Byamukama v Tibakunirwa (Civil Appeal 6 of 2023) [2024] UGHC 1170 (25 October 2024)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVII. APPEAL NO. 0006 OF 2023 (Arising out of Kibaale Civil Suit No. 0013 of 2019)

#### **APPELLANT** BYAMUKAMA TADEO::::::::::::

#### **VERSUS**

## TIBAKUNIRWA JANE::::::::::::::::::::::::::::::::::::

[Appeal from the Judgment and Orders of H/W Niyokwizera Emmanuel, Magistrate Grade I, Kibaale Chief Magistrate's Court at Kibaale in Civil Suit No. 13 of 2019 delivered on 18/1/2023]

# BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA **IUDGMENT**

#### **Background**

- This is file is one of the files that survived the fire that gutted the $[1]$ High Court Registry on the morning of 21<sup>st</sup> of October, 2023. - The Appellant sued the Respondent for a declaration that he is the $[2]$ rightful owner of the suitland situate in Mugarama L. C. I, Mugarama Sub-County, Kibaale District, a permanent injunction, an order for vacant possession, general damages and costs of the suit. - It was the Appellant's case that on the $5^{\text{th}}$ /1/2023 he purchased $[3]$ the suit land measuring approx. 1 acre from a one Asiimwe Paul and that later, after about 4 months, he allowed the Respondent to use the suit land for cultivation of seasonal crops to feed her family since she had no land to cultivate, the family having stopped her from using the land where she had been allowed to cultivate before. - That however, later the Respondent without the consent of the $[4]$ Appellant started using the land by cultivating coffee, eucalyptus and other trees and in May 2019, the Respondent brought her 2 old

sons to construct some houses contrary to the purpose and reason she had been allowed to utilise the suit land.

- The Appellant protested the Respondent's acts by reporting the $[5]$ matter to the local authorities thus the present suit now on appeal. - In her defence, the Respondent denied the Appellant's claims $[6]$ claiming that she is the rightful owner of the suit land having acquired it by way of a joint purchase with Asiimwe Paul and a one Turinawe Stephen from a one Omuhereza Namboga in 2012. - That on conclusion of the purchase of the suit land, the land was $[7]$ subdivided and each individual purchaser secured his/her own share in the property whereupon she took immediate possession and utilisation of the suit land for farming without any objection or protest from the Appellant or anybody. - The Respondent contended that the suit is res judicata on the [8] grounds that it has earlier on been adjudicated upon by the Local Council authorities in her favour. - The trial Magistrate on his part, upon evaluation of the evidence as $[9]$ adduced before him by the parties, he correctly directed himself on the burden of proof in civil suits that pursuant to Sections 101, (1), 102 and 106 of the Evidence Act, the Plaintiff/Appellant bore the burden to prove his case on the balance of probabilities, Nsubuga vs Kavuma [1978] HCB 307. - [10] The trial Magistrate found that though the Appellant claim that the suit land belongs to him, his purported purchase agreement did not have consideration and did not have the description of the boundaries save for only showing the neighbours to the land. That the Appellant's claim that he allowed the Respondent to occupy the suit land, he adduced no evidence to prove so because there is no tenancy agreement or any other document to that effect. The Respondent having on the other hand adduced evidence in form of agreements that she acquired the suit land and other adjacent

pieces of land she occupies, he gave judgment in favour of the Respondent, that she is the rightful owner of the land.

- [11] The Appellant was dissatisfied with the judgment and orders of the trial Magistrate and lodged the instant appeal on the following grounds of appeal; - The learned trial Magistrate erred in law and fact when he $1.$ failed to evaluate the evidence on record thus leading him to reach a wrong decision that prejudiced the Appellant. - The learned trial Magistrate erred in law and fact when he $2.$ ignored documentary evidence of the Appellant and relied on the uncorroborated documentary evidence of the Respondent such as P. Exh.2 leading him to reach a wrong decision. - The learned trial Magistrate erred in law and fact when he held $\mathfrak{Z}$ . that the Appellant failed to adduce evidence to prove, when he allowed the Respondent to occupy the suit land and built thereon a house, that he intended the Respondent to be a licensee on the suit land. - The learned trial Magistrate erred in law and fact when he held $4.$ that the suit land belonged to the Respondent when there was no evidence to support his finding thus leading him to reach a wrong decision that prejudiced the Appellant.

# **Counsel legal representation**

[12] The Appellant was represented by Mr. Baryabanza Aaron of Ms Baryabanza & Co. Advocates, Hoima while the Respondent was represented by Mr. Aliku Innocent of Ms P. Wettaka Advocates, Both Counsel filed their respective submissions for Kampala. consideration in the determination of this appeal.

# Duty of the 1<sup>st</sup> Appellate Court

[13] This court as a first appellate court is to thoroughly scrutinize, reappraise and evaluate the evidence that was adduced before the trial Magistrate and draw its own conclusions of facts and law but bearing in mind it did not have the advantage of seeing and having witnesses testify, Peters vs Sunday Post Ltd [1958] D. A. 424. This court is therefore to review the evidence on record and determine whether the conclusion originally reached upon that evidence should stand.

[14] This court considers tackling all the 4 grounds together as argued by both Counsel since they revolve around how the trial Magistrate evaluated the evidence before him.

# Grounds 1, 2, 3 & 4: Evaluation of evidence

- [15] Counsel for the Appellant submitted that the learned trial Magistrate failed to evaluate the evidence on record thus leading him to reach a wrong and unjust decision. That had the trial Magistrate evaluated the evidence on record and properly subjected it to close scrutiny and judicial analysis, he would have rejected the evidence of the Respondent and held in favour of the Appellant. - [16] Counsel for the Appellant argued that the Appellant purchased the suit land from **Asiimwe Paul** on the $5/1/2023$ at shs. 1,200,000/= (P. Exh.1) and the Respondent was allowed to utilise the land temporary, albeit orally, not in writing and that this evidence was supported by Asiimwe Paul (PW2) who denied ever selling any land to the Respondent and denied knowledge of the Respondent's agreement (D. Exh.1) dated 3/8/2012. Counsel labelled D. Exh.1 dated 3/8/2012 a forgery reasoning that, first of all, it is not an agreement but a purported handover of a kibanja by PW2 to the Respondent which the Respondent and the Appellant purchased from Namboga. Secondly, that there is no way Namboga would have sold the land to PW2 on 27/10/2012 and then PW2 hands it over to the Respondent on 3/8/2012 before PW2's purchase. - [17] In this case, I find that as per the record of the proceedings, the Appellant (PW1) adduced evidence that he purchased the suit land from Asiimwe Paul (PW2) on 5/1/2013 (P. Exh.1) while the Respondent on her part, claimed that she rightfully acquired the

suit land by joint purchase with Asiimwe Paul (PW2) and Turinawe **Stephen** way back on 3/8/2012 (D. Exh.1). That following the joint purchase, the property was subdivided and each individual got his/her respective share but Asiimwe Paul (PW2) and Turinawe **Stephen** later sold off their respective shares to the Respondent.

[18] Upon perusal of **D. Exh.1** dated 3/8/2012 which the Respondent relied upon as the basis of her ownership of the land, as rightly submitted by Counsel for the Appellant, it is not a sale agreement but a document of "SHARING OF LAND" between the Respondent and Asiimwe Paul (PW2) where PW2 is handing over land to the The Respondent stated that the 3 of them i.e. the Respondent. Appellant, Respondent and a one Turinawe Stephen had jointly purchased the land from Namboga. What is however interesting on the part of the Respondent is that there is no evidence on record in form of any agreement or otherwise to support this claim that the trio jointly purchased the suit land from the said Namboga.

[19] At page 25 of the typed proceedings, The Respondent (DW1) stated as follows:

"The suit land belongs to me because I purchased it.

I have the agreement for the land I bought from Omuhereza Namboga".

In **D. Exh. I** which the Respondent relied on relating to the sharing of the land by the Respondent, Turinawe Stephen and Asiimwe **Paul** (PW2), there is a clause reading thus:

"There past only two days when we had jointly purchased and we divided the land equally.

We have all agreed..., Asiimwe Paul, Turinawe Stephen and Tibakunirwa Jane and each has taken his/her own land according to how payments were done and the bipandes he/she wanted.

The agreement was made in my names since they trusted me and gave me the money for purchase.

This agreement crosses my agreement that Omuhereza Namboga made for me when I was purchasing on behalf of my fellows".

- [20] That agreement upon which the Respondent claim that she purchased land on behalf of her fellows from Namboga was not adduced in evidence. The Respondent purport to had purchased the land the trio shared but Asimwe Paul (PW2) who is one of them denied knowledge of such a sharing. - [21] The Appellant and PW2 on their part denied knowledge of D. Exh.1 thought it had PW2's name. The Appellant's Counsel referred to it in his submissions as a forgery. In her pleadings, the Respondent pleaded D. Exh.1 as the purported joint purchase agreement but on its perusal one finds that it is not a purchase agreement. The area L. C. I Chairman, Birungi (DW2) stated during cross-examination that he had never seen the purported joint purchase agreement and conceded that it could not be in existence. - [22] On the other hand, the Appellant relied on the purchase agreement of the suit land from Asiimwe Paul (PW2) as per P. Exh.1 dated 5/1/2013. PW2 had in turn purchased the land from Namboga Tereza and this purchase had been witnessed among others by the In his evidence, PW2 supported and Respondent (P. Exh.2). corroborated the evidence of the Appellant though he also conceded that he had ever sold land to the Respondent of about 1/2 acres. The land PW2 sold to the Respondent has nothing to do with the Appellant and therefore, it is not part and parcel of the suit land. As also conceded by the Respondent D. Exhs.2-7 do not refer to the suit land. The exhibits refer to the various pieces of land the Respondent purchased which are next of adjacent to the suit land. - [23] The above evidence was not challenged by the Respondent during cross-examination or by any other evidence. The fact that the Respondent is in possession of the suit portion of land was clearly explained by the Appellant in his evidence. He permitted the Respondent, a daughter to her sister, to temporary be on the land for only cultivation of crops to feed her family until when she

turned around to plant trees and bring her children onto the land for construction of houses thus outlived her stay on the land.

- [24] In his judgment, the trial Magistrate faulted the agreement of the Appellant (P. Exh.1) on the ground that it did not bear the stamp of the L. C. I Chairman and the consideration for the land. - [25] I do agree with Counsel for the Appellant that whereas it is important for neighbours, local residents of the area and local leaders to witness sale agreements, there is no law that renders any agreement invalid by reason of omitting to have the locals and their leaders as witnesses or without the Chairman's stamp endorsed thereon. - [26] In this case, the Appellant's agreement (P. Exh.1) was amply witnessed by 3 people, it clearly showed the neighbours to the land and it bore the consideration indicated Ugx. 1,200,000/=, the purchase price. I find P. Exh.1 a valid land sale agreement.

[27] As to whether the appeal is or the suit was *res judicata*, I find no evidence to support the claim. The doctrine of *res judicata* is codified in the provision under **S.7 CPA** which provide as follows: "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the parties, or between the parties under whom they or any of them claim litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court".

Res judicata is a legal doctrine that prevents parties from relitigating a dispute that has already been decided by a court. Parties are banned under the principles of res judicata from litigating the same dispute again once a final judgment has been rendered by a competent court, Boutique Shazim Ltd vs Norattam Bhatia C. A. C. A. No. 36 of 2007.

[28] On record there is no valid judgment that was adduced by the Respondent which is to the effect that the suit land was litigated upon and decreed to her. The purported L. C.2 judgment (D. Exh.8) which is not in the language of court, English and without a translated copy is under S. 88 CPA inadmissible in evidence, Katunda vs Atuhaire, H. C. M. A. No. 185 of 2004. In Assumpta Sebunya vs Kyomukama James, H. C. Misc. Cause No. 55 of 2012. It was held;

"Section 88 of the CPA is very clear. That the document which is not translated into the language of court which is English, cannot be admitted in evidence".

D. Exh.8 was therefore wrongly and irregularly admitted by the trial Magistrate when it was not in the language of court.

- [29] As regards the trespass, the Appellant allowed the Respondent who happened to be a daughter of his sister to utilise the suit land temporarily on condition that she should not grow permanent crops and construct permanent structures thereon. However, the Respondent did the contrary, started growing thereon coffee and eucalyptus trees and invited her sons on the land to construct houses thereon. As a result, the Appellant demanded that she vacate the land. It follows therefore that by the Respondent failing to vacate the suit land when she violated the term of the initial permission to temporary use the suit land for growing only food crops to feed her family without permanent crops and trees, she became a trespasser liable to be evicted. - [30] In conclusion, I find that there was overwhelming evidence on record that the Appellant purchased the suit land from Asiimwe Paul (PW2) and his evidence was supported and corroborated by that of PW2, PW3 and PW4. PW2 identified the land he sold to the Appellant as the suit land and it is the same land the Appellant permitted the Respondent to temporarily occupy. The other piece of land PW2 conceded to had sold the Respondent is different from disputed portion of land.

- [31] In the premises, I find that the learned trial Magistrate erred in law and fact when he failed to evaluate the evidence on record leading him to make a wrong decision that the suit land belongs to the Respondent and that the Respondent was not a trespasser thereon. **Grounds 1-4** are found to have merit and they accordingly succeed. - [32] As a result, the judgment of the trial Magistrate is accordingly quashed and the orders therefrom set aside and substituted with orders that: - The suit land belongs to the Appellant and the Respondent is $(a)$ a trespasser thereon. - A permanent injunction accordingly issue against the $(b)$ Respondent and her agents and anyone claiming from her restraining them from further trespass on the suit land. - Order for vacant possession of the suit portion of land $(c)$ measuring $1\frac{1}{2}$ acres in the favour of the Appellant accordingly issues and or eviction order thereof. - General damages for trespass; since it is the Appellant who $(d)$ had permitted the Respondent on the suit land until when upon outliving her stay on the land refused to vacate, I award $3,000,000/=$ as damages for the the Appellant **Ugx.** inconvenience, pain, torture and stress suffered by the Appellant because of the actions of the Respondent's stay on the land beyond the permitted time. - No order as to costs considering the relationship that exists $(e)$ between the parties. The Respondent is a daughter of the Appellant's sister who had been staying with the Appellant's family for some time.

day of October, 2024. Dated at Hoima this $25<sup>th</sup>$

Byaruhanga Jesse Rugyema **IUDGE**