Hanns Besigye v Charles Ndyahikayo’s Administrators (Civil Appeal No. 0007 of 2013) [2024] UGCA 343 (12 December 2024)

# **THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA**

*[Coram: Muzamiru M. Kibeedi, Irene Mulyagonja and Dr. Asa Mugenyi, JJA]*

## **CIVIL APPEAL NO. 0007 OF 2013**

*(Arising from Civil Appeal No. 044 of 2008 & Oiginal Rukungiri Civil Suit No. 43 of 2008)*

## **HANNS BESIGYE APPELLANT**

## **VERSUS**

## **CHARLES NDYAHIKAYO'<sup>S</sup> ADMINISTRATORS RESPONDENTS**

*[Appeal from the Judgment of the High Court of Uganda at Kabale (Kwesiga, J) dated the 21st of February 2012 in High Court Civil Appeal No. 044 of 2010]*

## **JUDGMENT OF THE COURT**

## **Introduction**

[1] This is a second appeal arising from the judgment of Hon. Justice J. W. Kwesiga dated the 21st of February 2012 in Civil Appeal No. 44 of 2010 of the High Court of Uganda at Kabale.

#### **Background facts**

2008. [2] The background facts to this appeal as established by the lower Courts are that Charles Ndyahikayo (now deceased) was an Uncle of the Appellant. In 2008, the Appellant sued him in the Chief Magistrate's Court at Rukungiri claiming ownership of a piece of unregistered land in Nyakatare, Kanungu Town Council, vide: RUK-00-CS-

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- [3] It was the Appellant's case before the trial Court that he purchased the suit land from his other uncle, Bakamuhata John (PW1), on 30th October 1998 and that the Respondent ratified the sale. He, as such, sought a declaratory order as to the ownership of the suit land and an injunction to restrain the deceased from using the suit land or laying any claim to it. - [4-] The deceased denied the claims by the Appellant and contended that the suit land belonged to him and was different from the piece of land that the Appellant bought from PW1, the subject matter of the Appellant's exhibits.

#### **Decision of the trial Court**

*0*

- [5] After a full trial, the Chief Magistrate found that the deceased committed no trespass because the suit land belonged to him. She accordingly dismissed the Appellant's suit with costs to the deceased. - [6] The Court further ordered PW1 Bakamuhata to open the boundary marks of the suit land for both the Appellant and the Respondent and to restore possession of that part hitherto claimed by the Appellant to the deceased.

## **First appeal to the High Court**

- **7]** Dissatisfied, the Appellant appealed to the High Court of Uganda sitting at Kabale on two grounds of Appeal, which were basically one, namely: *"That the trial Chief Magistrate erred in law and fact when she failed to evaluate the evidence as a whole and reached a wrong decision that the Defendant was not a trespasser on the suit land."* - [8] On the 21st of February 2012, the High Court presided over by Hon. Mr. Justice J. W. Kwesiga dismissed the appeal with costs against the Appellant - both in the High Court and the Chief Magistrate's Court. The Court further confirmed that the suit land

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belongs to the deceased and ordered that his possession of the land be restored after Bakamuhata, under supervision of LC III Chairman and police, has opened the relevant boundary.

## **Second Appeal to the Court of Appeal**

- [9] The Appellant was, once again, dissatisfied and he filed a second appeal to this Court on the following grounds: - - *1) That the learned Appellate Judge erred in law when he failed to re-evaluate the evidence on record and thus came to a wrong conclusion.* - *2) The Learned Appellate Judge erred in law and fact when he erroneously upheld the Judgment of the trial Magistrate which was based on wrong principles of law.* - [W] During the pendency of the appeal before this Court, the deceased passed on and Letters of Administration to his estate were granted to Tigeita Shallon (Widow) and Atuheire Raymond (Son) on the 08th November 2022 under Administration Cause No. 27 of 2022 of the High Court of Uganda at Rukungiri. - [11] Pursuant to the Orders made by this Court in *Civil Application No. 635 of 2024 Hanns Besigye Vs Tigeita Shallon and Atuheire Raymond* the deceased was substituted by his said legal representatives.

#### Representations

- [12] At the hearing of this Appeal, Mr. Akleo Mugisha represented the Appellant, while Reverend Ezra Bikangiso appeared for the Respondent. - [13] Leave was granted to the parties to adopt their Written Submissions which were already on the Court record as their respective legal arguments in the matter.

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### Analysis

[14] We have carefully considered the grounds of appeal as framed by the Appellant. Ground one is couched as follows:

*That the learned Appellate Judge erred in law when he failed to re-evaluate the evidence on record and thus came to a wrong conclusion.*

[15] There is no doubt in our minds that ground one, as framed, offends the provisions of Rule 86(1) of the Rules of this Court in so far as it is very general and failed to point out the specify error in the Court's judgment complained about. Rule 86(1) is couched thus:

#### *"86. Contents of memorandum of appeal*

- *1) 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 wrongfully decided, and the nature of the order which it is proposed to ask the Court to make..."* - [16] This Court has had occasion to consider grounds framed in the style similar to that adopted by the Appellant in ground one in the instant matter. In *Celtel Uganda limited Vs Karungi Susan CACA No.0073 of 2013,* the impugned ground was framed as follows:

*"The Learned trial Judge erred in law and fact when they failed to evaluate the evidence on record and thereby arrived at a wrong conclusion."*

*I* Hon. Justice Remmy Kasule, JA had no difficulty striking it out after citing with approval *Ranchobhai Shivabhai Patel Ltd and Anor v Henry Wambuga & anor, CA No.06 of 2017,* where a similar ground was found to be *"...too general and does not specify in what way and in which specific areas the learned Justices of appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learnedjustices of appeal...* "

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- [17] The above holding is still a good statement of the law. - [18] We have also considered the second ground of appeal which was framed thus:

*"The Learned Appellate Judge erred In law and fact when he erroneously upheld the Judgment of the trial Magistrate which was based on wrong principles of law" [Emphasis added]*

- [19] The propriety of the above ground of appeal can best be appreciated when it is considered in the context of the jurisdiction of this Court in second appeals which is restricted to the matters laid out under Section 72 (1) of the Civil Procedure Act, Cap. 282 of the 2023 Revised Edition of the Laws of Uganda (Formerly Cap. 71), that is, matters of law as opposed to matters of fact, save for exceptional circumstances where matters of fact may be considered. See: *Banco Arab Espanol* Vs. *Bank of Uqanda, Supreme Court Civil Appeal No. 8 of 1998; Elizabeth Nalumansi Wamala Vs. Jollv Kasande & Othe (2017) UGSC 21;* and *Mubingwa Zepher* Vs *Thembo David Kabau, Civil Appeal No 190 of 2019.* - [20] In *Mitwalo Magyengo* Vs. *Medadi Mutyaba, SCCA 11/96 (25.03.98),* the Supreme Court held that where in a second appeal in a civil cause, the grounds of appeal are not of law but are of findings of fact or mixed law and fact, such grounds are wrong in law and are either abandoned by the Appellant or are struck out by Court; See also^^p the Kenya case of *Maina* Vs *Mugiria [1983] KLR 78.* - [21] The question we have had to consider in the matter before us is whether on account of the foregoing reasons, we should outrightly strike out the appeal.- - [22] We are alive to the fact that the subject matter of this second appeal is land which, historically, has been a very sensitive and emotive matter in Uganda, and thereby enjoins this Court to exercise maximum restraint not to dismiss such matters without

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consideration of the merits of appeal. We are also mindful of the fact that the litigants are blood relatives and neighbours. As already stated, the deceased was the Appellant's uncle. We are nonetheless satisfied that the propriety of the grounds of appeal is inextricably intertwined with the issue of jurisdiction of this Court and its legal competence to adjudicate upon a matter before it. As such, our jurisdiction being a matter prescribed by statute, we cannot vest in ourselves what has not been vested in us by statute.

- [23] Lastly, we have considered the injustice likely to be occasioned from dismissal of the appeal without consideration of the dispute on its merits. We are satisfied that in this particular case, none will be occasioned. This is because from our review of the Record of Appeal it was very evident that the 1st Appellate Court went into very great depth in re-evaluating the evidence in respect of the sole contentious issue before it, namely: the ownership of the suit land. It re-evaluated the evidence of PW1 who it termed as the *"principal witness in this case because both the Appellant and the Respondent derive their claim of ownership from him...and ..[was] the most appropriate person to testify on its movement from him to any of the parties."* As already stated, PW1 was a brother of the deceased Respondent and also an uncle of the Appellant. - [24] The first Appellate Court also considered the evidence the other witnesses on the Court record and confirmed the trial Court's finding that the suit land belonged to the deceased. In those circumstances where there was evidence to support the concurrent decision of the first Appellate Court, this Court as a second Appellate is precluded from questioning the findings of fact of the trial Court, though it may think it possible, or even probable, that it would not have itself come to the same conclusion. This Court can only interfere where it considers that there was no evidence to support

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the finding of fact, this being a question of law. See: *Kifumante Henry* Vs *Uganda SCCA No. 10 of 1997;* **and** *R. vs. Hassan bin Said (1942) 9 E. A. C. A. 62.*

[25] The upshot of the above is that the appeal must fail.

#### [26] Disposition

- 1) The appeal is dismissed with costs. - 2) The decision and orders of the first Appellate Court are hereby upheld.

#### **We so Order**

Signed, delivered and dated at Mbarara thisl2th day of December 2024.

**MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal**

**IRENE MULYAGON^**

**Justice of Appear**

**DRrASA-MUGENYI Justice of Appeal**

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