituted by a notice of cross appeal.

[12] Under **O.43 r.1 CPR**, it is provided thus;

"Every appeal to the High court shall be preferred in the form of a memorandum signed by the appellant or his or her advocate and presented to the court for that purpose."

- [13] In the instant case, the Respondent commenced his cross appeal by filing a notice of cross appeal. In Sempebwa William Vs Byanugu Muhamed, HCCA No.12 of 2012 it was held that "the legal effect of noncompliance with Order 43 rule 1 CPR by instituting an appeal by notice of appeal as opposed to memorandum of appeal such an appeal is irregular hence an abuse of the court process and should be dismissed with costs." - [14] In conclusion, I find that the Respondent's notice to cross appeal does not constitute a cross appeal and therefore, the cross appeal was improperly instituted. 2ndly, the Cross appeal was filed out of time. As a result, the Respondent's cross appeal would in the premises be dismissed with costs to the Appellants. - [15] However, since the Notice of Cross Appeal contained grounds of appeal which mainly revolve around the evaluation of evidence, similar to the sole ground of the Appellant, for purposes of ensuring ends of justice which require that the matters in the controversy between the parties be

dealt with by evaluating the evidence on record and in this case, the Appellants having not shown that they would suffer any prejudice if the Respondent's grounds of appeal as contained in the Notice of appeal are considered, I proceed to consider the merits of the Appeal.

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

[16] The duty of this court as a first appellate court is to re-examine, reappraise and re-evaluate the evidence on record and come to its own decision and in so doing, it should subject the evidence on record to a fresh and exhaustive scrutiny, Banco Arabe Espanol Vs Bank of Uganda, SCCA No.8 of 1998 & Kamo Enterprises Ltd Vs Krystalline Salt Ltd, **SCCA No.08 of 2018.** It follows therefore that in the instant appeal, this court is to re-evaluate the evidence before it and address its mind to the evidence that was presented by the parties as a whole.

# General ground of Appeal: Whether the Appellants trespassed on the Respondent's land.

- [17] Counsel for the Appellants submitted that the trial Magistrate did not properly subject the whole evidence to an exhaustive legal scrutiny and as a result, reached a conclusion that was not correct when he decided that the Respondent be given 3 acres having found that the Respondent was given land by **Yolamu Mutumba**, the Appellants' father and father in law. - [18] Counsel for the Respondent Ms. Zemei Susan on the other hand submitted that had the trial Magistrate properly analysed the collective pieces of evidence presented before court, he would have found that the Respondent is the rightful owner of the suit land. - [19] **S.101(1) of the Evidence Act** on the burden of proof provides that; "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist."

- [20] As in all civil cases therefore, the burden of proof lies on the plaintiff/Respondent and the standard is on a balance of probabilities; Kamo Enterprises Ltd Vs Krystalline Salt Ltd, Supra. - [21] In his bid to prove his case, the Respondent at page 5 of the typed **proceedings** testified thus;

"I got that land (suit land) long time ago. That land was empty. I came to a neighbour called **Ernest Kabiiti** and I asked him about the vacant land. He told me that it was free and that I was free to occupy it. He was the only person staying around. This was around 1950. He himself took me around and showed me the boundaries of the land.

We were wit son called **George Mpangire** (sic). The land started from *a Musita tree. Its trunk is still there."*

**George Mpangire** testified as **PW2**. He stated thus;

"*My father was Ernest Byegarezo.* He is dead...

I know the plaintiff(Respondent)...

He came to the land in 1950. It is my father who gave him the land. I was young. I know the boundaries of this land. On the East, there is a trunk of Mutuba tree. In the North, there is a muswa tree (sic). In the South, there is a river called Nyakasenyi and in the West, there is a road." $\mathcal{L}$

- [22] As for the Appellants, their evidence is to the effect that there was a dispute over boundaries between Yolamu Mutumba from whom they derive their interest and the Respondent and the dispute was settled by the L. Cs who made demarcations by planting majorly miramura and or Bijumura trees. Their evidence was corroborated and supported by that of Katusabe Omubiito Johnson (DW4) who had been the L. C1 chairperson of the area for 20 years and chaired the boundary dispute settlement between **Yolamu Mutumba** and the Respondent. - [23] It's apparent from the evidence of the L. C1 chairman (DW4) that the demarcation of the Respondent's portion of land was based on evidence as presented by **Yolamu Mutumba** regarding the land he gave or offered

$\mathbf{6}$

to the Respondent. The settlement was reduced in writing and exhibited as **D. Exh.1** without any objection from the Respondent.

- [24] According to the Appellants and as per their pleadings, the settlement reflected the portion of land measuring approximately 10 acres which **Yolamu Mutumba** offered the Respondent. - [25] The Respondent himself at **page 6 of the typed proceedings** stated thus; "The chairman, I and Mutumba showed each other the demarcations. The demarcations were done and we planted demarcation trees... The trees are still there. All this was done on 14/4/2001." - [26] From the foregoing, it is clear therefore that the fact that the Respondent was given land by the Appellants' father Mutumba is not hearsay evidence as counsel for the Respondent argued. It was the basis of the dispute boundary settlement by the L. Cs on $14/4/2001$ between Mutumba (who offered the portion to the Respondent) and the Respondent. If the Respondent is to be relied on as regards his claims, then, he would have been expected to lead and show court while at locus the boundaries of his land as he presented them in court i.e, a trunk of a musita tree (evidence of PW1) and trunk of the mutuba tree on the east and musita tree in the north (evidence of PW2). The Respondent did not make this presentation at locus as required by the rules governing locus which ae the effect that the purpose of locus visit is to enable court check on the evidence given by the witness in court; Fernandes Vs Noroniha [1969] EA 506. The Respondent's failure to do so is evidence that he was in agreement and therefore contented with the boundary settlement (D. Exh.1) and was bound by it. - [28] On the part of the trial Magistrate, in his judgment, he relied on the sketch map he drew while at locus. The sketch map however shows clearly that it is the Appellants in occupation of the suit land and the Respondent is outside as per the boundary mark trees (miramura). The alleged and/or purported 3 acres extending into the disputed land is not indicated on the sketch map and therefore it is not clear where the trial Magistrate developed the notion that the Appellants trespassed into the Respondents portion of land by the said 3 acres.

- [29] As a result, in conclusion, I find that there is ample evidence on record that **Yolamu Mutumba** offered the Respondent land approximately 10 acres which was formalised by the settlement between Yolamu Mutumba and Kiirya Stephen, the Respondent dated 14/4/2001 (D. Exh.1). The Appellants could not therefore be found trespassers on the suit land begotten from **Yolamu Mutumba**. It was therefore an error on the part of the trial Magistrate in decreeing 3 acres to the Respondent out of the disputed land. - premises, the sole ground of appeal $[30]$ In the is allowed. The Respondent/Cross Appellant's grounds of appeal are devoid of any merit. The judgment and orders of the trial Magistrate in respect of the 3 acres being decreed to the Respondent are set aside. - [31] The Appellants are granted costs of this Appeal.

Dated at Masindi this 20 day of July, 2023.

**Byaruhanga Jesse Rugyema IUDGE.**