Jolly Mary Bukambi v John Kahiigwa (HCT-01-CV-LD-CA-0011 of 2012) [2015] UGHC 20 (28 September 2015)

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# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL

## HCT-01-CV-LD-CA-0011 OF 2012

# (ARISING FROM FPT-01-CV-LD-CS-003 OF 2011)

**JOLLY MARY BUKAMBI::::::: :::::APPELLANT**

#### VERSUS

JOHN KAHIIGWA:::::::::::::: **::::RESPONDENT**

## BEFORE HIS LORDSHIP HON. MR. JUSTICE BATEMA N. D. A. IUDGE.

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#### **JUDGMENT**

$\mathbf{1}$

The appellant was dissatisfied with the judgment of His Worship Alex Mushabe, Magistrate Grade 1 delivered on 19/1/2011 at Bundibugyo. The grounds of appeal as contained in the Memorandum of appeal are as follows:

- 1. That the trial magistrate erred in law and fact when he failed to properly evaluate the evidence on the record and came to a wrong decision. - 2. That the Learned trial magistrate erred in law and fact when he decreed the suit land to the Respondent very well knowing that it was bequeathed to the appellant/ defendant by her father one Samuel Bukambi in 1960 and her brother having been in occupation as a caretaker.


- 3. That the learned Trial Magistrate Grade 1 misdirected himself when he failed to consider the minutes of clan members and other documents relating to the suit land. - 4. That the Learned Trial Magistrate's conduct of the locus in auo hearings was improper and thus occasioned $\overline{a}$ miscarriage of justice to the appellant / defendant.

Grounds 1 and 2 were argued together and 3 and 4 separately.

### RESOLUTION OF GROUNDS OF APPEAL

Ground 1 is dismissed because it does not comply with the procedure of framing grounds of appeal as set out under Order 43 of the Civil Procedure Rules.

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This appeal must however succeed on the other 3 grounds resolved together.

The trial Magistrate erred in law and fact when he failed to consider the evidence of the clan members and the mediation teams that had earlier on resolved the matter and declared that the land belongs to Jolly Mary Bukambi.

The Respondent John Kahiigwa claimed that he inherited this land from his father the late George Kahiigwa. That his late father bought this land from his sister Muitira Elizabeth. This claim of $\mathcal{L}$ inheritance is not true because Jolly Mary Bukambi sued George Kahiigwa before he died before the Magistrate Grade II Court at Bundibugyo. The matter was NOT registered formally but sent to the clan for a mediated settlement. His Worship Tiru S. K was asked to witness the mediation. The matter was settled and it $24$ was resolved that the suit land is the property of the plaintiff. The Magistrate Grade 11 filed a return and I take judicial notice of his signature and seal of the court on that resolution filed on $27/08/08$ . $65$

$\overline{2}$

This simplified civil procedure before a Grade II Magistrate, His Worship Titus Tiru S. K, closed the case. That decision was never appealed against. The matter was resolved and it became res judicata much as it was not given a registration number for reasons best known to the magistrate in charge of the station.

I cannot understand why court did not execute its judgment and why it allowed the Respondent to file another suit when his father, whom he claims to have inherited from, had conceded to a mediated decision.

The Grade I Court should not have entertained a matter that was $\cap$ res judicata. The Civil Procedure Act provides in Section 7 that:

"No Court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between 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"

When the respondent filed Civil Suit 003 of 2011, after the death $\overline{2}$ of his father, it was more or less the third time this very matter was being brought before court for resolution. The court again ordered for a mediation. Each party chose a lead mediator. The clan elders and the mediators namely Muganda Ignatius and Maliba Yeremia Murandi conducted a thorough inquiry in the 25 matter. They heard evidence from family members, examined the will of Samuel Bukambi - the father of both Kahiigwa George and Jolly Mary Bukambi, they went through the agreement of alleged purchase by Kahiigwa George from his sister Muitira Elizabeth and came to the same conclusion that the suit land rich with $\mathbb{Q}$ () Murrum belongs to Bukambi Mary Jolly.


$\mathbf{3}$

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This procedure of Alternative Dispute Resolutions, properly directed by the first Magistrate Grade I Court presided over by His Worship Kaweesa, had produced good results which in fact resolved the land dispute.

Unfortunately that Magistrate was transferred and the new Magistrate who took over the trial failed to enter judgment within the terms of the recommendations and resolutions of the mediation

There was no good reason for His Worship Alex Mushabe ignoring the conclusions of the Alternative Dispute Resolution $\overline{(\mathcal{O})}$ Mechanism authorized by Rules1 and 2 of Order X11 and Rules 6 and 7 of Order XV of the Civil Procedure Rules.

In his judgment His Worship Mushabe summarizes very well the testimonies of all witnesses. However his analysis of the evidence and the conclusion are faulty. There were two lines of tracing the inheritance of the suit land.

The first one is that Kahiigwa John claimed that the land originally belonged to his grandfather Samuel Bukambi who gave it to his aunt Muitira Elizabeth. The respondent claims that later in 2004 Muitira Elizabeth sold this land to his father George Kahiigwa. That George Kahiigwa paid Sh. 1.200.000 in installments. John Kahiigwa claims to have inherited from his father George Kahiigwa.

Elizabeth Muitira testified in support of the respondent saying that she is the one who actually sold the land to his father. That she inherited this land from her late father (Samuel Bukambi) when she was still young in 1960. But she did not tell court who kept her land until she became of age. Because their father Samuel is said to have died in 1960, there must have been a heir and caretaker who kept this land, showed her the boundaries and later handed it over to her. This evidence is lacking. Her elder

H COURT FORT PORTAL **THAT THIS IS A TENEL!** DATE: $431$

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brother DAVID BUKAMBI testified as PW4 but spoilt her evidence of inheritance. He told court that their father gave this land to Elizabeth Muitira in writing in 1954 and not 1960. No such document was exhibited in court. It is most likely that the father to the respondent was the caretaker of all this land as heir. We have no evidence of how and when Muitira got into actual possession of her share and on which side of the road.

On the other hand there was evidence that the heir and caretaker handed over to the appellant the land in dispute as her share when she became of age. The Appellant, Jolly Mary Bukambi, told $\mathsf{I} \circlearrowleft$ the trial court that the suit land was bequeathed to her by her late father Samuel Bukambi who passed away in 1960. The land remained in the hands of George Kahiigwa her brother for a long time as the customary heir and caretaker. The appellant was away working as a nurse in several parts of Uganda. She later returned and demanded for her land and George Kahiigwa handed it over to her on $5/11/2007$ during a clan meeting. Muitira never sued the heir for giving away this land she claims was part of her inheritance.

This court has reviewed this evidence on record and appreciated $\varphi$ how the land moved from the late Samuel Bukambi to his daughter Jolly Mary Bukambi and then to the heir and caretaker George Kahiigwa before it came back to the Respondent. It is clear from the record that the land NEVER EVER went to Muitira Elizabeth. Mary Bukambi has never litigated with her sister 26 Muitira Elizabeth who claims to have inherited the same land. The first person Jolly Mary Bukambi litigated with was her brother George Kahiigwa. He was heir to their father and caretaker of all the lands. She first demanded for the land from him by letter and later took the matters to the clan leaders. In a $\gtrsim$ ) clan meeting of 05/11/2007 George Kahiigwa relinquished all the responsibility of taking care of Jolly Bukambi's lands. He handed to her 5 pieces of land including the suit land full of murrum.

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$\mathsf{S}$

The original copies of the minutes of this clan meeting and the resolutions signed by Jolly Mary Bukambi and George Kahiigwa (then Chairman of Bukambi family) were exhibited as exhibit PEX.

Unfortunately, and for reasons best known to the trial Magistrate, they are not reflected within the record of proceedings. I only discovered a copy of the minutes in the correspondences where the record and attachment reads:

**2> to** . "I BAKWILISON YOFESI ACKNOWLEDGES RECIEPT OF ORIGINAL DOCUMENTS ON FILE MARKED PEX DATED THE 5/11/2007 ■RECEIVED IN COURT ON THE 23rd /NOVEMBER/201<sup>1</sup>

PEX RECEIVED ON

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Sign......—-...........

26th/March/2011 BAKWILISON YOFESI"

The minutes had been exhibited properly in court. It was shown that the clan elders resolved the dispute in favour of the appellant and the Respondent's father handed over the Suitland to her. Some fishy game was played to exclude and eliminate this exhibit from the main record of proceedings. And indeed the Respondent argued in appeal that there is no such exhibit tendered at the trial!

Basing on this exhibit PEX court can safely conclude that George Kahiigwa was a mere caretaker of the lands bequeathed to his sister Jolly Mary Bukambi, now Appellant. He handed over this suit land to the appellant before he died. His son cannot come up later to claim it as part of his father's estate. That meeting where he handed over the land to the Appellant was chaired by Bakwirison <sup>B</sup> Yofesi (DW1). For sure Bakwirison could not have forgotten to tender such vital evidence within his possession when sued. <sup>I</sup> believe he tendered the same as PEX.

Exhibit PEX completely destroys the claim that George Kahiigwa bought the suit land from his other sister Elizabeth Muitira in

... REGISTRAR HIGH COHR'I FORT PORTAL <sup>I</sup> CERTIFY T! IAT THIS IS A TRUE O'-T COPY OF THE OR1G1NAJL RECORD

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2004. Both George Kahiigwa and Elizabeth Muitira did not raise this purchase as a defence before the clan leaders in 2007. The evidence of the appellant shows that after handing over this land Mr. George Kahiigwa continued to sell some murrum to a road construction company. The Appellant sued him before the $\mathcal{L}$ Magistrate Grade II court at Bundibugyo. That is when the clan sat in the presence of the Magistrate Grade II S. K. Tiru and George Kahiigwa returned the land to the appellant under an amicable settlement. The court document signed by the Magistrate settling the land dispute is the one I earlier referred to $\int$ $\partial$ as dated 27/08/2008.

When the clan and the court handled this matter and resolved that the land belongs to Jolly Mary Bukambi no clan member came up to say it belonged to Elizabeth Muthira, sister to George Kahiigwa. Not even Elizabeth herself.

Indeed in 2010 the appellant's neighbour Florence Nyangoma (PW3) sued the Appellant in the LCI Court of Butwaka claiming she was extracting marram beyond her boundaries (on the suit land). One of the documents presented to court in the exhibits of DW1 is this correspondence from Butwaka LCI chaired by one $\supset$ Kahiigwa Joel dated 17/07/2011 ruling that the murram was being extracted from Jolly Mary Bukambi's land and that she is the one who delegated Rwabutara Justus and Bakwirison Yofesi to sell the marram. The LCI executive, clan leaders and the Bataka planted pegs to clearly demarcate the boundary between $2-5$ Florence Nyangoma and Jolly Bukambi the defendant in that suit of 2010. Muitira was not the defendant.

Again this goes to show that by 2010 the various LCI and clan courts had resolved this land issue in favour of the Appellant against various claimants including the father of the respondent. I would reject Nyamgoma's evidence when she testified as PW3

FORT PORTAL **ECORD**

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$+6$ Claiming that she did not know the Appellant as the owner of the suit land.

She shamelessly denied having ever sued the Appellant in the LCI court of Butwaka. She could only remember suing Bukwirison but refused to acknowledge that he was an agent of the Appellant. She submitted that she sued him when he trespassed on her land but there is no judgment from that court to the effect that the land was given to D3. Having sued while claming that this land is hers, she could not turn around and testify that the land belongs to Muitira Elizabeth, another neighbor.

, Gave Her changing position is malice actuated by her loss of the land case before the LCI court. Shame. The trial Magistrate at Bundibugyo should have treated her evidence with a lot of caution and suspicion. It was wrong for the trial Magistrate to rely on Nyangoma's evidence as an immediate neighbour who 15 had allegedly known Muitira Elizabeth to be the owner of the suit land for a long time. But as I have already said the trial magistrate struck off or hid exhibit PEX from the record and did not rely on the same.

#### **EVIDENCE OF PURCHASE**

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The trial Magistrate relied on Exhibit PEI, the Sale agreement showing that Elizabeth Muitira sold the suit land to George Kahiigwa, father of the Respondent. Muitira Elizabeth testified as PW2 and at the locus in quo she showed court all the land on $\Delta$ both sides of the road as her land she had sold. The Appellant on the other hand showed court only the upper side across the road as the suit land separated from PW2 by the main road to Bundibugyo. On record is the evidence of clan meetings and LC courts that knew better this land in dispute. Even the mediators $\gtrsim$ *O* appointed by the parties themselves resolved that the land across the road is what belongs to the Appellant. They rejected the purchase agreement. If the trial magistrate had evaluated this

> RTIFY THAT THIS IS A TRUE RECORD OF THE ORIGINA $partedsllb$

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evidence he would not have simply believed the sale agreement as Bible truth. <sup>I</sup> would reject the sale agreement too for similar reasons:

- 1. This was land inherited from the late Sammuel Bukambi. The elderly brothers to the Appellant and the Respondent's father all confirm this land was bequeathed to the Appellant. The respondent's father returned the land to the appellant on two occasions: - a) Before the clan on 5/11/2007

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- b) Before the Grade II court on 28/8/2008. **10** - 2. Nowhere on those two occasions did George Kahiigwa adduce evidence that he had bought the land from Elizabeth Muitira. - 3. None of the elders and old brothers to the two sisters Elizabeth Muitira and Jolly Mary Bukambi witnessed the sale agreement except DAVID BUKAMBI. It is suspect for one sister - Elizabeth - to sell this land which was in dispute and no clan leader or sibling is called to witness the transaction. - 4. No Local Council committee members witnessed the transaction. The so-called seller and purchaser probably feared to involve the LCs because they knew the land was in dispute and the LCs had already ruled that it belonged to the Appellant. - 5. The parts of the agreement which acknowledge receipt of part- payments after the year 2004 from Mr. George Kahiigwa are clearly false because by then Mr. George Kahiigwa was dead. He had died in 2004. It could only be his ghost malting payments of SH. 150,000/= on

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21/01/2005, Sh. 500,000/= on 8/2/2008 and Sh. 1,190,000/= on 20/2/2008 and SH. 10,000/= on 20/2/2011.

# **Location and Boundaries of the Suit Land.**

The purchase agreement gives false boundaries. It covers land on both sides of the road. But as <sup>I</sup> have already pointed out the clan elders and all the defence witnesses described the suit land as that piece of land on the upper side of the Bundibugyp - Kyamukube Road where Murrum had been extracted. At the locus in qou Kahiigwa concentrated on showing court cocoa trees and engote trees standing on the land. This was on the lower side £ 0 of the road. That lower part is what clearly belongs to Kahiigwa John. Certainly there could not be standing cocoa trees or other crops in the suit land where Murrum had been extracted. The Bundibugyo-Kyamukube Road is a major boundary between .the respondent and the appellant although the trial magistrate laterj inserted in the proceedings at locus that it cuts across Kahiigwars land. The trial magistrate misdirected himself to rely on evidence of cocoa trees, engote trees and growing crops seen at the lower side to believe that John Kahiigwa or Muitira owned the suit land across the road. <sup>9</sup>

Having re-evaluated the evidence on record, <sup>I</sup> would conclude 6<sup>A</sup> that the trial magistrate did not properly evaluate the evidence on record and came to a wrong decision. There was overwhelming evidence proving that Samuel Bukambi had bequeathed the suit land to the Appellant Jolly Mary Bukambi. George Kahiigwa, the father of the Respondent, was only heir and caretaker of this piece of land for his sister - the appellant. The respondent inherited air. Ground 2 of the appeal would succeed.

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**3)**

Ground 3 of appeal is allowed. The trial Magistrate Grade 1 erred in law and fact when he failed to consider the minutes and resolutions of clan members and the LCs and other documents relating to efforts undertaken to settle the matter amicably outside court. Alternative Dispute Resolution is a legal procedure $\mathcal{L}$ known to our law and the trial Magistrate should not have ignored these minutes and resolutions that rendered the matters in issue fully or substantially settled between Mary Jolly Bukambi and George Kahiigwa from whom John Kahiigwa claims to have inherited title to the suit land.

Ground 4 relating to the procedure of conducting the trial at the locus is not proved. I think the trial Magistrate properly conducted the trial. I would dismiss this ground of appeal.

$\mathfrak{S} \mathsf{I}$

However, the final outcome of the whole trial was a real miscarriage of justice. The suit should have been dismissed with $L\mathcal{L}$ costs. The trial court erred in law and fact when it decreed the suit land to be property of the Respondent. He has illegally continued to mine and sell murrum from the site as a result of this wrong judgment.

Since the Respondent continued to mine and sell marrum for $\mathcal{L}$ commercial purposes with impunity even after court had stayed execution, he has not only caused great inconvenience to the Appellant but has also caused her a lot of mental torture. she has moved up and down bringing complaints to the inspector of Courts, LCs, the Court Registrars and the Judges hearing the $\partial$ appeal.

I accordingly allow the appeal and set aside the judgment and orders of the Magistrate Grade 1 at Bundibugyo with costs in this court and the court below.


# Remedies Available to the Parties.

- a. A declaration is made that the suit land belongs to the Appellant Jolly Mary Bukambi. - b. A permanent injunction is issued against the Respondent John Kahiigwa and his successors in title from claiming the suit land or interfering with the Appellant's rights on this land in any manner. - c. I award the Appellant general damages of Sh. 17,000,000/= to cover all the inconveniences and suffering. I so order in the interest of justice.

**l£>**

Batema N. D. A Judge.

# Orders

- 1. The Respondent John Kahiigwa and his agents be evicted from the suit land forthwith. - *IS* 2. It is on record that the trial Magistrate took a long time to transmit the case file from Bundibugyo to the High Court for no good reason. It took my intervention as a resident Judge to get the record brought to Fort Portal. In addition, we have discovered alterations and deliberate exclusion of 9-C some evidence and exhibits from the certified record of proceedings when they were actually adduced in court. One cannot rule out corruption or undue influence on the part of this magistrate. This is unethical judicial conduct we must condemn in the strongest terms possible. It destroys the

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integrity and moral authority of this particular magistrate continuing to sit on the bench to administer injustice contrary to the judicial oath he took. His conduct has eroded public confidence in the judiciary and has greatly tarnished the image of the Judiciary. This judgment shall be brought to the attention of the Hon the Principal Judge and the Chief Registrar for closer supervision and/or disciplinary action against the magistrate.

Judge. Batema N. D. A

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28-09-2015

Appellant in court

**IS <sup>5</sup>** Mr. Ahabwe for Respondent

Ampaire Precious - court clerk.

Judgment delivered in open court. Right of Appeal explained.

**13** Judge. 28/09/2015. Batema N. D. A **A \*** *'UR<'AI I*

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## **THE REPUBLIC OF UGANDA JN THE HIGH COURT OF UGANDA AT FORT PORTAL**

## **HCT-01 -CV-LD-CA-001<sup>1</sup> OF 2012 (Arising from FPT-01-CV-LD-CS-003 OF 2011)**

#### **APPELLANT JOHN KAHIIGWA RESPONDENT JOLLY MARY BUKAMBI =VERSUS=**

### **DECREE**

## **(Under Order XXI rr.6 & 7 C. P. R as Amended)**

This Appeal coming on this 28th day of September,2015 for final disposal, before his **Lordship, Hon. Justice BATEMA N. D. A Judge,** in the present of the Appellant, and **Mr. Ahabwe** Counsel for the Respondent, it Is hereby Order and Decreed that; Judgment be and it is hereby entered for the Appellant as follows:-

- a. That the suit land belongs to the Appellant, one Jolly Mary Bukambi. - b. A permanent injunction is issued against the respondent John Kahigwa and his successors in title from claiming the suit land or interfering with the Appellant's rights on this land in any manner. - c. The Appellant is awarded general damages of She. 17,000,000/= to cover all the inconveniences and suffering. - d. It is further ordered that the Respondent John Kahigwa and his agents be evicted from the suit land forthwith.

Court this **DEPUTY REGISTRARf**vw. <sup>h</sup>1! Given under my hand and the Seal of the fevv.......... day of..,&<h 2015.

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