Businge v Baguma and 6 Others (Civil Appeal 35 of 2020) [2024] UGHC 581 (30 April 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI**

#### **CIVIL APPEAL N0. 0035 OF 2020**

**(Arising from Civil Suit No. 0001 of 2009)**

**BUSINGE WILSON………………………………………………………………………………………… APPELLANT**

**VERSUS**

- **1. JOSEPH BAGUMA** - **2. MUGISA DALSON** - **3. KENNEDY BAIJUKYA** - **4. EDINANSI TIBAHWERWA** - **5. ASIIMWE MATAYO** - **6. ATUGONZA PROSCOVIA** - **7. ALIGUMA EVELYNE ………………………………………………………………………….. RESPONDENTS**

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

#### **JUDGEMENT**

In the year 2009, the Appellant filed Civil Suit No. 0001 of 2009 against Joseph Baguma(1st Respondent), Mugisha Dalson (2nd Respondent), Kennedy Baijukya (3rd Respondent), Edinansi Tibahwerwa (4th Respondent), Asiimwe Matayo (5th Respondent), Atugonza Proscovia (6th Respondent), Aliguma Evelyn (7th Respondent) for orders that he is the rightful owner of the disputed land in there by being trespassed by the respondents claiming it was for their late mother Tereza Kabakidi.

30 At the Trial, The Appellant produced three witnesses to prove his case, and the Respondents produced one witness.

The issues for determination in the trial Chief Magistrates Court were.

- *1. Who is the rightful owner of the disputed land?* - *2. Was there trespass on the disputed land; if so, by whom?* - *3. What remedies are available to the parties?*

The trial Chief Magistrate determined the above issues in favour of the defendants/Respondents and, in her judgment, found the appellant's evidence in

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relation to the respondents herein was not credible. Therefore, the suit against the Appellant was dismissed with costs in favour of the Respondents as against the Appellant.

Being dissatisfied with the decision, the Appellant filed an Appeal on the grounds that.

- 1. That the learned trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on record, hence arriving at a wrong decision causing the Appellant a failure of Justice. - 2. That the learned Trial Chief Magistrate erred in law and fact when she failed to consider the Appellant's evidence at the locus visit, hence arriving at a wrong 10 decision, causing the Appellant a failure of Justice. - 3. That the Learned Trial Chief Magistrate erred in law and fact when she awarded the 2nd Respondent general damages of Ushs.5,000,000/= against the Appellant without any supportive evidence, causing the Appellant a failure of Justice. - 4. That the learned Trial Chief Magistrate erred in law and fact when she awarded the 2 nd Respondent excessive interest of 25% on general damages, causing the Appellant a failure of justice.

The Appellant, in his written submissions, discussed each of the grounds separately.

# *Representation*

The Appellant represented himself, and the Respondents were represented by Counsel 20 Willy Lubega of M/S Lubega, Babu, and Co. Advocates. Both parties were directed to file written submissions, which the court adopted to determine this case.

## *Appellants Submissions*

The Appellant discussed the ground as follows.

# *Ground One.*

The Appellant submitted that the trial Chief Magistrate failed to properly evaluate the evidence on record, which led to arriving at a wrong decision. On page 4 of the judgment of the lower court, the magistrate never evaluated the evidence. He further submitted

that the lower court failed to distinguish the disputed land from that of the late Tereza Kabakidi, which was about 4 acres.

The Appellant further submitted that the defendant did not have proof and witness that the land was given to Tereza Kabakidi by one of William Majune's aunts, or they did not produce any witness to witness any of their argument on the land.

# *Ground Two.*

The Appellant submitted that the trial Chief Magistrate erred in law and fact when she failed to consider the Appellant's evidence at the locus visit, hence arriving at a wrong decision, causing the Appellant a failure of justice that is to say that the learned 10 Magistrate failed to differentiate the 4 acres of Tereza Kabakidi in which she was buried and that of the plaintiff now the Appellant.

# *Ground Three.*

That the learned Trial Chief Magistrate erred in law and fact when she awarded the 2nd respondent general damages of 5,000,000/= against the Appellant without any supportive evidence, causing the Appellant a failure of justice. On page 5 of the lower judgement,the magistrate awarded 5,000,000/=of General damages to the 2nd defendant considering allegations without clear evidence that between 2008 and 2010, the plaintiff or, on his orders, destroyed her eucalyptus, mangoes, and avocado seedling on the land and two grass thatched huts.

20 He further submitted that this gave ground for appeal in this honorable court since there was no supportive evidence to award general damages to the second defendant, now the second respondent.

## *Ground Four.*

The learned Trial Chief Magistrate erred in law and fact when she awarded the 2nd Respondent excessive interest of 25% on general damages, causing the appellant to fail justice. That is, the lower court magistrate awarded excessive interest of 25% on general damages because the Appellant destroyed their properties. He further submitted that the interest on damages should be given to the appellant since he acquired body

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weakness from the defendant due to that same land (Criminal case No. MSD-00-CO-0280/2008).

# *Respondents Submissions.*

The respondents raised a preliminary objection that the Appellant's submissions introduced Ground Four, which was never stated in the memorandum. What is stated in the memorandum of appeal as Ground Four is like Ground Three, making it a repetition of which they object to introducing a new ground of appeal as Ground Four in the appellant's submissions. They submitted that the appellant cannot, therefore, use his submissions to introduce ground 4 of appeal, which is not in his memorandum.

10 The respondents raised a second preliminary objection that Ground One of the appeal is so general and vague, that is to say, that the appellant does not state which type of evidence the trial magistrate failed to properly evaluate, hence offending Order 43 Rules 1 and 2 of the Civil Procedure Rules SI 71-1 as amended.

The respondents submitted Grounds One & Two of appeal jointly and Three, leaving out Ground Four as follows.

## *Ground One & Two.*

They submitted on both grounds that the Appellant alleges that the trial chief magistrate failed to properly evaluate the evidence on record, specifically the locus evidence. Still, however, during the locus visit, the court confirmed that the respondents' evidence was 20 indeed visible on the ground. The respondents' houses were found to be on the suit land, which was held to be the property of the late Tereza Kabadidi, and all this evidence was not challenged.

They submitted that although the appellant argued that he inherited the suit land from his late father, the late Eston Rukamya, no evidence was presented to prove that the late Eston Rukamya ever had any interest in it. They further submitted that throughout the defence case, they contended that the appellant is as well entitled to a share of the suit land as a child of the late Tereza Kabakidi and that during the locus visit court found that all the family members of the appellant and the respondents have homesteads within the big homestead of the late Tereza Kabakidi.


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They submitted that there are very grave contradictions, which suggest that the appellants' evidence is full of falsehoods.

On these grounds, they further submitted that since the suit land was in rightful possession of the respondents and the appellant as beneficiaries of the estate of the late Tereza Kabakidi, the appeal be dismissed henceforth and that no evidence was proving that the appellant's father was ever in possession of the suit land.

# *Ground Three.*

The respondent submitted that the second respondent testified that he suffered a loss of 5,000,000 because of the appellant's illegal activities. Evidence was adduced that the 10 appellant destroyed her eucalyptus trees, mangoes, and avocado seedlings, which were planted on the suit land. The appellant also destroyed 2 grass thatched huts valued at 5,000,000/=.

## **Analysis of Court**

It is the duty of the first Appellate court to review and re-evaluate the evidence before the trial court and reach its own conclusions, considering that the Appellant court did not have the opportunity to hear and see the witnesses testify. In **Peters v Sunday Post Limited [1958] 1 EA,** on page 429, the Court of Appeal for East Africa held that.

*"An appellant court has indeed jurisdiction to review the evidence to determine whether the conclusion originally reached upon the evidence should stand. But* 20 *this is a jurisdiction which should be exercised with caution; it is not enough that the appellant court might itself have come to a different conclusion".*

The Supreme Court of Uganda reaffirmed this principle in **Kifamunte Henry v Uganda S. C. C. A. No.10 of 1997.** For purposes of consistency, I will handle the grounds of appeal in the order they are presented when they state that the duty of the first appellant is.

> "*To review the evidence of the case and reconsider the materials before the trial judge. The appellant court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and*

*considering it".*

I have extensively reviewed the entire record of the lower court, the Memorandum of Appeal, and the Appellant and Respondent's written Submissions, and the following are my findings.

# *Preliminary objections of the appeal*

Preliminary objection one is to the effect that the appellant's submissions introduce ground four, which was never in the memorandum, and that in summary from what is stated in the memorandum of appeal, the appellant made a repetition by raising grounds 3 and 4, which have the same content. It was the respondent's submission that the appellant cannot use his submissions to introduce ground four of appeal, which is not in 10 his memorandum. This is an illegality as was held in the case *of Makula International Ltd V His Eminence Emmanuel Cardinal Nsubuga (Civil Appeal No. 004 of 1981) [1982] UGSC 2.*

On this note, I agree with the respondents and will not consider ground 4 of the appeal as introduced by the appellant in his Submissions.

Preliminary Objection Two concerns the generality and vagueness of Ground One of the appeal and the appellant's failure to state which type of evidence the trial magistrates failed to evaluate properly, hence offending *Order 43 Rules 1 and 2 of CPR.* The impugned ground of appeal has been worded as follows: *"The learned Trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on*

20 *record, hence arriving at a wrong decision causing the Appellant a failure of justice."*

This ground is too general and does not specify in what way and in which specific areas the Trial Chief Magistrate failed to evaluate the evidence. It does not set out the wrong decision arrived at by the learned Chief Magistrate.

**Rule 82(1)** of the Appeal Rules provides for the contents of the Memorandum of Appeal.

*"A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order it is proposed to as the court to make"*.

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In my view, Rule 82(1), which is mandatory, is intended to ensure that the court adjudicates specific issues complained of in the appeal and prevent abuse of the court process.

Ground one of the appeal, as already set out above, faults the Trial Chief Magistrate for failing to evaluate the evidence on record without specifying the subject matter of the case to which this evidence is related. The ground does not also set out how the Trial Chief Magistrate failed to evaluate such evidence. No instances of evidence which the Trial Chief Magistrate is alleged to have wrongly evaluated are stated at all in Ground One.

10 Therefore, on the principle articulated in the decision *Ranchobhai Shivabhai Patel Ltd and Another V Henry Wambuga and Another, Civil Appeal No. 0006 of 2017,* the impugned ground contravenes the rules of this court and is wrong in law. Therefore, regarding Preliminary Objection Two, the court agrees with the respondent's submissions, and so Ground One of the Appeal is Struck out.

Grounds One & Four are struck out, leaving this court with Grounds Two & Three to resolve.

## *Ground Two.*

The Appellant submitted that the learned Trial Chief Magistrate erred in law and fact when she failed to consider the Appellant's evidence at the locus visit, hence arriving at 20 a wrong decision and causing the appellant a failure of justice. He submitted that the learned trial chief magistrate failed to differentiate the 4 acres of Tereza Kabakidi in which she was buried and that of the appellant.

The appellant further submitted that the disputed land is neighbouring the following people: Tibamwenda, Eria, Kateeba, Yosani Bakawire in the North, Majune William (East), Erinayo Kasangaki (West), and Nyakabale swamp. So, he submits that the lower court failed in the northern part of the neighbouring people where Yosani Bakawire stays.

The respondents submitted that during the locus visits, the court confirmed that the respondents' evidence was indeed visible on the ground, the homestead of the late Tereza Kabadidi was found to be on the suit land, the respondents' houses were found to

be on the suit land, and the suit land was held to be the property of the late Tereza Kabakindi. All this evidence was not challenged.

The general rule in land practice today is that courts, before finalizing the trial of land matters, should visit the locus. The purpose of this visit was well articulated in the case of *Deo Matsanga Vs. Uganda 1998 KALR 57***,** that.

*"The purpose of visiting the locus in quo is to cross check on the evidence adduced during the trial. The proceedings at the locus should form part of the court record. The trial Magistrate should record everything that a witness states in the locus in quo and recall him to give evidence of what occurred on oath and the* 10 *opposite party is afforded an opportunity to cross-examine him".*

Visiting the *locus in quo* is essentially for the purpose of enabling the trial court to understand the evidence better. It is intended to harness the physical aspects of the evidence in conveying and enhancing the meaning of the oral testimony. It, therefore, must be limited to inspecting the specific aspects of the case as canvassed during the oral testimony in court and to test the evidence on those points only. The practice of visiting the *locus in quo* is to check on the evidence by the witnesses and not to fill gaps in their evidence for them *(See Okee & 2 Ors v Otim (Civil Appeal No. 0041 of 2015) [2019] UGHCLD 2 (21 February 2019).*

I have read both submissions, and I do not agree with the Appellant's submissions on 20 this ground, considering that while at the locus, they did not challenge the evidence brought up by the respondents.

## *Ground Three.*

The Appellant submitted that the learned Trial Chief Magistrate erred in law and fact when she awarded the 2nd Respondent general damages of 5,000,000/= against the Appellant without any supportive evidence, causing the Appellant a failure of justice. He submitted that this gave a ground of appeal since there was no supportive evidence to award general damages to the second respondent.

The respondents submitted that the 2nd respondent testified that, indeed, he suffered a loss because of the appellant's illegal activities to the tune of 5,000,000. He adduced

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evidence that the appellant destroyed her eucalyptus trees, mangoes, and avocado seedlings, which were planted on the suit land, and that the appellant also destroyed 2 grass thatched huts valued at 5,000,000/= and that the appellant did not challenge this evidence during cross-examination of the 2nd respondent.

The respondents based on the case of *Muruki Venkata Bhaskar Reddy and 2 Ors V Bank of India (Uganda)Ltd* which held that the law on general damages is that the damages are awarded at the discretion of the court and that the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred.

10 The award of general damages is at the court's discretion regarding what the law presumes as natural and probable consequences of the defendant's act or omission.

# *(See: James Fredrick Nsubuga V Attorney General, H. C. Civil Suit No. 13 of 1993 and Erukakama Kuwe V Isaac Patrick Matovu and Another, H. C. Civil Suit No. 0177 of 2003).*

Furthermore, 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. *(See: NIC Vs. Mugenyi [1987]*

# 20 *HCB 28 and Mboyo V Shah [1968] EA 93.*

The evidence on record clearly shows that the appellant was aware of the respondent's interests in the suit land. The unchallenged evidence of the 2nd respondent was that the appellant destroyed her eucalyptus trees, mangoes, and avocado seedlings, which were planted on the suit land, and he also destroyed 2 grass thatched huts valued at 5,000,000/= (Five Million Uganda Shillings)

I find that the Trial Chief Magistrate rightfully and judiciously exercised her discretion when she awarded general damages of 5 million, and I see no reason to interfere with that decision.

This ground accordingly fails.

Based on my conclusion on Grounds Two and Three above, this appeal would fail on all grounds, given that Grounds One and Four were struck off by this court. Thus, it is found to lack merit and accordingly dismissed with the following orders.

- 1. This appeal is dismissed. - 2. The costs of this appeal and in the lower court are awarded to the respondent in any event.

**I so order.**

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

10 **……………………..**

**Isah Serunkuma**

**JUDGE**