Bongerwa v Birungi (Civil Appeal 48 of 2021) [2024] UGHC 580 (30 April 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL APPEAL NO. 0048 OF 2021 ARISING FROM CIVIL SUIT NO. 0023 OF 2017**

**BONGERWA FELIX ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**GRACE BIRUNGI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: Hon. Justice Isah Serunkuma.**

#### **JUDGEMENT**

This is an appeal against the judgement of Her Worship Biwaga Selsa delivered on the 21st day of December 2021.

The background of this case is that the appellant instituted *Civil Suit No. 0023 of 2017* 20 against the respondent for trespass to land, a declaration that the plaintiff is the owner of land located at Kiyanga II, Kyakaterwa, Nyangahya Masindi district measuring approximately one (01) acre (hereinafter referred to as the "suit property"), vacant possession, eviction order, mesne profits, general and exemplary damages, costs and interests thereon.

According to the appellant, on the 13th day of July 1999, he bought 1 acre of land from the respondent, vacant possession was given to him immediately, and he used the said land peacefully until 2016. That on the 12th day of October 2016, the respondent entered upon the appellant's land by planting boundary marks and purporting to be the lawful owner thereof. Despite the appellant's demands, the defendant refused to vacate the suit land.

30 In response to the appellant's claims, the respondent denied the appellant's claims, stating that the land in dispute forms part of the land belonging to the respondent's mother, a one Annet Namubiru (hereinafter referred to as the respondent's mother). The respondent also stated that the said Annet Namubiru legally acquired her land, including the part that is in dispute, in 1984 from one Solomon Samson (now deceased). In 1999,

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the respondent was instructed by her mother to sell approximately one acre of the said land to the appellant, which was done.

Furthermore, the respondent's mother also sold another part of the land to many people who are utilizing the same without any complaint or interference. It is the appellant who started encroaching beyond the one acre that was sold to him and, despite being informed of the trespass on the respondent's mother's land, only left the part where the respondent had planted sugarcane, thus being beyond the one acre. The respondent had also stated that she and her mother are still fully utilizing their land which was different from the one acre sold to the appellant.

10 At the trial in the lower court, the appellant adduced evidence through three witnesses: PW1—Bongerwa Felix, PW2—Florence Byabagambi, and PW3—Mwanje Emmanuel. At the same time, the respondent was the sole witness on her side.

In her judgment, the learned trial magistrate relied on two issues to finally determine the suit, namely.

- *1. Whether the Plaintiff/Appellant acquired more than one acre of land from the Defendant/Respondent.* - *2. Whether the Defendant/Respondent trespassed on the plaintiff's/appellant's land*.

In her decision, she held that.

20 *"My findings, therefore, are that the land conveyed by the agreement of sale dated 13th July 1999 to the plaintiff was land next to Ganyana's land and not the slopes of the hill as alleged by the plaintiff/appellant……. My final finding, therefore, is that when the plaintiff purchased land from the defendant, he purchased land approximately 1 acre near the land of Ganyana, not more than that."*

It is on that premise that the appellant herein brought this appeal on four grounds, namely.

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- *1. The learned trial magistrate erred in law and fact when she failed to evaluate the evidence on record properly, thereby arriving at a wrong decision in Civil Suit No. 0023 of 2017 that the appellant by the purchase agreement dated 13th July 1999 (PE2) acquired only one acre from the respondent excluding the suit land.* - *2. The learned trial magistrate erred in law and fact when she failed to consider the evidence of a purchase agreement dated 9th February 1996 (PE1) by which the appellant acquired part of the suit land, thereby arriving at a wrong decision in Civil Suit No. 0023 of 2017 that the appellant did not own the suit land.* - *3. The learned trial magistrate erred in law and fact when she ignored or disregarded* 10 *the appellant's evidence to his prejudice and thereby arrived at a wrong decision that the suit land belongs to the respondent.* - *4. The learned trial magistrate erred in law and fact when she failed to address herself to the correct procedure to be followed at the locus in quo and wrongly decided that the suit land did not belong to the appellant.*

In the result, the appellant seeks that.

- a) The appeal be allowed. - b) The judgment or orders of the Chief Magistrate's Court of Masindi at Masindi, delivered on 21 September 2021 in Civil Suit No. 0023 of 2017, be set aside and substituted with an order decreeing the suit land to the appellant.

# 20 c) An order awarding the costs of this appeal and in the lower court to the appellant.

# *Representation and hearing.*

Counsel Kasangaki Simon of M/s Kasangaki & Co. Advocates represented the appellant, whereas Counsel Lubega Willy of M/s Lubega, Babu & Co. Advocates represented the respondent. Both parties filed their written submissions, which have been considered herein.

*Appellant's submissions.*

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In his submissions, Counsel first reiterated the duty of the first appellate court, which is to rehear the case on appeal by reconsidering all the evidence before the trial court and coming up with its own decision, as enunciated in *Father Nanensio Begumisa and 3 Ors v. Eric Tiberaga, SCCA No. 017 of 2004.* Counsel prayed that this court be pleased to apply the same duty in determining the present appeal.

Counsel argued Grounds One & Four separately and Grounds Two& Three jointly, as noted hereunder.

## *Ground One.*

Counsel submitted that the trial magistrate erred in law and fact when she failed to 10 evaluate the evidence on record, thereby arriving at a wrong decision in Civil Suit No. 0023 of 2017 that the appellant by the purchase agreement dated 13th July 1999 *(PE2)* acquired only one acre from the respondent excluding the suit land. Counsel submitted that from the evidence adduced by PW1 Bongerwa Felix (Appellant) and PW3 Mwanje Emmanuel, the appellant bought an estimated land measuring approximately 1 acre from the respondent. Counsel added that the acre was not measured but only identified by the boundaries that surrounded it and that it is possible that the estimation made by the parties of the suit land at the purchase could be more than the 1 acre of the land the appellant bought.

### *Grounds Two & Three.*

20 Counsel relied on the evidence as adduced by the appellant *(PW1),* which evidence is herein considered and submitted that a critical analysis of the evidence adduced at the lower court clearly shows that the plaintiff owns the land on the slopes of the hill. Counsel added that, however, in her judgment on Page 7, the trial magistrate disregarded the same when she held that, *"therefore, I don't believe that the land bought by the plaintiff included the slopes of the hill (now occupied by Mark)."* Counsel submitted that the trial magistrate only restricted the plaintiff's land to that next to Bihemaiso's land. Counsel argued that this was a total error made by the trial magistrate and prayed that this court be pleased to analyze the evidence on record and come to a different ruling.

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### *Ground Four.*

Counsel submitted that the trial magistrate failed to address herself as to the correct procedure to be followed at locus in quo, thereby occasioning a miscarriage of justice. Counsel relied on the case of *Mukasa Vs Uganda [1964] EA. 698,* wherein *Sir Udo Udoma* correctly stated the law regarding a view of the locus in quo.

*"A view of a locus in quo ought to be, I think, to check on the evidence already given and, where necessary and possible, to have such evidence ocularly demonstrated in the same way a court examines a plan or map or some fixed object already exhibited or spoken of in the proceedings. It is essential that, in a* 10 *view, a judge or magistrate should exercise great care not to constitute himself as a witness in the case. Neither a view nor personal observations should be a substitute for evidence."*

In addition, counsel relied on *Practice Direction No.1 of 2007,* which states that during the hearing of land disputes, the court can take an interest in visiting locus, while there, the court is to -

- *(a) Ensure that all the parties, their witnesses, and advocates, if any, are present.* - *(b) Allow the parties and their witnesses to adduce evidence at the locus in quo.* - *(c) Allow cross-examination by either party or his/her counsel.* - *(d) Record all the proceedings at the locus in quo.* - 20 *(e) Record any observation, view, opinion, or conclusion of the court, including drawing a sketch map.*

Counsel submitted that though the trial magistrate drew the sketch map, the same was biased and left out very important features at the site. This was a grave error on the part of the court that wrongly influenced the trial court's decision to the appellant's detriment. Counsel added that because the procedure at the locus was not carried out properly, all these observations went unnoticed and are not on record.

Counsel further argued that failure to follow the established procedures at locus endangered the proceedings thereto, as seen in the case of *Badru Kabalega vs. Sepiriano Mugangu, HCCS No. 007 of 1987,* where *Ongom Ag. J*, as he then was provided the procedure to be followed at locus, further stated, *"……. If the trial court fails to follow the procedure at locus and based largely on the trial at the locus in quo, that omission is fatal to the whole trial."* In conclusion, counsel submitted that despite the error in conducting the locus in quo, the material on record was insufficient to dispose of the suit. Counsel added that the evidence on record supports a finding in favour of the appellant, thus praying that this ground succeeds.

### 10 *Respondent's submissions.*

In response to the appellant, counsel submitted on Grounds One & Two jointly and Three & Four separately as hereunder.

### *Ground One & Two.*

Counsel submitted that the trial magistrate never failed to properly evaluate evidence on the record on pages 6, 7 & 8 of her judgment but, instead, gave a thorough and proper analysis of the evidence before her. Counsel added that the appellant, by purchase agreement dated 13th July 1999, acquired land measuring approximately one acre from the respondent, which did not include the suit land. Counsel argued that the trial court properly analyzed and considered the evidence of the purchase as portrayed in the sale agreement and found that the land purchased on the 9th 20 February 1996 was not part of the suit land and the person who is alleged to have sold it to the appellant on the 9th February 1996 clearly showed that he did not have land on the hill for him to have sold it. Counsel referred to this court on the locus visit minutes and the court findings.

Counsel further stated that the remaining part of the land was later sold by the said Annet Namubiru to other people who own the same and have been in full utilization ever since without any complaint from the appellant. Counsel further stated that the appellant's approximately one acre of land remained intact, and the respondent had never trespassed on his land at any one point. Counsel added that moreover, at locus, no evidence of possession, refusal to vacate, and boundary allegedly planted by the respondent was proved by the appellant, which formed the basis of the alleged trespass.

Counsel relied on the case of *Salmond and Heuston on the Law of Torts 19th edition,* where trespass to land means when a person directly enters upon another's land without permission and remains upon the land, places, or projects any object upon the land. Counsel also relied on the case of *Bumbakali Vs. Muhairwe & Ors, Civil Suit No. 0036 of 1999 [2017],* where it was stated that it is the right of the owner in exclusive possession that is protected by an action for trespass. Counsel submitted that the appellant accuses the respondent of entering upon his land on the 12th of October 2016 by planting boundary 10 marks purporting to be the lawful owner and that the respondent neglected to vacate the same. Counsel stated that at a locus, the appellant showed the court a different land in

the occupation of a different person called Mark, who bought it from Annet Namubiru, and the court was clearly guided that the said land did not belong to the appellant.

Counsel further submitted that the appellant had the land sold to him by the respondent in which he planted sugarcane, and as such, no single right of ownership of the appellant was violated. About the document dated 9th February 1996, counsel argued that it was proved not to be authentic by the appellant during cross-examination when he stated, *"I confirm that this document does not confirm that it is an agreement."* Counsel added that it was further established that the purported agreement did not discuss the boundary and 20 the location of the said land.

In conclusion, counsel submitted that the appellant only acquired approximately one acre of land bordering with or near the land of Ganyana, which land was identifiable and did not cross over to the area where the suit land was shown to court at a locus in quo. Counsel added that the trial magistrate did not make an error in law and fact when she held that the appellant, by purchase agreement dated 13th July 1999, acquired only approximately one acre from the respondent, excluding the suit land, and that the trial magistrate did not also error in law and fact when she held that the appellant did not own the suit land as per the purchase agreement dated 9th February 1996.

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### *Ground Three*

Counsel submitted that the trial court did not hold that the suit land belonged to the respondent but rather held that the appellant did not own the suit land since it was already sold to one mark by the respondent's mother, who testified at a locus and the said Mark was in actual physical possession. Counsel stated that whereas the appellant claimed in his submissions that he bought the suit land from Byabagambi on the lower side and the top of the hill totaling up to 5 acres, to the contrary, at a locus, it was discovered that the said land on the hillside was being claimed by Mark who is in full possession and utilization having acquired it from the respondent's mother. Counsel submitted that the trial 10 magistrate carefully considered the evidence as adduced by the appellant, including the contradictions, thus arriving at the conclusions she made in her judgment but that it is the appellant who failed to discharge the burden on him to prove that he acquired more than approximately one acre of land from the respondent as alleged.

## *Ground Four*

Counsel submitted that the purpose of visiting the locus is to clarify the evidence touching the subject matter before the court. Counsel relied on the case of *Kwebiiha Emmanuel & Another Vs. Rwanga Furujensio & 2 Ors, Civil Appeal No. 0021 of 2011,* where it was held that *"in a nutshell, the purpose of visiting locus in quo is to clarify on evidence already given in court. it is for purposes of the parties and witnesses to clarify special features such* 20 *as graves, to confirm boundaries and neighbors to the disputed land, to show whatever developments either party may have put up on the disputed land, and any other matters relevant to the case."*

Counsel submitted that the above position implies that only the features that were brought to the court's attention during the hearing are to be clarified by the court at the locus. Counsel added that other features that were discovered at the locus don't necessarily have to be included in the court's records and considered or be included in the sketch map during the locus visit. Counsel further stated that whereas the appellant alleges that important features were left out at locus, he does not specify what features were left out; thus, the trial court, while at locus, drew a sketch map with all the features which were sufficient to describe the suit land and any other aspect the court needed to rely on to come up with a well-reasoned judgement.

Counsel relied on the case of *Kwebiiha Emmanuel* (**supra**), where it was further held that it is also important to note that evidence at a locus cannot be considered in isolation from the existing evidence recorded in court. Counsel submitted that at locus, the appellant showed the court a different land on the hill, which was in occupation of another person called Mark, and yet, during cross-examination, had informed the court that at the time of purchasing the one acre, the respondent had shown him the boundary which was within

10 his knowledge. Counsel further submitted that the appellant added that Asaba Francis was neighboring the said land in the west, Bihemaiso Charles was neighboring the said land in the east, and that in the north, there was a hill which was contradicted at a locus by the said appellant.

In conclusion, counsel submitted that the trial court at locus made clear observations, such as the hill and the neighbors who had been described at trial and were included in the sketch map, thus coming up with its findings. Counsel prayed that this court finds that the fourth ground has not been proved and the same should fail. Counsel also prayed that the appellant's appeal fails and orders that.

- a) The appeal be disallowed. - 20 b) The judgment and orders of Her Worship Biwaga Selsa, delivered on the 21st of December 2021 vide Civil Suit No. 0023 of 2017, be maintained. - c) An order awarding the costs of this appeal and in the lower court to the respondent.

In rejoinder, counsel for the appellant submitted that the respondent tends to insinuate that through her mother, she sold one acre. She was left with 8 acres as per the locus visit. Yet, it was clear from the cross-examination of the appellant, collaborated by the evidence of PW3, that upon the sale of the land to the appellant, the respondent and her mother were left with no land around. Counsel emphasized the fact that the appellant bought all the land that belonged to the respondent and her mother, Annet Namubiru, which, by way

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of approximation, was beyond one acre but clearly described by the boundaries, which have not changed up to date. Counsel added that the law is clear that where boundary marks describe an agreement of purchase, the boundary mark descriptions take precedence.

Counsel stated that it is still their submission that the trial magistrate erred in law and fact when she failed to evaluate the evidence on record, thereby arriving at a wrong decision in Civil Suit No. 0023 of 2017 that the appellant, by the purchase agreement dated 13th July 1999 acquired only one acre from the respondent excluding the suit land. Counsel argued that this is not the position even from the mere plain reading of the agreement of sale 10 which did not show the seller remained with any land.

Regarding the sketch map drawn at the locus, counsel argued that it was inaccurate, having left out very important features at the site, such as all the boundaries not being shown and the various pieces of land the appellant purchased at different times. This was a grave error on the part of the court that wrongly influenced the decision of the trial court, much to the detriment of the appellant.

In conclusion, counsel prayed that this honorable court finds that the learned trial magistrate erred in law and fact in not addressing herself as to the proper procedure of locus in quo, thereby reaching an erroneous decision that the disputed land belonged to the respondents, occasioning a miscarriage of justice to the appellant.

## 20 *Court Analysis.*

It has been long held in several authorities as to what constitutes the duty of the first appellate court. In *Father Nanensio Begumisa and 3 Ors v. Eric Tiberaga, SCCA No. 0017 of 2004*, it was observed that the legal obligation of the first appellate court is to reappraise evidence and is founded in common law rather than rules of procedure. On a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact and law. Although in a case of conflicting evidence, the appeal court must make allowance for the fact that it has never seen or heard the witnesses, it must weigh

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the conflicting evidence and draw its inferences and conclusions. *(*See also *FK Zaabwe v. Orient Bank and Ors, SCCA No. 004 of 2006).*

I have read the submissions, pleadings, lower court record, as well as the authorities, relied on by both parties; I must note that Grounds One, Two & Three of this appeal all culminate into one issue faulting the learned trial magistrate for not properly evaluating the evidence as was provided at the lower court. It is thus safe to say that the above three grounds shall be jointly determined, and the 4th ground of appeal shall be determined solely as hereunder.

The first three grounds of this appeal are that.

- 10 *1. The learned trial magistrate erred in law and fact when she failed to evaluate the evidence on record properly, thereby arriving at a wrong decision in Civil Suit No. 0023 of 2017, when she held that the appellant, by the purchase agreement dated 13th July 2017 (PE2), acquired only one acre from the respondent, excluding the suit land.* - *2. The learned trial magistrate erred in law and fact when she failed to consider the evidence of a purchase agreement dated 9th February 1996 (PE1) by which the appellant acquired part of the suit land, thereby arriving at a wrong decision in Civil Suit No. 0023 of 2017 that the appellant did not own the suit land.* - *3. The learned trial magistrate erred in law and fact when she ignored or disregarded* 20 *the appellant's evidence to his prejudice and thereby arrived at a wrong decision that the suit land belonged to the respondent.*

The appellant faults the learned trial magistrate firstly, for failing to evaluate the evidence properly and thus finding that the appellant only purchased land measuring one acre from the respondent as per agreement dated 13th July 1999 marked PE2. Secondly, the appellant also faults the learned trial magistrate for failing to consider the purchase agreement dated 9th February 1996 and further for not considering the evidence of the appellant that was adduced at trial to his prejudice.

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According to the appellant (PW1)'s evidence in the lower court record of proceedings, it indicates that the appellant claimed to have first bought land from one Byabagambi Florence measuring approximately 5 acres as per the agreement dated 5th August 1995 and agreement dated 9th February 1996 marked *Annexture PEX 3(a) & (b) and PEX 2(a)& (b)* respectively. The appellant's claim was corroborated by the evidence of *PW2 Byabagambi Florence*, who, in her evidence at the lower court, testified that she sold land measuring 5 acres to the appellant. PW2 further testified on Page 17, Paragraph 4, that the agreement spells out that the land sold was not in one piece. During cross-examination, Byabagambi Florence PW2 further testified on Page 17 of the court record of proceedings 2 nd 10 last paragraph that, *"I initially sold 2 acres, I then added the plaintiff/appellant 1 acre and then 2 acres later to make 5 acres."*

The appellant further testified in chief on Page 9 of the lower court record of proceedings, paragraphs 5-6, that *"When I shifted from my parent's land, the defendant/respondent also sold me land in 1999 …... the land I bought from the defendant/respondent, we just estimated it to be an acre…. Thereafter, the defendant/respondent remained with no land there."* The evidence, as adduced by the appellant at the lower court, clearly indicates that there is no dispute as to the size of the land since he himself confirmed that, indeed, the land bought from the respondent was approximately one acre. Given the literal interpretation of the agreement between the appellant and the respondent, it clearly 20 states that.

*"RE: AGREEMENT FOR SALEI, Grace Birungi of Kikobwa, have sold my land, amounting to approximately one acre, located in Kyakaterwa near Ganyana. I have sold to Mr. Bongerwa Felix at (40,000)/= (forty thousand shillings). All paid no debt."*

The agreement is clear, and there is no ambiguity at all.

In her judgement, the learned trial magistrate applied the authority of *Oyet Celestino Vs. Okello Lunjino MA 53/17,* where the court had to interpret the lower court's order on the size of the land awarded to the respondent and held that.

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*"Applying the authority cited above, one acre is the measurement. The location was described as land near Ganyana, which is the monument or feature describing the land purchased in 1999. According to the defendant/respondent, Ganyana's land was sold and is now occupied by Bihemaiso Charles."*

It is not probable for the learned trial magistrate to have made the above decision without due regard to the agreed terms between the appellant and the respondent; hence, there was no error on her part, both in fact and in law.

The appellant, earlier on in his evidence adduced in the lower court, informed the court that at the time of purchasing land from Byabagambi Florence, he measured the land using

10 a yardstick, and what had been thought to be 4 acres was found to be 2 acres of land thus giving him more land. The actions of the appellant then indicated a vigilant person. This court is not certain as to why the appellant did not apply the same vigilance in purchasing the one acre from the respondent in 1999, years after 1996. One cannot expect the court to act on assumptions when the solution was available years ago to prove a mistake.

In the case of *Ojara Samuel & 6 Ors vs. Bwomi Sezi, HC Civil Appeal No. 0002 of 2016,* it was noted that *"It is an established rule that where land is described by its dimensions and at the same time by known and visible monuments, the latter prevail."*

This is the same principle that the learned trial magistrate followed before she came to her conclusion, and she corroborated it with the fact that the appellant was shown the 20 boundaries of the suit land at the time of purchase. The learned trial magistrate also found that the land sold to the appellant was bordered by the land of Ganyana (now Bihemaiso's land), and it did not proceed to the north, where there was a hill.

Secondly, during cross-examination, the appellant testified on page 10, paragraph 1, line 3, that *"I bought approximately 1 acre from the defendant. I took possession of the land after buying it."* Further, in paragraph 3, line 1, the appellant testified that: *"It is part of my pleading that the defendant/respondent wants to retake the land which she sold to me."* In addition, on page 11, paragraphs 11-12, the appellant PW1 testified that *"The 5 acres was once the land of Byabagambi. It does not enter the valley. The land which ends at the* *valley is for the mother of the defendant/respondent. The land Mrs. Byabagambi sold to me was up and down. The defendant sold me the land at the top where her mother also had land."* The above evidence clearly connotes the area where the suit land was located.

Even though the suit land, as claimed by the appellant, is located at the top of the hill and the additional land acquired by Byabagambi Florence is located at the hill slopes. This, however, was not the case during the locus visit, where both the respondent and Mrs. Byabagambi Florence PW2 were in attendance. The lower court indicated that Mrs. Byabagambi Florence denied selling any land to the appellant, which was situated at the slope of the hill. Further, the respondent at the locus showed the lower court the boundary 10 of the land sold to the appellant being 2 Midotani trees aligned to each other at the bottom of the hill. The respondent further testified that the one acre she sold to the appellant was the one that had the appellant's sugarcane and beans.

> According to counsel for the appellant, he faulted the learned trial magistrate for holding that the land owned by the appellant did not include the hill because both the respondent and Mrs. Byabagambi Florence PW2 sold land to him located at the slopes. In response to this allegation by counsel for the appellant, it is safe to say that he is mistaken as to what was considered by the learned trial magistrate.

It's prudent to note that the learned trial magistrate considered all the evidence before including that obtained during locus. During the locus visit then, both Mrs. Byabagambi 20 Florence (PW2) and the respondent, in showing the court where the land sold to the appellant was situated, denied ever selling to him(appellant) land located at the slopes of the hill. Considering the evidence as was adduced at the lower court, I am inclined to hold that the learned trial magistrate clearly considered all the evidence adduced at the trial and the locus before she decided on the same. As a result, Grounds One, Two, & Three are answered in the negative.

*4. The learned trial magistrate erred in law and fact when she failed to address herself to the correct procedure to be followed at the locus in quo and wrongly decided that the suit land did not belong to the appellant.*

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Guideline 3 of Practice Direction No. 1 of 2007 provides for the procedure for judicial officers to follow when conducting locus visits as hereunder.

*"During the hearing of land disputes, the court should take an interest in visiting the locus in quo and while there.*

- *(a) Ensure that all the parties, their witnesses, and advocates, if any, are present.* - *(b) Allow the parties and their witnesses to adduce evidence at the locus in quo.* - *(c) Allow cross-examination by either party or his/her counsel.* - *(d) Record all the proceedings at the locus in quo.* - *(e) Record any observation, view opinion, or conclusion of the court, including drawing*

10 *a sketch map."*

This means that despite being out of the court building, the locus visited still stands as a court ifthe above factors are considered. Counsel for the appellant specifically faulted the learned trial magistrate for drawing a sketch map of the suit land, which was biased, having left out the important features at the site. The important features claimed to have been left out include the boundaries and the various pieces of land that the appellant bought. On the other hand, counsel for the respondents submitted that only the features that were brought to the court's attention during the hearing are to be clarified by the court at the locus; hence, other features that were discovered at the locus don't necessarily have to be included in the court's record.

20 In the case of *Ddamulira Aloysius Vs. Nakijoba Josephine, HC Civil Appeal No. 0059 of 2019,* it was noted that *"Locus in quo is meant to help both parties clearly indicate to court what their claim is and in matters where the claim is based on boundaries and location, parties are given the opportunity to show the court the boundaries and location as claimed."*

It is my considered view that the proceedings undertaken during the locus visit are in tandem with the appellant's claim in a plaint filed at the lower court. The claim is trespass to land by the respondent located at Kiyanga II, Kyakaterwa, Nyangahya, Masindi district, measuring approximately 1 acre. The appellant as PW1, in his testimony on page 10,

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paragraphs 2 & 3, stated verbatim, *"The defendant is claiming part of the land she sold to me because she reported me to legal aid………it is part of my pleading that the defendant wants to retake the land which she sold to me."*

The above statement, if considered with the cause of action in the pleadings and what constitutes the suit land, nowhere does it indicate that the 5 acres of the land as purchased from Mrs. Byabagambi Florence is part of the suit land claimed. Secondly, while at the locus, the land that the appellant showed to the court was situated at the slopes of the hill, which both Mrs. Byabagambi Florence PW2 and the respondent denied having sold to him. If this court is to proceed by the factors laid out in Practice Direction

10 No. 01 of 2007, Guideline 3 Paragraph (e) requires the learned trial magistrate to record any observation, view opinion, or conclusion of the court, including drawing a sketch map. According to the proceedings of the lower court, especially the evidence adduced, what was pertinent in the matter was the suit land, which was claimed to have been sold by the respondent to the appellant, measuring approximately one acre and not the 5 acres which had been bought way earlier by the appellant from a one Mrs. Byabagambi Florence.

As a result, I find the sketch map drawn by the learned trial magistrate contained all the pertinent features necessary for disposing of the case. In other words, the right procedure was followed. Therefore, this Ground Four fails. The judgement of the learned trial magistrate delivered on the 21st day of October 2021 is hereby upheld. In conclusion, this 20 appeal fails, and it is dismissed with costs to the respondent, here and below.

## **I so rule and order.**

**Dated and delivered on this 30th Day of April 2024.**

**……………………… Isah Serunkuma JUDGE**

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