Kaahwa and Another v Taragaboine and 4 Others (Civil Appeal 36 of 2024) [2024] UGHC 924 (13 September 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT HOIMA

#### CIVIL APPEAL NO. 36 OF 2024

## (Formerly, MSD C. S No.031 of 2017)

(Arising from Hoima Chief Magistrate's Court, Land Claim No.006 of 2006)

#### 1. EDWARD KAAHWA

2. TALYEBWA VICENT :::::::::::::::::::::::::::::::::::: **APPELLANTS**

#### **VERSUS**

- 1. TARAGABOINE LAWRENCE - 2. DAUDI ENOBI - 3. JOSEPH MBAHEREKYO - 4. TIBAMANYA FRANCIS - 5. ATAHA KIBIRA ::::::::::::::::::::::::::::::::::::

[An appeal from the judgment and orders of H/W Aber Irene, Magistrate Grade 1, Hoima Chief Magistrate's Court in C. S No.66 of 2006 delivered on 31/5/2017]

Before: Hon. Justice Byaruhanga Jesse Rugyema

## JUDGMENT

# **Background**

- In their statement of claim filed before the Hoima District Tribunal at Hoima $\left|1\right|$ on 13/11/2006, the Appellants claimed against the Respondents for the following orders; - a) A declaration that the suit land belongs to the Appellants/ claimants. - b) An order directing the Respondents/defendants to stop all developments i.e grazing cows on the suit land and selling of the disputed land. - c) An eviction order and costs of the suit. - It was the Appellants' case that they acquired the suit land from their late $[2]$ father a one Mikairi Bahandagana after his demise in 1966 upon which they took possession thereof by looking after their late father's tea plantation,

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growing of food crops to wit; millet and ground nuts and building a permanent house thereon.

- The Appellants contended that after the death of their father, the $1^{st}$ and $4^{th}$ $[3]$ Respondents chased them away and directed them to go and use their father's land situate in Bujaiga L. C1, Bugambe sub county, Hoima District, the disputed land but sometime in 2005, the Respondent's without any colour of right trespassed on their land by grazing their cattle or selling it without their consent. - In their joint Written Statement of Defence (WSD), the Respondents denied the $[4]$ Appellants' claims. They contended that the Appellants are grandsons of the late Antonio [Kiiza], the Respondents' father and that the Appellants' father, Bahandagana had a share on their father's land. That the Respondents have neither grabbed, encroached nor chased away the Appellants from that land. - The trial Magistrate on her part found that the suit land originally belonged to $[5]$ the estate of the late Antonio Kiiza which the Respondents inherited and not Bahandagana under whom the Appellants claim. She accordingly dismissed the suit with costs to the Respondents. - The Appellants were dissatisfied with the judgment and orders of the trial $[6]$ Magistrate and lodged the present appeal on one ground of appeal: - 1. The trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to a wrong conclusion that the suit land belongs to the Respondents whereas not. - [7]. On the $30/6/2022$ , the parties were given timelines to file their respective submissions. Whereas Mr. Lubega Willy, counsel for the Appellants filed submissions for the Appellants, Mr. Aaron Baryabanza for the Respondents did not. Court having waited long enough for the Respondents to file their respective submissions, since submissions are not evidence but guide to court in determination of the issues at hand, proceed to consider and determine the appeal.

# Duty of the 1<sup>st</sup> Appellate Court

- It is trite that the duty of the 1<sup>st</sup> appellate court is to review the record of $[8]$ evidence for itself in order to determine whether the decision of the trial court stands without necessarily interfering with the discretion of the trial court unless satisfied that the trial court has misdirected itself and thus arrived at a wrong decision, Stewards of Gospel Talents Ltd Vs Onyango, HCCA No.14/2008 and N. I. C Vs Mugenyi [1987] HCB 218. - $[9]$ In this case, this court as the 1<sup>st</sup> Appellate court shall rehear the case on appeal by reconsidering all evidence as adduced before the trial Magistrate by giving it a fresh and exhaustive scrutiny, see also Belex Tours & Travel Ltd Vs Crane Bank & Anor, CACA No.71 of 2009.

**Consideration of the Appeal**

- Ground 1: The learned trial Magistrate erred in law and fact when she failed to properly evaluate evidence on record and came to a wrong conclusion that the suit land belongs to the Respondents whereas not. - [10] Counsel for the Appellants Mr. Lubega Willy submitted that the Appellants adduced consistent evidence through Kaahwa Edward (PW1), Taryeba Vicent (PW2) and Sperion Bahemuka (PW5) that the suit land belonged to the Appellants' father, Mikairi Bahandagana who acquired it in 1960's from Bugambe sub county for tea plantation he planted before his demise. That the suit land is demarcated from other people like Isingoma by the road to Bugambe Tea estate. - [11] Counsel submitted further that the Respondents, Tibamanya Francis (DW1) claimed that their father Antonio Kiiza acquired the suit land in 1972 from Bunyoro Kingdom while Ibrahim Ndolerire (DW3), a brother of the Appellants' father Bahandagana stated that their father Antonio Kiiza purchased the land from the government. According to counsel, this was a major contradiction between the evidence of DW1 and DW3 regarding how their father Antonio Kiiza Acquired the suit land.

[12] I do not however consider the above as a contradiction. DW1 testified at page 19 of typed proceedings thus;

"I know the suit land is located at Bugyega. It neighbours a road going to Bugambe tea estate" [Referring to the Respondents' father's landl

Then later he stated that:

"The suit land has one mango tree that was planted when I was young. Our father's land crossed the road."

Then later at **page 20** of the typed proceedings, he states thus: "The suit land has no tea garden" [Referring to the Respondents' father's land]

[13] As regards Ibrahim Ndolerire (DW3), at pages 23 & 24 of the typed **proceedings,** he stated thus:

"The land belonged to our father and Bahandagana [father to the Appellants] got his share. It is the $2^{nd}$ defendant who is occupying the land of Bahandagana. The land that was given to Bahandagana shares boundaries with the suit land. Our father's land was there before the road to Bugambe was constructed. The tea garden is not in the suit land.

It is in the land of the plaintiffs that is undisputed." [Emphasis] Then during cross examination as regards how their father Antonio Kiiza acquired the land, he stated thus:

"Our father bought the land at $5/$ = from government. *I saw the certificate."*

[14] Clearly, there is no contradiction between the evidence of DW1 and DW3 as regards how Antonio Kiiza acquired the suit land. He secured it from Bunyoro Kingdom which DW3 refers to as "government" at a fee of $5/$ = for the allocation of the land. What is also apparent is that the certificate of Respondents land has never had any tea garden. Whereas DW1 categorically stated that the suit land neighbours a road going to Bugambe tea estate and thereby agreeing that their land i.e the suit land is demarcated from other people's lands by the road going to Bugambe tea estate, again he claimed that the land rightfully belonging to the father of the Appellants, **Bahandagana** is being occupied by the 2<sup>nd</sup> Respondent.

[15] Evidence at locus is as follows; $DW1:$

> "The boundary is Mukarebafu tree which is not cut by the plaintiff..... The tree is the boundary...... They said we grabbed their Land where their tea leaves was but we did not, the tea leaves are there no one touched them. [sic]

Observation: The tea leaves are across the alleged boundary."

- [16] In her judgment, the trial Magistrate concluded that the suit land originally belonged to the estate of the late Anthony Kiiza, grandfather to the Appellants and father to the Respondents and the land was distributed to the Respondents and the father of the Appellants, Bahandagana as beneficiaries. Bahandagana planted tea garden thereon. - [1 $\stackrel{1}{\rightharpoonup}$ From the Appellants' case, it is clear that it is not in dispute that the Respondents' land is adjacent to that of the Appellants. The Appellants' land is majorly characterized by evidence of tea growing that was still visible at the time of the locus visit. The trial Magistrate identified the Appellants' land with the evidence of tea growing. The trial Magistrate having seen and heard witnesses testify and then visited locus, she found the Appellants' land still available for them and not interfered with by the Respondents. I do not find any reasons or grounds whatsoever of interfering with her findings. - [18] As a result, this court also finds that there is no evidence that the Respondents encroached and or trespassed on the Appellants' land. The sole ground of Appeal is found devoid of any merit and the Appeal is accordingly dismissed. No order is made as regards to costs because of the blood relationship of the parties, the Respondents are uncles to the Appellants and therefore they ought to stay together harmoniously.

Dated this 13<sup>th</sup> day of September, 2024.

**Byaruhanga Jesse Rugyema** JUDGE.

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