Byarufu v Bikara and Another (Civil Appeal 93 of 2022) [2025] UGHC 105 (17 January 2025)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL APPEAL NO. 0093 OF 2022 (Formerly MSD LD-CA- No.41 of 2022)

### BYARUFU JACKSON :::::::::::::::::::::::::::::::::::: **VERSUS**

#### 1. BIKARA VICTORIA 2. NDOROLIRE BALAMU ::::::::::::::::::::::::::::::::::::

[Appeal from the Judgment and orders of H/W Komakech Kenneth, Magistrate Grade One of Buliisa dated 7/7/20221

#### Before: Justice Byaruhanga Jesse Rugyema

## **IUDGMENT**

## **Background**

- The Respondent brought this suit against the Appellant in the lower court for $[1]$ inter alia, land grabbing, a decalaration of ownership of the suit land and general damages for loss as a result of the defendant/Appellant's acts on the suit land. - It was the Respondent's case that they are the rightful/lawful owners of the $[2]$ suit land measuring approx. 15 acres situated in Kigwere North East village, Kigwere Sub county in Buliisa District which they inherited from their late grand father a one Keziron Kaheru Mahembe who acquired the same by way of first occupation many years ago. - That sometime back, the Respondents' Auntie, a one Samalie Kaikara $[3]$ (deceased) got married to the Appellant's father, a one Kyomya Bahoire and that they were given a piece of land to cultivate by the said Keziron Kaheru **Mahembe**, their grand father. - That while the Respondents were in possession of the suit land, in 2017, the $[4]$ Appellant started laying false claims of ownership due to greed of the compensation from Tullow Oil Company.

- The Respodents contended that the Appellant's conduct and/or continued $[5]$ acts of land grabbing has occasioned and continue to occasion them loss, untold anguish, discomfort, inconvenience and denied them opportunity to further develop the land and hold him liable in damages. - [6] The Appellant/defendant on the other hand denied the Respondents' claims and contended that he is the lawful owner of the suit land acquired through inheritance from his late father, Kyomya Bahoire Masahura who acquired it by first occupation. - $[7]$ The trial Magistrate on his part found that the Appellant was given a portion of land by the Respondents' grandfather, Keziron Mahembe but that it is not the suit land and therefore concluded that the suit land belongs to the Respondents/plaintiffs and that the Appellant was a trespasser thereon. - $[8]$ The Appellant/defendant was dissatisfied with the judgment and orders of the trial Magistrate and as a result, lodged the present appeal on the following grounds: - 1. The trial Magistrate erred in law and fact when he wrongly evaluated the evidence of the witnesses and denied the appellant to adduce documentary evidence in court hence leading to miscarriage of justice. - 2. The trial Magistrate erred in law and in fact by failing to conduct a proper locus visit thus arriving at an erroneous conclusion. - 3. The trial Magistarte erred in law and fact when he held that the appellant was a trespasser on the suit land where he has lived since 1962. - 4. The trial Magistrate erred in law and fact when he held that the appellant had failed to adduce evidence to show that the disputed land is part of what he had inherited from his parent.

# **Counsel legal representation**

The Appellant was represented by Nicholas Abbasa of LDC Legal Aid Clinic, $[9]$ Masindi while the Respondents were represented by Mr. Robert Hatega of M/s Baryabanza & Co. Advocates, Hoima. Both counsel filed their respective submissions for consideration in the determination of this appeal.

# Duty of the first Appellate Court

- This court being the first appellate court, it is a well settled principle on a $1^{\rm st}$ $[10]$ appeal that the parties are entitled to obtain from the appeal court its own decision on issues of fact as well of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it had neither seen nor heard the witnesses testify, Fr. Narsensio Begumisa & 3 Ors Vs Eric Tibebaga, SCCA No. 17 of 2002 [2004] KALR 36. - This court is in the premises enjoined to re-evaluate the evidence to an $[11]$ exhaustive scrutiny and come up with its own findings. The discretion of the lower court/trial court should not be interfered with by the Appellate court unless it is found that the trial court in exercising its discretion has misdirected itself in some matter, see also Stewards of Gospel Talents Ltd Vs Onyango HCCA No.14 of 2008 & NIC Vs Mugenyi [1887] HCB 28.

Grounds 1 & 4:

- 1. The trial Magistrate erred in law and fact when he wrongly evaluated the evidence of the witnesses and denied the appellant to adduce documentary evidence in court hence leading to miscarriage of justice. - 4. The trial Magistrate erred in law and fact when he held that the appellant had failed to adduce evidence to show that the disputed land is part of what he had inherited from his parent - Counsel for the Appellant submitted that the 2nd plaintiff and **Byetima Tegras** $[12]$ (PW2) testified that the Appellant started to trespass onto their land which he inherited from their grandfather Keziron Mahembe in 2017. That the Appellant/defendant's father, Kyomya Bahoire came on the family land after marrying their Auntie Samalie Kakaira and they lived together and utilised the same since 1960s. That therefore, the Appellant/defendant inherited the suit land from his parents and has been utilising the same since 1962. - submitted that the Counsel above issues, the $[13]$ Lastly, that $on$ Appellant/defendant was not represented by a lawyer during the trial in the lower court. That he tried unsuccessifuly to adduce documentary evidence which included the Petroleum land ownership document, L. C1 referral letter to L. C2, judgment and Mediation notes by Biludu Mediator.

- Counsel for the Respondent submitted that the alleged documents the $[14]$ Appellant claim were not admitted were merely smuggled onto court record because they were neither pleaded nor produced in court during the hearing. That on the other hand, the Respondents adduced evidence of a Consent letter of land owners enabling Total ExP (U) B. V to exercise its rights under the licence and it was admitted as P. Exh.1. Counsel concluded that there is no reason why the appellate court should interfere with the findings of the trial Magistrate. - Upon perusal of the record, I find that the Respondents' case was simply that $[15]$ the Respondents inherited the suit land from their grandfather, **Keziron** Kaheru Mahembe who acquired the same by way of first occupation. That the Appellant/defendant's father Kyomya Bahoire came on the land when he married the Respondents' Auntie, a one Samali Kakaira and thy were given a portion of land on the family land neighbouring the suit land by Keziron Mahembe. That it is on this land that was given to them, where they constructed a house and are living up todate. That it is the portion of land that Tullow Oil wanted to acquire and the Appellant started laying claims over the same, i.e, the suit land. Bikara Victoria (PW1) in particular testified that the issue concerning the suit land was before the L. C1 court and the matter was decided in their favour, the Respondents. - Although the 1st plaintiff (PW1) referred to the L. C court judgment, it was $[16]$ neither pleaded nor produced in evidence. The Appellant/defendant on the other hand had pleaded the L. CIII judgment as follows:

"The defendant wish to bring this matter to the attention of the plaintiffs that since the same suit land case was heard and decided on the $14$ th day of September 2019 by Kirama Parish Court (Local Council 2) in favour of the defendant, the plaintiffs should have taken the option of appealing against the decision of Parish Local Council Court."

In evidence, neither the Appellant nor his witnesses also adduced any $[17]$ evidence regarding the alleged L. CIII judgment and as a result, the judgment was not produced in court. Therefore, in agreement with counsel for the Respondents, the said L. CIII judgment cannot be adduced in evidence at submission stage by attaching it to the submissions. What counsel has done in this case by attaching a copy of the judgment to his submissions amounts to adducing evidence from tha bar which is prohibited. Evidence be it oral or

documentary has to be adduced during the hearing of the suit so that the witnesses' veracity and authenticity of the document are accordingly tested during cross examination.

- The other complained of documents on the other hand i.e, the L. C1 referral $[18]$ letter, Mediation notes and the Petroleum 'land ownership' documents were neither pleaded nor adduced by the Appellant in evidence. In any case, they are not even documents of ownership of property that would confer the Appellant any right in the suit land. It is also trite that findings in a failed mediation cannot be used against a party and therefore, the Mediation notes referred to by Appellant could not be used in evidence against the Respondents. - As a result of the above, in conclusion, I find that there is no evidence that $[19]$ the Appellant/defendant was denied a chance to adduce documentary evidence. The Appellant being unrepresented by counsel cannot be an excuse for his failure to adduce such evidence he deemed important. In any case, equally, the Respondents/plaintiffs were unrepresented by any counsel and therefore in the premises, no miscarriage of justice occasioned the parties. - As regards ownership of the suit land, the Respondents (PW1 & PW2) adduced $[20]$ evidence that their grandfather, Keziron Mahembe gave a portion of land to the defendant/Appellant's father, Kyomya upon his marriage to the Respondents' Auntie, Samali Kaikara. That it is on that portion of land where they built a house and live todate. This land is adjacent to or neighbours the suit land. - The above evidence was not challenged by the Appellant/defendant during $[21]$ cross examination. The Appellant instead testified without further that he is the owner of the suit land by virtue of acacia and citrus trees they planted as a family thereon. That there was also a swamp with a well dug within the swamp on the suit land. I however find that the foreging is not evidence that the Appellant inherited the suit land from his parents or that his parents ever owned it. - Upon visit on locus, the trial Magistrate observed in his judgment that court $[22]$ ascertained the exact boundaries of the suit land and the land was found in essence, vacant with none of the parties occupying the same save for the natural trees and a swamp. Court found the Appellant's land to be adjacent

to the suit land as the Respondents testified in court. It was apparent that the land the Appellant's father got from **Keziron Mahembe** is intact but under the utilisation of the Appellant as it comprises the Appellant's family houses but now, the Appellant has proceeded to lay claims of the suit land that is adjacent which has been found to belong to the Respondents. This court is not in position to interfere with the trial Magistrate's findings at locus as it has not been shown that he misdirected himself on any matter.

In the premises, I find the $1^{\rm st}$ and $4^{\rm th}$ grounds of appeal without any merit and $[23]$ both of them accordingly fail. The disputed land is not part of what the Appellant inherited from his father, **Kyomya Bahoire**.

### Ground 2: The learned trial Magistarte erred in law and fact when he failed to conduct a proper locus visit thus arriving at an erroneous conclusion.

Counsel for the Appellant submitted that the trial Magistrate at p.6 of the $[2]$ judgment ruled,

> "....that on the south of the suit land is the defendant's land and the suit land is vacant with no one occupying it save for the natural trees and a swamp...."

Counsel argued and conteded that the above contradicted his sketch map of the locus, that it is clearly different from the contents of the judgment.

Upon perusal of the sketch map, evidence on record and the judgment of the $[25]$ trial Magisrate, I find no such contradiction. The sketch map places a one Isingoma Emmanuel on the North, Kiiza and Kate on the East and West respectively, and then road to Kilyango village on the South. Though the sketch map and the observations of the trial Magistrate at locus are not all that detailed and therefore wanting, it is clear from the evidence as adduced by the Respondents that the Appellant's land is on the South. Indeed, the trial Magistrate found Isingoma's land where he was settled and the Appellant's land on the South, across the road heading to Kilyango village as was clearly revealed by the Respondents that the Appellant's land neighbours the suit land and confirmed by Nyamundu (DW2). The claim by Byarufu Jackson (DW1) that in 2013, the L. C3 of the area intervened in the boundary dispute with Isingoma Emmanuel (PW3) and a one Barugahara (PW4) by opening up the boundaries is not supported by any evidence. The same apply to his claim that the houses of both Isingoma and Barugahara are on the suit land. The fact is that both Isingoma and Barugahara occupy their respective portions

of land which were given to them out of the suit land by the Respondents' father, Nkumire Mahembe as per the evidence of the 2nd Respondent (PW2) and both PW3 & PW4 adduced during the trial. It is the same, the late Nkumire **Mahembe** that gave out the **Consent letter** (P. Exh.1) enabling Total ExP (U) B. V to exercise its rghts under the licence over the suit land.

As a result of the above, I do find this ground of appeal without merit. It $[26]$ accordingly fails.

## Ground 3: The learned trial Magistrate erred in law and fact when he held that the Appellant is a trespasser on the suit land he lived since 1962.

- As already found by this court, there is no evidence that was adduced by the $[27]$ Appellant that he has lived or has any interet on the suit land. As a result, the Appellant's acts in form of his false claims of ownership and acts thereon amount to trespass which occurs when someone interferes with another person's property within the meaning of Justine Lutaaya Vs Sterling Engineering Co. Ltd, SCCA No.11 of 2002 which defines trespass as an unauthorised entry upon land and thereby interfere or portend to interfere with another person's lawful possession of the suit land. - As a result of the above, this ground of appeal is also found to lack merit and $[28]$ it accordingly fails. - All in all, I find all the 4 grounds of appeal lacking merit and as a result, the $[29]$ judgment and orders of the trial Magistrate are upheld and the appeal is accordingly dismissed with costs.

Dated at Hoima this 17th day of January, 2025.

**Byaruhanga Jesse Rugyema** JUDGE.