Chebuson v Monge (Civil Appeal 85 of 2022) [2023] UGHC 107 (20 November 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### CIVIL APPEAL NO. 85 OF 2022

(Arising from Kapchorwa Civil Suit No. 00040 of 2021)

SCOVIA CHEBUSON ::::::::::::::::::::::::::::::::::::

### **VERSUS**

MONGE FRANCIS::::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

### JUDGMENT

### 1. Background

2. The Respondent (referred to as the Plaintiff in the lower court) sued the Appellant (referred to as the Defendant in the lower court) under Civil Suit No. 0040 of 2021 for vacant possession of the land measuring about 3 acres located in Kapteka Village, Chebonet Parish, Kapsinda Sub-county, Kapchorwa District, permanent injunction, general damages for trespass and costs of the suit.

## 3. The Respondent/Plaintiff's case

4. The Respondent's facts are that the Respondent is the rightful owner of the suit land having acquired the same from his father Masai Kapmukeyo. That he took immediate possession of the suit land and used it for cultivating food crops such as maize and beans and had been using the same without interference until June, 2021 when the Appellant trespassed and claimed ownership without any colour of right thus causing loss to the Respondent.

## 5. The Appellant/Defendant's case

6. From the written statement of defence, the Appellant denied the Respondent's claims and stated that she is the customary owner of the suit land measuring approximately 4 acres having been given to her by her father in law in 1994 upon her marriage. The Appellant averred that she


made an oral agreement of hiring out one acre of the suit land to the Plaintiff in 2008 for one year but would be renewed yearly. That the Respondent took possession and utilized the said one acre of the suit land till 2020 when he started encroaching on other portions of the defendant's land by clearing the bushes therein beyond the one acre he was hiring and she terminated the oral hiring agreement with the Plaintiff in July 2021 and took possession of her one acre from the Respondent.

### $7.$ Issues

- 8. The issues for the trial court's resolution were; - ĭ., Who is the rightful owner of the suit land? - ii. Whether the Defendant is a trespasser on the suit land? - iii. Remedies available to the parties? - 9. The Respondent called 8 witnesses in a bid to prove his case and the Appellant called 5 witnesses. - 10. The trial magistrate considered the evidence of the above witnesses together with the pleadings on the court record and came up with a decision where he found the matter in favour of the Respondent. - The Appellant was dissatisfied with the decision of the trial court 11. hence this Appeal.

#### 12. **Grounds of Appeal**

- 13. The Appeal is based on the following grounds; - 1. The learned trial magistrate erred in law and in fact when he held that the suit land belonged to the plaintiff/Respondent - 2. The learned trial magistrate erred in law and in fact when he failed to evaluate the evidence before him and as a result reached a wrong decision - 3. The decision of the learned trial magistrate is tainted with fundamental misdirection and non-direction in law and in fact and as a result has led to a miscarriage of justice. - 4. That the trial magistrate erred in law and in fact when he awarded excessive general damages of $3,000,000/$ = against the Appellant. - $14.$ She prayed that the Appeal be allowed, judgment and orders of the lower court be set aside and costs be awarded to the Appellant here and in the court below

$\overline{2}$

#### 15. **Legal Representation**

- $16.$ E. Angura & Co. Advocates represented the Appellant while the Respondent was represented by Mutembule & Co. Advocates. - 17. The Appeal proceeded by way of written submissions and they are on the court record.

#### 18. **Determination of Court**

Submissions by counsel for the Appellant

#### $19.$ **GROUND NO.1:**

# The learned trial magistrate erred in law and in fact when he held that the suit land belonged to the plaintiff/Respondent

- Counsel for the Appellant submitted that in civil cases the burden 20. of proof is on the plaintiff to prove his case on the balance of probabilities but the plaintiff failed to prove sufficient evidence in the lower court as most of his evidence fell short for instance all his witnesses testified that the Respondent acquired the land prior to 2013 after the Appellant had won a case against her brother in law. He argued that the Respondent ganged up with the Appellant's brother in law after they lost in court - $21$ Counsel while referring to PW1's evidence submitted that at the time the Respondent sued the Appellant, her brother in law was not on the land and it appears he came on the land after the suit had been decided in favour of the Appellant. Counsel submitted that the trial magistrate ignored the evidence where the Appellant hired the land to the Respondent. - $22.$ He further submitted that the Respondent gained entry to the Appellant's land by pretending to hire and later on he gained further entry by accessing more land till he encroached on 4 acres. He cited the case of **Justine MN. Lutaya V. Stilling SCCA 001** to support his submissions

#### $23.$ **GROUND NO.2**

The learned trial magistrate erred in law and in fact when he failed to evaluate the evidence before him and as a result reached a wrong decision.

$\overline{3}$

$24.$ Counsel submitted that the trial magistrate failed in his duty to evaluate the evidence as a whole yet it heavily depended on oral testimony of the Appellant where she said that she inherited 10 acres from her late husband Chebuson in 1997 when he passed on and the same evidence was buttressed by DW2, DW3, DW4 and DW5. Counsel added that the same evidence was further corroborated by DW4 the former L. C.1 Chairperson of the area who informed court that the land in dispute belonged to the Appellant's father in law Arap Mugaga and that the Appellant's husband was given the land but the Respondent's father had no land bordering the Appellant's land.

- 25. Counsel argued that the Appellant had clear and strong case in the lower court which was totally not considered by the trial magistrate in the evaluation of the evidence. He submitted that all the Appellant's witnesses were consistent especiary DW4 the former Chairperson LC.1 who confirmed that the ownership of the disputed land was for the late Appellants husband who had quiet possession. - He submitted that the one acre the Appellant lost in the lower court 26. was part of the land she inherited from her late husband and there is no evidence to support the trial court's evidence that the said land belongs to the Respondent. Counsel contended that had the trial magistrate evaluated properly the evidence on the court record, he would have found that the Respondent's case lacked requisite standard of proof. - The Appellant's counsel further argued that her claim under Civil 27. Suit No. 007 2001 was for 4 acres which had been allocated to the Appellant's husband which the brothers in law wanted to grab from her and the Court ruled in her favour and after losing, they decided to gang up with her brothers in law to gain entry to the land by pretending to hire the land. Counsel submitted that the trial magistrate referred to that evidence but gave it a wrong interpretation

#### **GROUND NO.3** 28.

## The decision of the learned trial magistrate is tainted with fundamental misdirection and non-direction in law and in fact and as a result has led to a miscarriage of justice.

Counsel submitted that there was overwhelming evidence in the 29. lower court in favour of the Appellant which the trial magistrate failed to evaluate. He contended that the Plaintiff/Respondent did not prove his case on the balance of probabilities and that he is a trespasser grabbing the Appellant's land.

$\overline{4}$

30. Counsel cited Halsbury's Law of England 3<sup>rd</sup> edition vol. 10 page 583 paragraph 888 which defines miscarriage of justice to mean where there has been a misdirection of the trial court on a fact or law relating to the evidence given or where there has been un fairness in the conduct of the trial. He also referred to the case of Bugishu Cooperative Union Vs. Kitts Lawrence Civil Appeal No. 2 of 2002

### 31. GROUND NO.4: That the trial magistrate erred in law and in fact when he awarded excessive general damages of $3,000,000/$ = against the Appellant.

32. Counsel submitted that there was a miscarriage of justice at the trial by the lower court as it was very unfair to award general damages of Ugx $3,000,000/$ = against the Appellant in the lower court. He contended that there was an over whelming evidence in the lower court in favour of the Appellant and for that reason, it was un fair for the trial court to award excessive general damages against the Appellant in the lower court with no sufficient reason given.

#### 33. **Preliminary objection**

- Counsel for the Respondent in his submissions raised two points of 34. law; one is about failure to serve the memorandum of Appeal. Counsel argued that the Appellant never served the Respondent with the Memorandum of Appeal contrary to Order 43 rule 11 of the Civil Procedure Rules. He submitted that the Memorandum of Appeal was endorsed on 16<sup>th</sup> day of June 2022 and it would have been served on the Respondent on 6<sup>th</sup> of July, 2022 which she did not do contrary to Order 5 rule 2 of the Civil Procedure Rules. - The $2^{nd}$ point of law was about the failure to extract a degree before 35. filing a memorandum of Appeal. Counsel submitted that the Appeal before this court is incompetent as it was not accompanied with the extracted and certified degree from the magistrate Court. He argued that the Appellant's failure to comply with the mandatory legal requirement renders the appeal fatally defective and incompetent. He prayed that the appeal be struck out.

#### Submissions by counsel for the Respondent 36.

Counsel for the Respondent argued grounds 1, 2 and 3 together and 37. ground 4 separately.

38. GROUND NO.1:

The learned trial magistrate erred in law and in fact when he held that the suit land belonged to the plaintiff/Respondent

#### 39. **GROUND NO.2**

The learned trial magistrate erred in law and in fact when he failed to evaluate the evidence before him and as a result reached a wrong decision.

#### 40. GROUND NO.3

The decision of the learned trial magistrate is tainted with fundamental misdirection and non-direction in law and in fact and as a result has led to a miscarriage of justice.

In his submissions counsel for the Respondent referred to all the $41.$ Plaintiff/ Respondent's evidence and Defendant/Appellant's evidence to argue that all the witnesses that were present during the division of Arap Mugaga's land confirmed that the suit land was not part of the land that was divided among the sons of Arap Mugaga. He submitted that most of the Appellant/ Defendant's witnesses were not present during the division of the land among the sons of the late Mugaga. He prayed that the Appeal be dismissed.

#### GROUND NO.4: 42.

# That the trial magistrate erred in law and in fact when he awarded excessive general damages of 3,000,000/= against the Appellant.

- Counsel for the Respondent submitted that the general damages as 43. awarded by the trial court were reasonable and not excessive. He contended that the award of damages is a discretion of court and the intention of the same is to put the aggrieved party to a fair position if the defendant has not violated the right of the plaintiff - Counsel argued that according to PW1's evidence, the Respondent $44.$ stated that she stopped using the land in January 2021 and therefore, she was deprived of using the land and as such suffered injury and the only way to compensate the Respondent for the time spent without using the land was to award general damages of Ugx. 3,000,000/= which is reasonable basing on the evidence on the court record. He cited the case of **Stroms V. Hutchinson [1905] AC 515** to support his submissions.


He contended that the Appeal lacks merit and should be dismissed $45.$ with costs.

- 46. In rejoinder counsel for the Appellant submitted on the $2^{nd}$ preliminary Objection that it is no longer a requirement of the law for the Appellant to extract a decree before he files the appeal as the same is a mere technicality which does not take away the merits of the Appeal. He cited the case of W. T. M Kisule Vs. Nampewo[1984] HCB and the case Banco Arambe Espano Vs. Bank of Uganda Civil Appeal No. 42 of 1998, where court while citing Order 27 rule 7(3) of the Civil Procedure Rules stated that the duty to extract a decree lied upon the trial magistrate and failure to extract the same should not visited upon the Appellant. He argued that failure to extract the degree does not in any way make the Appeal incompetent. - Regarding the 1<sup>st</sup> preliminary objection counsel for the Appellant 47. submitted that he lost in the lower court on 31st May, 2022 and filed a Memorandum of Appeal on 14<sup>th</sup> June, 2023. A letter requesting for the record of proceeding was issued on 4<sup>th</sup> October, 2022. Counsel argue that the Respondent upon winning the case in the lower court he attempted to evict the Appellant and he was immediately served with the Appeal but he refused and kept on being elusive. - Counsel submitted that both parties were not represented in the 48. lower and only the Respondents lawyer came at the point of submissions. He contended that the claim that the Memorandum of Appeal was not served on time is an afterthought. He prayed that the preliminary objections be dismissed. - On the substance of the Appeal, counsel for the Appellants 49. submitted in rejoinder that the trial magistrate failed in his duty to properly evaluate the evidence on record and as a result it has occasioned a miscarriage of justice. He cited the case of Justine M. N Lutaaya V. Stirling Co. SCCA No.11 of 2002 to submit that the Appellant gained entry into the Appellant's land through hiring before he eventually trespassed upon it and claimed ownership. Hence, it was wrong for the trial magistrate to hold that the Appellant was in her own land possession - Counsel also submitted that the general damages were excessive 50. and there was no basis for such an award.


#### Duty of the first Appellate Court 51.

- This court takes note that it is the first appellate court and therefore 52. it is under a duty to scrutinize all the evidence on the court record. In Moses Bogere Vs Uganda SC Crim. App. No. 10 of 1997 their Lordship stated that- "What causes concern to us about the judgment, however is that it is not apparent that the Court of Appeal subjected the evidence as a whole to scrutiny that it ought to have done ......... While we would not attempt to describe a format in which a judgment of the court should be written, we think that where a material issue of objection is raised on appeal, the appellant is entitled to receive an adjudication on such matter and on such issue from the appellate court". - The above principle will guide this court in the resolution of this 53. Appeal.

#### **Analysis of Court** 54.

I have looked at the court record and the submissions of all the 55. parties and for purposes of clarity, I will handle the preliminary objections raised by counsel for the Respondent first.

### Preliminary objection No.1: 56. Failure to serve the Memorandum of Appeal

- Order 49 rule. 2 of the Civil Procedure Rules provides that; All 57. orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons" - Order 5 rule 2 of the Civil procedure Rules provides that; "service 58. of summons issued.... shall be effected within 21 days from the date of issue" - In the instant case counsel for the Appellant submitted that 59 immediately after the Respondent winning the case in the trial court, he wanted to evict the Appellant and he was served with the Appeal but he rejected it and became elusive. - However Order 5 rule 15 of the Civil Procedure Rules provides for so 60. many circumstance in which service can be effected to a party other than

personal service, and after undertaking any of the circumstances given, the law requires that the process server returns the original to the court from which it was issued with a report endorsed on it or annexed to it stating that he or she has so affixed the copy and the circumstances in which he or she did so, the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed.

- 61. All the above circumstances were available to the Appellant to ensure service of the Memorandum of Appeal to the Respondent but none was under taken nor was any report of the same tendered in court. - Secondly, if there was service, the Appellant ought to avail this court 62. with the affidavit of service as proof of service but the same was not provided. (See Order 5 rule 16 of the Civil Procedure Rules). - Counsel for the Respondent submitted that the Respondent only 63. came to know about the Appeal in September, 2023 when he was trying to follow up his matter in Court and he was informed of the pending appeal. On hearing that information, he instructed his lawyer to follow up the matter who confirmed it to be true. - In the case of Andre Maviri Vs. Jomanyi Property Consultants 64. Ltd CA. Civil Application No. 274 of 2014. "Where it was stated that taking an essential step is the performance of an act by a party whose duty is to perform that fundamentally necessary action demanded by the legal process, so that subject to permission by the Court, if the action is not performed as by law prescribed, then whatever legal process has been done before, becomes a nullity, as against the party/who has the duty to perform that act." - In the instant case, the Appellant did not serve the Memorandum of 65. Appeal as required by the law. It does not matter how the Respondent came to know about the Appeal, what matters is that service of the Memorandum of the Appeal to the other party is mandatory and failure to do so nullifies all the legal processes undertaken. - It is trite that a Court of law cannot sanction what is illegal, an 66. illegality once brought to the attention of Court, overrides all questions of pleading including any admission thereof and court cannot sanction an illegality". See Makula International Ltd vs. His Eminance Cardinal Nsubuga& A'nor (1982) HCB 11.


- In the circumstance, I agreed with counsel for the Respondent that $\cdot \quad 67.$ the Appellant did not serve the Memorandum of Appeal to the Respondent as required by the law failure of which, renders the appeal incompetent. - 68. In regard to the second preliminary objection about extraction of the decree in filing an Appeal to the High Court, it is just good practice and not a mandatory requirement. (See Henry Kasambwa Vs. Yakobo Rutarihamba HCCA No. 10/1989 - The first preliminary objection is therefore sustained and it 69. effectively disposes off the Appeal. - Accordingly, this Appeal is dismissed with costs to the Respondent. 70.

I so order

**LUBEGA FAROUO JUDGE**

DATE: 20<sup>th</sup> November 2023