Isingoma v Balinda and Another (CIVIL APPEAL NO.0052 OF 2023) [2025] UGHC 232 (3 February 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **CIVIL APPEAL NO.0052 OF 2023 (Arising from C. S No.086 of 2016)**

**ISINGOMA NYANSIO ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

### **VERSUS**

#### **1. BALINDA LAWRENCE**

### **2. TIZISIBWA IBRAHIM BIRALISI :::::::::::::::::::::::::::::::::::::: RESPONDENTS**

*[Appeal from the Judgment and decree of the Chief Magistrate's court of Hoima in C. S No. No.086 of 2016 dated 18/8/2023]*

### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

## **JUDGMENT**

## **Background**

- [1] The Appellant/plaintiff instituted **Civil Suit No.86 of 2016** in the court below seeking inter alia, a declaration that the Defendants are trespassers on the unregistered suit land measuring about 100 acres in **Mugabi village, Buhimba sub county, Hoima District,** an eviction order and a permanent injunction restraining the Respondents their agents and all those claiming under then from trespassing on his land. - [2] It was the Appellant/plaintiff's case that he is the owner of the unregistered suit land of which he has been in occupation since the late 1980's. That prior to the Respondents' trespass on the land, he had used the land for farming un interrupted and on various instances, licensed the 1 st Defendant and other people to do farming on parts of the land. That however, in 2016, the Respondents forcefully entered onto portions of land where they now cultivate and graze animals.

- [3] The Appellant/plaintiff contended that the Respondents' illegal occupation of the land denied him beneficial use of the portion trespassed upon and he has suffered economic loss which he holds the Respondents liable in damages. - [4] In their joint Written statement of defence, the Respondents denied the Appellant's claim and contended that the suit land belongs to the 2nd Respondent/defendant which he purchased adjacent to each other in 2 phases:

a) On 18/3/1997, he purchased one piece from **Irumba Yovani.**

b) On 22/2/1998, he purchased another piece from **Baguma Alikira.**

Though the 1st purchase agreement of the piece of land purchased from **Irumba Yovani** does not locate the land, since the two pieces of land are adjacent to each other, the implication is that both of them are located in **Mugabi village, Musajjamukuru East, Buhimba Sub county**, the address as reflected on the 2nd purchase agreement of the piece of land from **Baguma Alikira**.

- [5] Lastly, the Respondents contended that the 1st Respondent is using the suit land with the authority from the 2nd Respondent, the owner of the land. That the 2nd Respondent sued a one **John Byenkya** in **Civil Suit No.67 of 2010** over the suit land and the Appellant testified as defence witness (DW3) where he stated that the suit land belonged to **Byenkya John** but the suit was determined in favour of the 2nd defendant. He concluded that as a result, the Appellant is estopped from claiming ownership of the suit land. - [6] Upon the trial Chief Magistrate evaluating the evidence that was before him, he found that whereas the Appellant claimed that the land in dispute was different from the one **Byenkya John** claimed in **C. S No.67 of 2010** where he, the Appellant testified in favour of the said **Byenkya John** at locus, he failed to show court that piece of land he claimed belonged to **John Byenkya.** He only showed court one piece as the one belonging to him. As a result, the trial Magistrate concluded that the land in dispute in **C. S No.67 of 2010** was the same land in dispute in this case and therefore, the Appellant could not be permitted to turn around and claim it when he

in **C. S No.67/2010** testified it belonged to **Byenkya John**. The Appellant's suit was accordingly dismissed with costs and the 2nd Respondent was declared the owner of the land hence not a trespasser.

- [7] The Appellant was dissatisfied with the Judgment and orders of the trial Chief Magistrate and filed the instant appeal on the following grounds: - *1. The trial Magistrate erred in law and fact when he held that the suit land does not belong to the Appellant and that the Respondents/defendants are not trespassers.* - *2. The trial Magistrate erred in law and fact in evaluating the evidence on record thus arriving to a conclusion that the suit land which was in dispute in C. S No.67 of 2010 was the same in dispute in C. S No.86 of 2016.* - *3. The trial Magistrate erred in law and fact in evaluating the evidence on record thus arriving to a conclusion that the Respondents/defendants are the rightful owners of the suit land.*

# **Counsel legal representation**

[8] The Appellant was represented by the firm of **M/s Nyanzi Kiboneka & Mbabazi Advocates, Kampala** while the Respondents were represented by **M/s Mukiibi & Kyeyune Advocates, Kampala.** Both firms filed their respective submissions for consideration in the determination of this appeal.

## **Duty of the 1st Appellate court**

- [9] It is settled law that the duty of a first appellate court as the instant one is to subject the entire evidence on record to an exhaustive scrutiny and to re-evaluate the evidence as adduced and make its own conclusions while bearing in mind the fact that the court never observed the witnesses under cross examination so as to test their veracity, See **Sanyu Lwanga Musoke Vs Galiwango, SCCA No.48 of 1995.** - [10] Being guided by the above, this court is to bear in mind while considering this appeal its duty to rehear the case and reconsider all the materials that

were before the trial court by subjecting the evidence as a whole to scrutiny and make up its own mind.

# **Preliminary objection Failure by the Appellant to serve the Respondents record of proceedings.**

- [11] The counsel for the Respondents raised an objection to the effect that the learned counsel for the Appellant failed to and did not avail or serve the Respondents with the record of proceedings though the record was ready and duly certified by the court by the 29th day of January, 2024. That indeed, the evidence analysed by the Appellant's counsel in his written submissions is not premised on the evidence as recorded by the trial court and certified as the record of the proceedings of the court. Counsel did not however cite any law or regulation that was contravened by the Appellant. - [12] Counsel however contended that having failed to be availed with the record of proceedings by counsel for the Appellant, he accessed a copy and signed for it and consequently, he was able to file Written submission for the Respondents upon careful perusal of the record of proceedings. - [13] In my view, I find that since counsel was duly served with a copy of the memorandum of Appeal on 28/9/2003 and obtained the certified record of proceedings on his own initiative and accordingly filed his respective submissions upon receipt of the Appellant's submissions, any omissions or default on part of counsel for the Appellant is found not to have occasioned any miscarriage of justice to the Respondents. Besides, if it had transpired during the hearing of the appeal that the Respondents' counsel had not been served with the record of the proceedings, in exercise of its inherent powers, this court would have directed that the record of the proceedings be served upon the Respondents accordingly. - [14] Counsel for the Respondents' alleged failure to rely on the Record of proceedings in his submissions does not equally prejudice the Appellant. Counsel was at liberty to pursue what he thought and believed was in the best interests of his clients, the Respondents. However, upon perusal of

submissions filed by counsel for the Respondents, I find that they do reflect the record of proceedings.

[15] I note that though unlike in the Court of Appeal under the **Judicature Court of Appeal Rules, S. I 13-10,** under **R.88** which provides for service of memorandum and record of appeal, in our Civil Procedure Rules, there is no provision as regards service of the Record of appeal. Under **O.43 r.10(3) CPR,** however, provides thus:

*"Either party may apply in writing to the court from whose decree the appeal is preferred, specifying any of the papers of the court of which he or she requires copies to be made; and copies shall be made at the expense of, and given to, the applicant on payment of the requisite charges."*

In the present case, the Respondents' counsel upon being served with the memorandum of appeal, **O.43 r.10(3) CPR** was therefore also available to him to enable the Respondents obtain or access the record of proceedings. It is however a desirable common practice that the Record of Appeal is served upon the opposite party for progress of the appeal. In view of the foregoing, in the premises, I find the preliminary objection without any merit and it is accordingly overruled.

## **Grounds of Appeal**

[16] As rightly submitted by counsel for the Appellant, the 3 grounds of appeal appear to revolve around how the trial Magistrate evaluated the evidence before him. As a result, the 3 grounds of appeal shall be considered together.

## **Grounds 1,2 & 3: Evaluation of evidence on the issue of ownership of the suit land.**

[17] I commence the evaluation of evidence in this appeal by reproducing the vital parts of the trial Magistrate when decreeing the suit land to the 2 nd Respondent, **pages 2 & 3 of the Judgment**:

*"On the issue of whether the plaintiff [Appellant] is the owner of the suit land, the plaintiff [Appellant] who testified as PW1* *told court that the suit land was given to him by elders (Bataka). On the other hand, he testified in C. S No.69/2010 [read 67/2010) where D2 sued Byenkya John seeking declaration among other that the suit land belongs to him. In that case the plaintiff [Appellant] testified as D3 [read DW3]. According to the judgment in Civil Suit No.67/2010 he told court that the land in dispute belonged to Byenkya John. The judgment was admitted as Exhibit and is marked D. Exh.9. On the Witness statement of D2 the said judgment is annexture Ti8.*

*According [to] the plaintiff's evidence, the land that was in dispute in that case was at Mugabi L. C1 Kigurukarugo which he says is different from land in dispute in this case. He says that the land in dispute in this case is at Mugabi L. C1 Rwebituro. On the visit to locus the plaintiff failed to show court the two pieces of land. He only showed court one piece of land which he said is at mugabi L. C1. He failed to show court the land which was in dispute between D2 and Byenkya John. I am therefore inclined to conclude that the land that was in dispute in that case is same land in dispute in this case.*

*Since the plaintiff told court that the land in dispute in C. S No.69/2010 [read C. S No.67/2010] which is the same land in dispute in this case belongs to Byenkya John, he cannot turn around to claim that the same land belongs to him. It is on that basis that I am inclined to conclude that the suit land does not belong to the plaintiff. On the other hand it belongs to D2 who purchased the same from Irumba in 1997 and Baguma Fred Alikira in 1998."*

[18] From the above excerpt of the trial Magistrate's judgment, the issue is whether the trial Magistrate properly evaluated the evidence before him to find that the suit land was the land in dispute in **C. S No.67 of 2010** so as for the Appellant who had testified in **C. S No.67 of 2010** that it belonged to **Byenka John** not to be permitted in this case to claim that it belongs to him.

### [19] **Evidence of the Appellant/plaintiff**

- a) That he was the owner of the unregistered land measuring about 100 acres in Mugabi village, Buhimba Sub county, Hoima District having settled on the said land since 1980s. - b) That at the time of settling on the suit land, the neighbours to that land were **Byenkya John** in the East, **Kafu river** both currently still there and in the East was **Bernard Kanjogere** who later sold land to a one **Edgar Isingoma.** - c) That it is true, the 2nd defendant [2nd Respondent] sued a one **Byenkya John** in C. S No.69 of 2010 [read C. S No.67 of 2010] in the magistrate's court of Hoima and he was a witness in the said suit but the subject land in that suit was different from the suit land in the instant case. That the suit land in C. S No.069 [read C. S No.07/2010] is located in **Mugabi L. C1 Kigurukarugo** yet the one in this instant case is located in **Mugabi L. C1 Rwebituuro** and both properties are separated by a hill called Mugabi Hill. - [20] During cross examination, the Appellant explained that **Rwebituuro** where the suit land is located and **Kigurukarugo** where the subject land in **C. S No.67/2010** between the 2nd Respondent/D2 and **Byenkya John** is located, both are villages in Mugabi L. C1. The Appellant's evidence was supported and corroborated by the evidence of **Birungi Kaahwa Silvester** (PW3), the former area L. C1 chairperson from 1997 – 2018 who stated that the 2nd Respondent/defendant purchased land in Mugabi L. C1 in **Kigurukarugo** (not in Rwebituuro) and witnessed the agreement **(P. Exh.5)** between the 2nd Respondent and **Baguma Alikira**. The agreement however omitted to reflect that the subject land is located in Mugabi L. C1, Kigurukarugo village. - [21] The 2nd Respondent /defendant on the other hand adduced the following evidence: - a) That the suit land which the Plaintiff [Appellant] is claiming ownership does not belong to him but it is for the 2nd Respondent having purchased the same in 2 parts from **Irumba Yovani** in 1997 and **Mr. Baguma Fred Alikira** in 1998 (D. Exh. Ti1 & Ti 2(a)/P. Exh.5).

- b) That the suit land is located in Mugabi L. C1, Musajjamukuru East, Buhimba Sub county, Kikuube district, boarded by **R. Kafu** to the East, **Byenkya John** and **Kanjogere Bernard** to the north and **Wita Stephen** and **James** to the West. - c) That he successfully disputed this land with **Byenkya John** before the L. CIII, the Chief Magistrate's court (vide C. S No.67 of 2010) and High court vide Civil Appeal No.55 of 2008 (D. Exhs. T14, T15 & T16) where he was declared the owner of the suit land. - [22] During cross examination, the 2nd Respondent/defendant denied knowledge of the villages in the names of **Rwebituuro** and **Kigurakarugo.** However, his witness **Kyaligonza Sepiria** (DW3), the current L. C1 chairperson of the area, from 2018 testified acknowledging the existence of "Kigurakarugo" village which is within Mugabi L. C1 but he also denied knowledge of "Rwebituuro" village. He however never witnessed any of the purchase agreements of the 2nd Respondent/defendant. During reexamination, he stated that he was not present when D2 bought the suit land in 1998 but in the same breath, he stated that he was there but because there were many people, all could not sign on the agreement, thus discrediting his demeanor. - [23] I note that though the current area L. C1 chairperson (DW3) acknowledged the existence of "Kigurukarugo" village, his vice chairperson **Byarufu** (DW4) however denied knowledge of its existence including "Rwebituuro" during cross examination hence **DW3** and **DW4** as L. C leaders in the area whom court would have relied on as regards the finding on the existence of the 2 villages became unreliable, their respective evidence contradicting each other on this aspect discredited their evidence. At **page 5** of the judgment in **C. S No.67 of 2010,** it would appear that the suit land therein which the 2nd Respondent disputed with **Byenkya John** is indeed in **Kigurukarugo** (near Mugabi Hill) thus supporting the Appellant's contention. The issue that remains is whether Rwebituuro village which the Appellant claims is the location of the suit land in the present appeal, exists.

- [24] In this suit vide Chief Magistrate's court **C. S No.67 of 2010**, i.e in the pleadings, the 2nd Respondent/defendant however described the suit land that he purchased from **Irumba Yovani** and **Baguma Alikira** as land located at **Mugabi village, Rwemparaki-Ruhungu parish, Buhimba sub county in Hoima District** and not as Mugabi village, Musajjamukuru East, Buhimba Sub county as per his pleadings and evidence in the trial court or as being in Kigurukarugo which denies knowledge of. - [25] Counsel for the Respondents attributed the variations of the names of the parishes and District where the 2nd Respondent's land is located to the creation of new districts in 2018 whereby Kikuube district was curved out of Hoima District and that therefore, it was inevitable that the parishes also had to change. Counsel's explanation may appear plausible but there is no explanation why these changes in the administrative units were not put to **Birungi Kaahwa Silvester** (PW3) who had been the area L. C1 chairperson from 1997 – 2018 during cross examination. 2ndly, when Kikuube was allegedly curved out of Hoima and therefore the explanation for change of parishes in 2018, the pleadings in **C. S No.67 of 2020** had already been filed implying that the alleged changes had not occurred. - [26] The question that remains un answered is why by 22/2/1998 as per **D. Exh. Ti2(a),** the suit land was located in **Musajjamukuru East parish, Hoima District** and then by 2010 when **C. S No.67 of 2010** was instituted by the 2nd Respondent, the parish changed to **Rwemparaki – Ruhungu, Hoima District** and in 2019, when the parties were testifying in the present suit, the location again changed to **Musajjamukuru East, Kikuube district.** A plausible explanation of the above should have come from **PW3, DW3** and **DW4** who are the local officials of the area. - [27] As regards evidence at locus, the Judgment reflect the trial Magistrate's finding thus:

*"According [to] the plaintiff's evidence, the land that was in dispute in that case (C. S No.67/2010) was at Mugabi L. C1 Kigurukarugo….the land in dispute in this case is at Mugabi L. C1 Rwebituro. On the visit to locus the plaintiff failed to show court the two pieces of land…. It is on that basis that*

*I am inclined to conclude that the suit land does not belong to the plaintiff."*

However, a perusal of the court record of the locus proceedings, it became clear from the confirmation of **Kyaligonza Cyprian** (DW3) who was the current Area L. C1 Chairperson that Kigurakarugo village in Mugabi L. C1 exists. The locus in quo record however does not show that the Appellant was tasked to distinguish the 2 pieces of land i.e the suit land and the subject in **C. S No.67/2010** and that he failed to do so. The Appellant categorically stated that the suit land is in **Mugabi L. C1, Rwebituuro.**

- [28] As a result of the above, I find that the basis of decreeing the suit land to the 2nd Respondent without ascertaining it and its location yet the 2nd Respondent had categorically stated that the suit land is the same land which was subject of **C. S No.67/2010** but variously described it as being in Musajjamukuru East and or Rwemparaki-Ruhunga Parish, Buhimba sub county, amounted to a mistrial and thus occasioned a miscarriage of justice to the Appellant. - [29] In conclusion, I find that the Respondents were not able to place the land the 2nd Respondent claimed in any definite parish so as for court to be able to conclude that it was the subject of **C. S No.67 of 2010.** The trial Chief Magistrate ought to have ascertained the definite location of the suit land vis a vis that in **C. S No.67 /2010** in Mugabi L. C1. As a result, the judgment and decree of the lower court is set aside with orders of a retrial of the suit before the Chief Magistrate's court under the foregoing directions. No order as to costs.

Dated at Hoima this **3 rd day of February, 2025.**

> **………………………………………… Byaruhanga Jesse Rugyema JUDGE**