Biteteirweho v Nkunguru (Civil Appeal 23 of 2023) [2024] UGHC 362 (23 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

## CIVIL APPEAL NO. 23 OF 2023

# (ARISING FROM RUKUNGIRI CIVIL SUIT NO.011 OF 2020)

# **BETWEEN**

#### SEPRIANO BITETEIRWEHO ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### NZERA MARIA NKUNGURU :::::::::::::::::::::::::::::::::::

[Appeal from a Judgment of Chief Magistrate of Rukungiri Magistrate Court (Her Worship Mbabazi Edith Mary) dated 31st May, 2023.]

# **BEFORE: HON, JUSTICE TOM CHEMUTAL**

# JUDGMENT

This is a first appeal. It arises from the Judgment of the Chief Magistrate of Rukungiri Magistrate's Court, in Civil Suit No.11 of 2020, where the trial Court entered judgment in favor of the Respondent against the Appellant.

The brief background to this appeal is that; the Respondent filed the above Civil Suit against the Respondent and sought for the recovery of the suit land situated at Runyamunyu Cell, Bugangari Sub-County in Rukungiri District, a declaration that the gift of land to the 1st Defendant (Emmanuel Buregyeya) was a donation mortis causa, a declaration that the Appellant was a trespasser on the suit land, a declaration that suit land reverts back to the Respondent as sole owner, a declaration that the sale and purchase of the suit land between the Appellant and 1st Defendant (Emmanuel Buregyeya ) was fraudulent, among other prayers.

The Appellant filed his written statement of defence and denied the Respondent's averment in the plaint. The Appellant contended that he purchased the suit land from the 1st Defendant (Emmanuel Buregyeya) on the 3rd February, 2020, after conducting the due diligence on the suit land. The Appellant averred that he discovered that the 1st Defendant (Emmanuel Buregyeya) was a biological son of the Respondent and that the former was allowed to use part of suit land in 1998. He alleged that part of the suit land was sold to the Appellant and it was independently owned by the 1st Defendant (Emmanuel Buregyeya).

The trial Chief Magistrate entered the judgment in favor of the Respondent against the Appellant and made the following orders:- that there was a conditional gift of the suit land between the Respondent and 1st Defendant (Emmanuel Buregyeya), which was to be executed upon the death of the Respondent, that the Respondent was the rightful owner of the suit land, that the Appellant's action amounted to fraud. That the Appellant was a trespasser on the suit land. The Respondent was awarded general damages of UGX 8,000,000 (Eight Million shillings only), that the 1st Defendant (Emmanuel Buregyeya) did not participate in the fraud. The costs of the suit were to be borne by the Appellant.

The Appellant being dissatisfied with the decision, appealed to this Court in Civil Appeal No.24 of 2023.

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The Appellant's Memorandum of Appeal has five grounds of appeal which appear as follows:

- 1. The learned trial Chief Magistrate erred in law and fact in failing to evaluate properly the evidence on record hence reaching a wrong conclusion that the land belongs to the plaintiff/ Respondent. - 2. The learned trial Chief Magistrate erred in law and fact when she permitted a stranger to the suit to testify at locus hence occasioning a miscarriage of justice. - 3. The learned trial Chief Magistrate erred in law when she ignored gross contradictions made by the plaintiff/Respondent and her witnesses thus resulting into a wrong decision. - 4. The learned trial Chief Magistrate erred in law and fact when she awarded to the Respondent General damages of shs. $8,000,000/$ = without being pleaded and proved hence causing a miscarriage of justice to the Appellant. - 5. The learned trial Chief Magistrate erred in law and fact when she failed to conduct the locus in quo in accordance with recognized principles.

# Representation

The Appellant was represented by Counsel Aryanyinjuka Anthony from M/s Beitwenda & Co. Advocates while the Respondent was represented by M/s Bagyenda & Co. Advocates.

## **Submissions**

Both parties filed their respective submissions and authorities thereto, which I have taken into consideration while determining the merits of the appeal.

# Consideration of the court.

Before delving into the merits of the appeal, I will first resolve the preliminary objection raised by the Respondent. The Respondent contended that this appeal was filed out of time, without seeking leave of the Court as required by the law. Counsel contended the judgment of the trial Court was delivered on 31st May 2023 and he alleged that the appeal was filed in the Court on 12th October, 2023 after the lapse of 30 days required by law.

Counsel for the Appellant contended that the judgment of the trial Court was delivered on 31st May,2023 and the Appellant filed in Court the letter requesting for the typed and certified proceedings on 6th May, 2023. That the certified record of the proceedings was availed to the Appellant on 3rd October and the Appellant filed the memorandum of appeal on the 12th October 2023.

I have perused the record of appeal; I find that the appeal was filed in the Court on time, hence I overrule the preliminary objection raised by the counsel for the Respondent.

The duty of the first appellate Court has been defined in several cases. In the case of Administrator General vs Bwanika James and Others, Supreme Court Civil Appeal No.7 of 2003, Justice Oder, JSC, held:

"It is a well-settled legal principle, embodied in Rule 29 (1) of the Court of Appeal Rules, that on a first appeal, the parties are entitled to obtain from

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the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions: See Coghland Vs. Cumberland (1898) 1 ch. 704 (Court of Appeal of England): and Pandya V R. (1957) E. A 336)"

Reference can be made also to Fr. Narsensio Begumisa and Others v Eric Tibebaga, Supreme Court Civil Appeal No.17 of 2002 and Goustar Enterprises Ltd Vs Oumo [2006] EA 77.

I have perused the judgment of the trial Chief Magistrate, the record of the appeal, and the parties' written submissions and authorities thereto cited by Counsel.

In ground 1, Counsel for the Appellant contended that the Appellant purchased the suit land from the 1st Defendant (Emmanuel Buregyeya) on 3rd February 2020 and the sale agreement was executed. He submitted that the Appellant did due diligence before entering the said land transaction. He added that there were disagreements between the 1st Defendant (Emmanuel Buregyeya) and the Respondent over the suit land. That they were resolved by Local Authorities and thereafter, the suit land was declared to be independently owned by the 1st Defendant (Emmanuel Buregyeya) which in turn the latter sold to him. Counsel stated the purchase transaction was confirmed by DW2 and DW3. Counsel submitted that the Respondent in her evidence confirmed that the that 1st Defendant (Emmanuel Buregyeya) sold the suit land to the Appellant.

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Counsel for the Respondent submitted that the Appellant did not carry out the due diligence and that he was aware there were misunderstandings between the Respondent and 1st Defendant (Emmanuel Buregyeya). That the Appellant knew the Respondent was in occupation of the suit land and he did not consult before allegedly purchasing the same. That the Appellant did not prove by evidence of the purchase of the suit land at the trial Court.

The trial Court visited the locus in quo of the suit land and found that the Respondent was in possession of the suit land. The suit land had a banana plantation, coffee, and sweet potatoes all belonging to the Respondent. The trial Court found that the Respondent and 1st Defendant (Emmanuel Buregyeya) did not share the suit land and that the 1st Defendant (Emmanuel Buregyeya) denied ever selling the suit land to the Appellant.

The Court also noted that the Appellant did not prove by evidence that the Appellant purchased the suit land from the 1st Defendant (Emmanuel Buregyeya). The trial Court further held that the Appellant did not consult the Respondent before allegedly purchasing the suit land which the respondent was in full possession of.

I, therefore, concur with the finding of the trial Court that there was no valid purchase of the suit land by the Appellant. The 1st Defendant (Emmanuel Buregyeya) who is the alleged seller, denied to have sold the suit land to the Appellant. Hence issue one is answered in the negative.

In grounds 2 and 5, Counsel for the Appellant contended that the trial Court erred when it permitted to the stranger to suit to testify at locus in quo and he also contended the locus in quo was not conducted in accordance with the law.

The alleged stranger whose evidence was taken at the locus in quo is the Emmanuel Buregyeya who was the 1st Defendant at the trial. He testified as the Respondent's third witness.

The trial Chief Magistrate gave the reasons for allowing the evidence of the 1st Defendant (Emmanuel Buregyeya) which were that the said 1st Defendant was party to the suit and that he was very sick and unable to walk.

The trial Court allowed the evidence of the said witness in order to enable it to reach a logical conclusion since it had been alleged that he had sold the suit land to the Appellant.

The 1st Defendant (Emmanuel Buregyeya) gave his evidence in chief at the locus in quo and thereafter he was fully cross-examined by the Appellant. Hence there was no miscarriage of justice occasioned to the Appellant. Grounds 2 and 5 are answered in negative.

In ground 3, the Appellant contended that there were gross contradictions made by the Respondent's witnesses. That the Respondent testified that the son, 1st Defendant (Emmanuel Buregyeya) sold part of the suit land to the Appellant on 3rd March, 2010 and the 1st Defendant (Emmanuel Buregyeya) denied having sold the suit land to the Appellant. Counsel for the Appellant contended that the Respondent stated that the 1st Defendant (Emmanuel Buregyeya) sold the suit land to the Appellant when was mentally sick and he alluded that it was not pleaded in her pleadings.

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Counsel for the Respondent contended that there were no contradictions in the Respondent's evidence.

I have already resolved in issue 1, that there was no valid land sale transaction between the Appellant and the 1st Defendant (Emmanuel Buregyeya).

On the contradictions, the Respondent had believed that the son 1st Defendant (Emmanuel Buregyeya) had sold the suit land to the Appellant. That is why she sued the Appellant and her son (1st Defendant). The Respondent contended that the Appellant trespassed on the suit land when he cut down the Respondent's crops alleging to have bought the suit land from the 1st Defendant (Emmanuel Buregyeya).

It turned out from the evidence of the 1st Defendant (Emmanuel Buregyeya) that he had not sold the suit land to the Appellant which was confirmed by the trial Court and now this Court. Hence I find no contradictions as alleged by the Appellant and ground 3 is answered in the negative.

In ground 4, the Appellant contended that the trial Court awarded the Respondent general damages of $8,000,00/$ = (Eight Million Shillings) without being pleaded and proved which occasioned a miscarriage of justice to the Appellant.

The Respondent in paragraph 7 of the amended plaint averred that she had suffered from mental anguish, inconvenience, and loss because of the Appellant's action and accordingly, she prayed for general damages. The Respondent stated that the Appellant destroyed her banana plantation and the evidence of the photos was tendered in the trial Court. The Appellant also

admitted to having cut down the said banana plantation belonging to the Respondent. Hence the award of the $8,000,00/=$ as general damages to the Respondent was lawful. Issue 4 is answered in the negative.

I therefore find no merits in all grounds of appeal, I accordingly dismiss the appeal with costs to the Respondent.

| Dated at Rukungiri this | -day of $\frac{IV}{V}$ | $-2024.$ | |-------------------------|------------------------|----------| | | | | | | | | | | TOM CHEMUTAI JUDGE | |