Kabutiti and Another v Mujurizi (Civil Appeal 7 of 2018) [2023] UGHC 161 (17 March 2023)

# **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-0007-2018

(Arising from IBD-00-CV-CS-0013-2017) (Arising from MBR-00-CV-CS-0004-1987)

# 1. JOYCE LYNN KABUTITI

# 2. HENRY KATUNGI :::::::::::::::::::::::::::::::::::: **VERSUS**

#### JAMES MUJURIZI :::::::::::::::::::::::::::::::::::

**BEFORE:** HON LADY JUSTICE JOYCE KAVUMA

## **JUDGMENT**

#### Introduction.

[1] The appeal arises from the judgment and orders of the learned trial Chief Magistrate sitting at the Chief Magistrate's Court of Ibanda at Ibanda delivered on 17th November 2017 in IBD-00-CV-CS-0013-2017.

#### Background.

[2] This appeal spans over a long history of litigation. From the record, it originated in the Magistrates Grade II court at Kazo within the Chief Magistrate's Court of Mbarara in 1987.

From the pleadings in that court, the Plaintiff now the Respondent; James T. Mujurizi sued Asanasio Nyainona and Enos Kabutiiti inter alia for an order of eviction, special damages and general damages, costs and interest arising out of trespass on his land.

The Plaintiff's case was that he bought a Kibanja at Bugarihe village from a one Kato several years back. The 1<sup>st</sup> Defendant now represented by the Appellants encroached upon the Kibanja, severed it by planting trees inspite of protests from the Plaintiff. That the Plaintiff's matter was referred to the local Resistance Committees that ruled in his favour. That despite this, the 1<sup>st</sup> Defendant still defied this decision and continued to deprive the Plaintiff of his enjoyment of the kibanja. That the $2^{nd}$ Defendant also cut down; in 1985, fencing wires and poles on another side of the same Kibanja, encroached upon it and started grazing his cattle thereon. According to the Plaintiff, these acts of the Defendants amounted to trespass for which he sought an eviction order against the two Defendants and compensation for the damaged barbed wire, poles and trees cut from his land by the 2<sup>nd</sup> Defendant.

The two Defendants in the matter filed a joint defence in which they denied all the allegations of the Plaintiff and further averred that the suit Kibanja was theirs having successfully litigated upon it in various tribunals. That they were successful against Kato from whom the Plaintiff claimed title and the Plaintiff was ordered off the land but refused to move off the land. They therefore counterclaimed against him. In the counterclaim, the two Defendants claimed trespass against the Plaintiff following successful litigation against Kato in Civil Suit no. 36 of 1985 at Kazo Court. They sought an order for eviction, general damages, mesne profits and costs.

The record indicates that the matter passed through relatively a number of Magistrates and changed from the Chief Magistrate's Court of Mbarara to Ibanda when the court was gazetted. The record also shows that the 2<sup>nd</sup> Defendant, along the way, settled with the Plaintiff. The 1<sup>st</sup>

Defendant died during litigation and the case proceeded with the Administrators of his estate; the Appellants.

The learned trial Chief Magistrate who finally handed down judgment in the matter decided in favour of the Plaintiff/Respondent. He found that the suit Kibanja belonged to the Plaintiff/Respondent. He further founded no evidence of trespass from the Defendant/the Appellant, issued a permanent injunction against the Defendant and awarded costs against him.

## The parties' evidence during trial.

#### $1.1.$ The Plaintiff/Respondent's evidence.

[3] At trial, the Respondent brought four witnesses who gave evidence viva voce.

**PW1** James T. Mujurizi told court that the suit Kibanja belonged to him belonged to him having bought it from a one Kato and executed an agreement in that regard on 10<sup>th</sup> April 1986. PEXh 1, the land sale agreement was admitted by the trial court. He also tendered into court a general receipt from the then Gomborora Chief as proof of payment. He told court that he immediately took possession of the Kibanja and built his permanent residential home thereon where he stays and also put a farm. The further told court that his land did not share any common boundary with that of the Defendant. He testified that in 1986, the Defendant in company with his workers entered his land, cut the barbed wire fence and put cattle onto his land.

During cross-examination, he testified that during purchase of the land, the seller Kato called witnesses that included the neighbours to the land. When

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cross-examined on why the general receipt had different amounts from how much he bought, he told court that the seller never wanted to pay a high tax so he declared a lesser sum.

PW2 Geoffrey Itaagi told the trial court that he was the younger brother to Kato, the seller. He confirmed that the Plaintiff had bought the Kibanja from his brother in 1985. That he signed on the land sale agreement as witness number 2. He further testified that the Plaintiff started using the Kibanja thereafter. He also told court that the Defendant/Appellant entered onto the Plaintiff's Kibanja, started grazing thereon and his cows broke the Plaintiff's fence.

During cross-examination he maintained that the Kibanja belonging to the Plaintiff did not share a common boundary with that of the Defendant.

**PW3** Wilson Kato told court that he was not aware that Kato had sold any land to the Defendant. He told court that the land neighbours Itaagi, Rweibeebe and Mujurizi and on the upper side there was a road. He testified further that he saw the Plaintiff buy the Kibanja and he also signed on the land sale agreement.

During cross-examination, he maintained that the land belonged to the Plaintiff and when he purchased it, he took possession of it.

PW4 Misaki Bitakatahire told court that he knew the Plaintiff's land since he had sold it to him at UGX 200,000/ $=$ and it did not border that of the Defendant. That the Plaintiff grazes on the Kibanja and also has a plantation thereon. He testified further that by the time he sold the land

to the Plaintiff, he had not started litigating with the Defendant over land. That the land he litigated upon with the Defendant was not the same as that of the Plaintiff.

During cross-examination, he maintained that whereas he had a land dispute with the Defendant for which he was successful, he only took part of the land, the part he had not sold to the Plaintiff. That the land he sold to the Plaintiff was not in dispute. That the land dispute he had with the Defendant began in 1986 while he had sold the land to the Plaintiff in 1985. He testified further that the land he litigated upon with the Defendant boarders Birangaire, Itaagi, a road and Mugusa and the two portions; that it, that of the Plaintiff and Defendant were different. That the two Bibanjas were in the same cell but different locations.

#### 1.2. The Defendant's evidence.

[4] The Defendant also led his evidence orally through two witnesses.

DW1, Robert Tumuheirwe testified that he was a resident of that area for the last fifty-six years. That he was born in 1958 and by the time he was born, the Defendant was already settled there. That he was the muruka chief of the area from 1982 to 1985. That the boundaries of the Defendant's land were that he was bordering Mishaki Bitakatahiire, George Irumba and a catholic church land. That the Defendant's land was approximately 300 acres. He testified further that the Plaintiff bought the Kibanja in Bugarihe from a one Kato and he was one of the witnesses to his sale agreement where he signed as a parish chief. He also identified the other witness to the agreement as PW4. That the acreage of the land for which they made the agreement was 1 acre. He told court that the boundaries of this kibanja were Geoffrey Haji, a road going to Migina and

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the Defendant. That the Plaintiff crossed the former road which was the boundary of the land he bought with that of the Defendant and encroached on the Defendant's land by 25 to 30 acres. That the Defendant has never crossed onto the Plaintiff's land.

During cross-examination, he testified that the land sale agreement did not indicate the Defendant as one of the neighbours and did not specify the size of the land bought. That whereas the agreement indicated a road on the upper side, it did not name it as Migina road.

DW2 Katungi Henry told court that he had been a resident of the area for about fifty-six years and the Defendant was his father. That their father settled in the area in the early 1950s. he testified that the boundaries of his father's land in the north there was George Irumba, then catholic church land, in the east is a swamp called Rwetuma and also a neighbour called Grace Gumisiriza. In the south there was a neighbour called Itaagi, in the West still the swamp. That their land was approximately 300 acres. He testified further that the size of the land that the Plaintiff bought was one acre in 1985 from a one Kato. That the land was neighbouring that of his father which he stole, in the north was Itaagi and on the east their land. That there was an old road between the land of his father and that of Itaagi which Itaagi gave to Kato who in turn sold it to the Plaintiff.

During cross-examination, he testified that the Plaintiff took 30 acres of his father's land where he put his cattle but the LC intervened.

1.3. The proceedings at the locus in quo.

[5]At locus, PW1 showed the trial court what he believed to be the boundaries of his Kibanja and a sketch map was drawn by the trial Magistrate. PW3 also showed court the land he sold to the Plaintiff. PW2 also maintained his testimony as given in court and showed court the boundaries for the land whose sale agreement he signed.

DW1 disagreed with the boundaries as shown by the Plaintiff's witnesses. He informed court that the land the Plaintiff bought was on another side and the land showed by the Plaintiff's witnesses belonged to the Defendant. He in turn showed court the boundaries he believed to be for the Plaintiff's Kibanja.

DW2 showed court the land the Plaintiff had encroached upon which he believed belonged to his late father the Defendant.

[6]After trial, judgment was delivered against the Defendant. The Defendant feeling dissatisfied with the judgment and orders of the learned trial Magistrate preferred the instant appeal in a memorandum of appeal dated $2<sup>nd</sup>$ February 2018 on the following grounds;

> The learned trial Magistrate erred in law and fact when he $\mathbf{1}$ failed to consider and properly evaluate the evidence of the Appellant's witnesses and in so failing thereby came to a wrong decision.

> The learned trial Magistrate erred in law and fact when he $\overline{2}$ . relied exclusively on the evidence of the non-existence of old Migina road in utter disregard of the corroborating evidence of the sale agreement PExh 1, Robert Tumuheirwe ("DW1") and the passage of time being thirty (30) years thereby arriving at a wrong decision that the entire property situate at Bugarihe village belongs to the Respondent.

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The learned trial Magistrate erred in law and fact in $\mathbf{3}$ dismissing the Appellants' counterclaim.

The learned trial Magistrate erred in law and fact when he $\overline{4}$ granted a permanent injunction restraining the Appellants from further claim of the suit land when the same was never prayed for.

The learned trial Magistrate erred in law and fact when he 5. awarded costs to the Respondent, he having failed to prove encroachment on any portion of his land and/or damages.

The Appellants prayed that this court allows the appeal, sets aside the judgment of the trial Chief Magistrate and awards costs here and in the court below.

## Representation.

[7] The Appellants were represented by M/s Bwengye & Associated Advocates while the Respondent was represented by M/s Kwizera & Co. Advocates. Both counsel filed written submissions in the appeal which I have considered in coming to this judgment.

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## The duty of this court.

[8] This being a first appellate court, it is duty bound to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three others vs. Eric Tibebaga SCCA 17of 2000, [2004] KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting

evidence and draw its own inference and conclusions (see Lovinsa Nankya vs. Nsibambi [1980] HCB 81).

In its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate's findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally. (See Nyero vs Olweny and Ors (Civil Appeal 50 of 2018) and Kaggwa vs Ampire (Civil Appeal 126 of 2019) per Mubiru $J.$ )

I shall determine this appeal with the above principles in mind.

# Analysis and decision.

[9]Counsel for the Appellants argued the first two grounds of appeal together. These were;

Ground 1: The learned trial Magistrate erred in law and fact when he failed to consider and properly evaluate the evidence of the Appellant's witnesses and in so failing thereby came to a wrong decision.

Ground 2: The learned trial Magistrate erred in law and fact when he relied exclusively on the evidence of the non-existence of old Migina road in utter disregard of the corroborating evidence of the sale agreement PExh 1, Robert Tumuheirwe ("DWI") and the passage of time being thirty (30) years thereby arriving at a wrong decision that the entire property situate at Bugarihe village belongs to the Respondent.

On these two grounds, counsel for the Appellants submitted that in arriving at the decision that the Respondent had proved ownership by way of a sale agreement and occupation, the learned trial Magistrate failed to properly evaluate the evidence on record in particular the evidence of DW1 who was the muruka Chief of the area where the land in dispute is located.

Counsel submitted further that according to the court record, DW1 testified that he was there when the Appellants' late father was buying the suit Kibanja from Kato and he was the one who signed on the agreement and the Respondent had encroached on it by about 25 to 30 acres. That the witness further maintained that the Appellant's land stretched up to the road going to Migana but the same was no longer there. That it was this road that separated the Appellant's land from that of Kato which was also maintained at the locus in quo visit. According to counsel, this evidence was never rebutted or challenged during trial.

Counsel concluded that the learned trial Magistrate never appreciated and never considered the unchallenged evidence of DW1 and DW2 while delivering his judgment and by relying on the non-existence of the Migina road to find that the Kibanja belonged to the Respondent was an error. That the court should have considered the fact that after the passage of more than 30 years, some features like the road may have changed. Counsel relied on this to state that the trial Magistrate failed to properly evaluate the evidence on the court record and thus arrived at a wrong conclusion which ought to be quashed.

For the Respondent, it was submitted by counsel that the learned trial Magistrate properly evaluated the evidence on the court record and reached a correct conclusion. That the Respondent presented a purchase agreement which did not indicate anywhere that the suit land shared a common boundary with the old Migina road which the Appellant claimed was the boundary of the suit land. That the seller, PW3 testified that he sold the suit kibanja to the Respondent which evidence was unchallenged by the Appellant. That he also appeared at locus and confirmed the boundaries of the land which did not include the old Migina road which was not seen by the court. That the learned trial Magistrate's decision was based on the evidence before him and the fat that the Respondent has at all material times been in occupation as opposed to the Appellant who is not in occupation.

Counsel concluded that the trial Magistrate properly evaluated the evidence on record and found that the Respondent was the lawful owner of the suit kibanja having acquired it by way of purchase.

[10] The Portion of the learned trial Magistrate being complained of can be traced at **page 2** of his judgment. At the said page, he stated;

"From the above evidence and submissions of both counsel, this court finds that on balance of probability the Plaintiff proved ownership by sale agreement and occupation. At locus court did

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not find a road called Migina as alleged by the Defendants. The suit land is along Kazo-Burunga road not Migina road and court did not see Migina road. The sketch map drawn by the Defendants' counsel attached to his submissions showing old Migina road is therefore misleading because court found only one road. I therefore find the suit land belongs to the Plaintiff and not the Defendants." [Emphasis added]

From the onset, I have to point out that the learned trial Magistrate's finding that the Plaintiff owned the suit kibanja was based, as shown above, on the sale agreement and occupation and not on the absence of the old Migina road as submitted by counsel for the Appellant.

I will subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before making a decision.

It is now settled law that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. (See Section 101 of the Evidence Act).

The standard of proof in civil cases as the instant one is proof on a balance of probabilities. (See Miller vs. Minister of Pensions [1947] 2 ALL ER 372). The standard of proof is a probabilistic threshold. The plaintiff will satisfy this standard and succeed in his or her claim only if there is, on all the evidence adduced in the case, more than a probability of his or her claim is true.

$[11]$ The Respondent in the instant case, as per the plaint on record alleged that he had bought a kibanja at Bugarihe village from a one Kato and that the Appellant had encroached on one part of the said kibanja by planting growing demarcating trees inspite of his interests. The Respondent therefore had to prove the above allegations on a balance of probabilities before judgment could be entered in his favor.

To prove that he had bought the suit kibanja, the Respondent in his evidence in chief told court that he bought it from a one Kato at UGX 200,000/= on 10<sup>th</sup> April 1985 and the two executed a sale agreement. He tendered into court the said sale agreement which was admitted as **PEXh 1** with no objection from the Appellant and so was the general receipt that was given to him as **PEXh 2**. Save for the general receipt, the sale agreement remained unchallenged even during crossexamination.

It is now trite that an omission or neglect to challenge the evidence-inchief of an adversary during trial, on a material or essential points by cross-examination would lead to the inference that the evidence is accepted subject to its being assailed as inherently incredible or probably untrue. (See Uganda Revenue Authority vs. Mabosi (Civil Appeal 26 of 1995) [1996] UGSC 16 per Karokora JSC (RIP)).

On the above authority, I find that the land sale agreement **PExh1**, as accepted as proof of purchase of the suit kibanja. To this end and in agreement with the finding of the learned trial Magistrate, the Plaintiff/Respondent proved that he purchased the suit kibanja from a one Kato.

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This was however not the end, ordinarily, descriptions contained $\Gamma$ 121 in title deeds will fix boundaries. This is true for land registered under the Registration of Titles Act (RTA). Land registered under the RTA required a cadastral survey to be prepared which is based on a fixed boundary principle. Such a survey has an accurate linear and angular measurements to aid the registration of a title of a plot. The boundaries of land registered under the RTA can easily be identified by any surveyor because of the fixed nature of its beacons. (See for example in Ali Mohamed Salim vs. Faisal Hassan Ali (2014) eKLR). This is however not the case for unregistered land or bibanja as in the instant case.

The dispute in the instant appeal as I understand it is not on who owns the suit kibanja but on what are the boundaries of the said kibanja. This is a boundary dispute. One party claims, that another encroached into his land while the other claims that was his portion and so he had a right to utilize it.

Boundary disputes regarding unregistered land like in the instant case always involve general boundaries that are ascertained by the parties at the time of sale or purchase of unregistered land. For this reason, for one to resolve a dispute in respect to general boundaries, the physical features existing on the ground are very critical. Such features include hedges, fences and roads. Because general boundaries are identifiable by using the existing physical features, and by interviewing the owners of the adjacent plots, a visit to the locus in quo is so critical.

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[13] Visit to the locus in quo by the judicial officer is the visual collection of evidence whether or not the evidence is in conformity with the description of the witnesses in court.

The judicial officer must be present to hear and see the witness, step boundaries, or show court the subject matter.

Locus in quo visits by court are guided by the procedure and principles for conducting a visit to the locus in quo set out in **Practice Direction No. 1 of 2007** and specifically **Guideline 3** thereof;

"During locus visit of land dispute, the court should take interest in visiting the locus in quo, and while there

- (a) Ensure that all parties, their witnesses and advocates (if any) are present. - (b) Allow the parties and their witnesses to adduce evidence at the locus in auo. - (c) Allow cross examination by either party, or his/her counsel. - (d)Record all proceedings at the locus. - (e) Record any observations, view, opinion or conclusion of the court."

In the case of William Mukasa vs. Uganda (1964) EA 698, 700 Sir Udo **Udoma CJ** [as he then was]

"A view of a locus in quo ought to be, I think, to check on the evidence already given and where necessary and possible, to have such evidence ocularly demonstrated in the same way a court examines a plan or map or some fixed object already exhibited or


spoken of in the proceedings. It is essential that after a view, a judge or magistrate should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be a substitute for evidence"

In Bongole Geofrey & 4 Ors vs. Agnes Nakiwala CACA No. 76/2015, the Court of Appeal observed that failure of a judicial officer to record the proceedings during locus in quo is a fatal procedural irregularity amounting to a miscarriage of justice. That the appellate court is empowered to direct a retrial if it is of the opinion that the defect resulted in a failure of justice. The court however cautioned that the power to order a retrial ought to be exercised sparing and with great caution taking into consideration due to the lapse of such a long period of time, it is no longer possible to conduct a fair trial due to loss of evidence, witnesses or such other similar adverse occurrence.

While visit to the locus in quo is not a mandatory requirement, where court deems it deserving and proceeds to the locus in quo, then it ought to be carried out properly since locus in quo visits are meant to test whether the evidence as given at trial is in tandem with what is physically on ground. (See **Bongole supra**).

[14] A close look at the land sale agreement and its translation reads in part as follows;

"I Katto, have sold my land to J. T Mujurizi. The land is near the road. Its lower side borders with Itanga, while the upper side, is the road." [Emphasis mine]

From the above excerpt, it would be the case that the boundaries of the suit kibanja as per the agreement were the road, Itanga and the road. At trial, the Plaintiff/Respondent; that is PW1 throughout his testimony both in chief and when he was cross-examined, never told court the rough boundaries of his land. It was PW2 who while giving his evidence in chief that told court that:

"The land neighbours: Mugasha, a church (bugarihe Church), road to Mbarara/Kabugore), and myself. I still border this land."

PW3 on the other hand told court during his testimony in chief that; "The land neighbours are: Itanga, Rweibeebe, and Mujurizi. On the upper side there is a road."

PW4 in court, during cross-examination stated that;

"The land I litigated with Kabutiiti borders Birangaire, Itanga, a road, and Mugasa. I can show court these different lands if we visited them."

When court inquired further, **PW4** continued that;

"The land borders Itaagi on the west, on the side of the road, (Mbarara/Kabogore), (upper side) Mugasa is on the east. In the south there is Mujurizi."

At the locus in quo visit, the Plaintiff/Respondent opted to show court the physical boundaries of his land. He stated that:

"This is the land I bought from Kato. It begins from my house there. The neighbour was Itagi on that side. That banana plantation was within the land that I bought. It is Itagi his brother who bordered that side also. At bottom there was the well which was within the well I bought. Top is Kazo Burunga road. It was a

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bush now it is a farm with paddocks. I was not bordering with the late Kabutiiti anywhere on this land."

All the evidence I have laid out above was never challenged by the Defendant/Appellant by cross-examination.

The above notwithstanding, DW1 told court in his evidence in chief, while describing the Defendant's/Appellant's land that;

"I knew the boundaries of his land [the Appellant]. I happened to have been a muruka chief in that place and it was part of my duty to know some people's boundaries...on the one side was Mzee Kampiimpi. On another side was Ntenyingi and yet on another side was George Irumba and it was bordering the catholic church land."

In relation to the Plaintiff/Respondent's land, DW1 told court that;

"We made the agreement where the land was. It was a small land about 1 acre. Even if we went to locus now, I can identify this land. One side of this land had Geoffrey Itaagi, another side there was a road going to Migina but it is no longer there and yet another side was Kabutiiti."

During cross-examination, **DW1** told court that;

"The agreement did not indicate Kabutiiti as one of the neighbours. The agreement did not specify the size of the land bought. The agreement indicates a road on the upper side but does not name it as Migina road."

**DW2** on his part told court in chief that;

"I know the boundaries as I grew up there up to now and he used to show me the boundaries when I grew old in my early 20s. the boundaries of my father's land from North there is a neighbour called George Itaagi, then catholic church land. On the east is a swamp called Rwetuma and also a neighbour called Grace Gumisiriza. In the South is a neighbour called Itagi. In the west is still the swamp.

In relation to the Plaintiff/Respondent's land **DW1** stated that;

"I can identify the land the Plaintiff bought from Kato. I know his boundaries as it was neighbouring my father's land which he grabbed. In the North Itaagi and in the East our land. There was an old road from Kazo going to Buremeba passing through and it was between my father's land and Itaagi. The very old road separated Itaagi's land which he gave to Kato who sold it to the Plaintiff."

At the locus in quo, DW1 told court that;

"The boundaries are not here we are in the wrong place. The right place is the other side. I did not come this side. This part of the land belonged to Mzee Kabutiiti... The right place is now here. The road going to Migina. This is the road referred to in the agreement I signed. The Kibanja that I sold was on the right of the road. The neighbour was Itagi and bottom was Itagi. Mujurizi had no other land apart from this one in Bugarihe."


When cross-examined **DW1** told court that;

"I don't know what happened to the road. I have been in the area since I was born..."

From the above excerpts of the evidence on record, the following are the conclusions I can make of it:

[15] The suit kibanja had a boundary of a road common and George Itaagi in the evidence of all witnesses. PW2 ((Geoffrey Itaagi), PW4 (Misaki Bitakatahire) and DWI (Robert Tumuheirwe) were all witnesses to the land sale agreement executed between the Plaintiff/Respondent and the Defendant/Appellant.

PW2 and PW4 were both consistent in relation to the fact that the suit kibanja had a common road, called Mbarara/Kabugore. On this DW1, a fellow witness differed. Whereas he agreed that the suit kibanja had a road, in court, he called it "an old road from Kazo going to Buremeba" while at locus, during cross-examination as clearly shown above, he contradicted himself when he said that "The road going to Migina". This I believe is what made up Counsel for the Appellant's submission on Migina road.

PW2 and PW3 did not however testify at locus. However, PW1 who testified at locus referred to the road as "Kazo Burunga road" and showed court the road. It is relatively strange that DWI who claimed to have been in the area since he was born, a muruka chief at that, did not know what happened to such a clear feature as the road. The same road "Kazo-Birunga" road is what the trial Magistrate refers to in his judgment as what he observed at locus.

The above notwithstanding, PW1 showed the boundary of his land at locus as beginning from his house while DW1's testimony at locus indicated that the boundaries were in a wrong place and were on another side. DWI's testimony at locus would seem to suggest that the Plaintiff/Respondent built his house which he called the beginning of his boundary, in the Appellant/Defendant's land while he looked on. It is rather strange that the Appellant instead decided to sue a one Kato instead of the Plaintiff/Respondent that had clearly built in his land if DWI is to be believed and only waited to counterclaim later in the case by way of amendment to his Written Statement of Defence.

DW2 told court that the boundaries of the Plaintiff's land were to the East neighbouring his father's land. If at all this was true, it would mean that technically, to the West, contrary to the swamp he had mentioned earlier, there would be the Plaintiff's land.

These are major contradictions in the Defendant/Appellant's evidence that went to the root of the case.

[16] In the case of **Constatino Okwel alias Magendo vs. Uganda SCCA** No. 12 of 1990 the Supreme Court laid down the law as to contradictions and inconsistencies. Court stated that:

"In assessing the evidence of a witness, his consistency or inconsistency, unless satisfactorily explained, will usually, but not necessarily, result in the evidence of a witness being rejected,

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minor inconsistences will not usually have the same effect, unless the trial judge thinks they point to deliberate untruthfulness. Moreover, it is open to a trial judge to find out that a witness has been substantially truthful even though he lied in some particular respect."

The evidence led by the Defendant/Appellant is less probable as to the exact boundaries of the land he claimed he owned. I find the evidence of the Plaintiff/Respondent more believable on a balance of probabilities.

The above coupled with the fact that the Plaintiff/Respondent had proved purchase of the suit kibanja, I am in agreement with the finding of the trial Magistrate that the suit land belonged to the Plaintiff/Respondent.

The first two grounds of appeal are therefore without merit.

Ground 3: The learned trial Magistrate erred in law and fact in dismissing the Appellants' counterclaim.

[17] Counsel for the Appellant submitted that the learned trial Magistrate in finding in favour of the Plaintiff/Respondent dismissed the Appellant's counterclaim without setting it down for hearing. That one of the crucial aspects of the said counterclaim was that of the decision of court in Kazo Court Civil Suit No. 36 of 1995 where the Appellant's late father successfully sued Kato who had claimed to have acquired title to the suit land. That it was incumbent upon the trial Magistrate to hear the counterclaim and get evidence to that effect which would have

helped in adjudicating the matter. That further, the Respondent filed no reply to the counterclaim therefore Order 8 Rule 18(3) applied.

In reply, counsel for the Respondent submitted that the learned trial Magistrate considered both the main suit and counterclaim together. He submitted that a counterclaim cannot be heard in exclusion of the main suit since that would not make sense. That the counterclaim was raising the issue of res judicata which was handled and dismissed as a preliminary objection by the court before proceeding to hear the main suit.

[18] The court record indicates that the Plaintiff/Respondent filed their Plaint on 7<sup>th</sup> June 1986. The record also indicates that the Defendants first filed a Written Statement of Defence on **29<sup>th</sup> October 1987** through their then advocates *M/s Matovu*, *Kamugunda and Co. Advocates*.

However, in a turn of events, the record of court still indicates counsel for the Defendants on 30<sup>th</sup> May 1995 praying to court to file a Written Statement of Defence. Counsel never brought it to the attention of court that there existed an earlier Written Statement of Defence.

The court allowed the prayer and granted the Defendants leave to file a Written Statement of Defence within fifteen days hence the Written Statement of Defence filed on 12<sup>th</sup> June 1995 which contained a counterclaim.

[19] The law that governs the making of a counterclaim and reply thereto is found in Order 8 rules 7, 8 and 11 of the Civil Procedure Rules. **Rule 7** provides that:

"7. Counterclaim.

Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he or she shall, in his or her statement of defence, state specifically that he or she does so by way of counterclaim."

**Rule 8** provides that:

"8. Title of counterclaim.

Where a defendant by his or her defence sets up any counterclaim which

raises questions between himself or herself and the plaintiff together with any other persons, he or she shall add to the title of his or her defence a further title similar to the title in a plaint, setting forth the names of all the persons who, if the counterclaim were to be enforced by cross-action, would be defendants to the cross-action and shall deliver to the court his or her defence for service on such of them as are parties to the action together with his or her defence for service on the plaintiff within the period within which he or she is required to file his or her defence."[Emphasis mine]

Rule 11 in as far as it is relevant to the instant appeal provides in part that:

"11. Reply to counterclaim.

(1) Any person named in a defence as a party to a counterclaim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him or her of the counterclaim."

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Order 8 rule 7 above allows a Defendant to file a counterclaim against a Plaintiff where he or she seeks to rely upon any grounds as supporting a right of counterclaim. Rule 8 thereof imposes on such a Defendant a duty to deliver to court his or her defence for service upon those named in the counterclaim within a period within which he or she is required to file his or her defence. Rule 11 requires the party that is served with the counterclaim to file a reply to that counterclaim within fifteen days after service.

I have not found proof of service of the counterclaim against the Plaintiff as required by Order 8 rule 8 which act would have set in motion the provisions of Order 8 rule 11 above. The best evidence of service of court documents is an affidavit of service sworn by the serving officer in that regard. This is in line with the decision of the Supreme Court in Edison Kanyabwera vs. Pastori Tumwebaze (Civil Appeal 6 of **2004)** where the court held inter alia that:

"Order 5, rule 17 of the C. P. R provides that where summons have been served on the defendant or his agent or other person on his behalf, the serving officer, shall in all cases, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served and name and address of the person, if any, identifying the person served and witnessing the delivery of the tender of the summons. The provisions of this rule are mandatory... What the rule stipulates about service of summons. in my opinion, applies equally to service of hearing notices... The

absence of such affidavit leads inevitably to the conclusion that the defendant was not properly served with the hearing notice before the suit was heard in his absence." (Emphasis mine)

Would the counterclaim survive on the court record in the absence of such proof of service upon the Plaintiff/Respondent requiring him to respond to the counterclaim. The answer to this can be found in Order 5 rule 1(3) of the Civil Procedure Rules. That provision provides that;

"(3) Where summons have been issued under this rule, and— (a) service has not been effected within twenty-one days from the date of issue: and

(b) there is no application for an extension of time under subrule (2) of this rule; or

(c) the application for extension of time has been dismissed, the suit shall be dismissed without notice." [Emphasis mine]

Without prejudice to the fact that the second Written Statement of Defence was filed under unclear circumstances, the counterclaim therein would still have been dismissed for non-service upon the Plaintiff/Respondent.

The third ground is therefore without merit.

Ground 4: The learned trial Magistrate erred in law and fact when he granted a permanent injunction restraining the Appellants from further claim of the suit land when the same was never prayed for.

Ground 5: The learned trial Magistrate erred in law and fact when he awarded costs to the Respondent, he having failed to prove encroachment on any portion of his land and/or damages.

[20] On ground 4, it was submitted by counsel for the Appellant that while giving remedies, the trial Magistrate awarded a permanent injunction against the Defendant/Appellant, which was never prayed for and nor was there a prayer for "any other remedies". That the wording of the injunction, that is, restraining the Defendant from further claim of the suit land implied that the Defendant/Appellant cannot go to any other competent court to exercise his right of appeal.

On the 5<sup>th</sup> ground, it was submitted by counsel for the Appellant that awarding costs whereas the Magistrate erred in trial the Respondent/Plaintiff had failed to prove trespass.

In reply, counsel for the Respondent, submitted on both grounds that the learned trial Magistrate was correct to issue a permanent injunction against the Appellant and also issue costs against them since the Respondent was the successful party in the litigation. That it was not correct to state that the injunction stopped the Appellant from pursuing an appeal.

[21] In relation to ground 4 of this appeal, it is worth noting from the onset that there was no prayer for a permanent injunction and no averments in the plaint to provide a basis for such a claim; it was not specifically pleaded. It is an agreed position of the law that parties are

generally confined to their pleadings unless pleadings were amended during the hearing of a case. (See Galaxy Paints Company Limited vs. Falcon Guards Limited [2000] EA 385). It is therefore my finding that the permanent injunction was awarded in error. It is accordingly set aside.

[22] In relation to ground 5 of this appeal, costs depend entirely on the result of the litigation. Simply put, costs follow the event.

Costs signify the sum of money which court orders one party to pay another in respect of the expenses of litigation incurred. It is therefore the case that except where specifically provided for by the law or by rule of court, the award of costs of proceedings are in the discretion of court.

In Halsbury's Laws of England, 4<sup>th</sup> Edn., Vol 12, at page 414, it is stated as follows in relation to costs:

"... the sum of money which the court orders one party to pay another party in an action as compensation for the expense of litigation incurred. The definition continues to the effect that costs are awarded as compensation (i.e., reimbursement); there is, unlike damages, no restitutio in integrum, that is to say, no concept in costs, as there exists in damages, that the injured person should be placed, in so far as money can do so, in the same position as he occupied before the injury was suffered".

The first and cardinal underlying principle from the above authorities is that costs are not awarded as some form of punishment against the defeated party but as a recompense to the successful party for the

expenses to which he or she had been subjected, or for whatever appears to the Court to be the legal expenses incurred by the party in prosecuting his suit or his defence. The second principle as to why courts award costs is to serve the purpose of curbing frivolous and vexatious litigation. (See for example in Cropper vs. Smith (1883) 26 Ch D 700 per Bowen L).

In the case of Manindra Chandra Nandi vs. Aswini Kumar Acharjya, ILR (1921) 48 Cal 427, it was authoritatively observed that;

"The theory on which costs are now awarded to a plaintiff is that default of the defendant made it necessary to sue him, and to a defendant is that the plaintiff sued him without cause; costs are thus in the nature of incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in court and consequently the party to blame pays costs to the party without fault. These principles apply, not merely in the award of costs, but also in the award of extra allowance or special costs. Courts are authorized to allow such special allowances, not to inflict a penalty on the unsuccessful party, but to indemnify the successful litigant for actual expenses necessarily or reasonably incurred in what are designated as important cases or difficult and extraordinary cases."

Ņ

It follows therefore, the Respondent, having been the successful party in the trial court, was entitled to the costs. I found no compelling reason to deny him the costs.

[23] From the foregoing, I am satisfied as was the learned trial Chief Magistrate, that there was sufficient evidence to establish the fact that the Respondent owned the suit kibanja.

Consequently, this appeal partly succeeds in regards to ground 4 which according to me had no effect in changing the outcome of the trial Magistrate's judgment.

Save for the order in regard to a permanent injunction which is set aside, the judgment and orders of the learned trial Chief Magistrate sitting at the Chief Magistrate's Court of Ibanda at Ibanda delivered on 17th November 2017 in IBD-00-CV-CS-0013-2017 is upheld.

The Appellant shall bear the costs of this appeal and in the trial court. I so order.

Dated, delivered and signed at Mbarara this. ................................... Joyce Kavuma Judge