Kakurungu v Tumwine (Civil Appeal 95 of 2015) [2020] UGCA 2159 (18 August 2020)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# [Coram: Egonda-Ntende & Musota, JJA and Kasule, Ag. JA]

## Civil Appeal No. 95 of 2015

(Arising from High Court Civil Appeal No. 041 of 2012 at Mbarara)

#### **BETWEEN**

| $\wedge$ akurungu Alex ==================================== | | $\begin{array}{c}\n\end{array}$ | |-------------------------------------------------------------|-----|---------------------------------| | | AND | |

Tumwine Anthony $==$ $=$ Respondent

(On appeal from the Judgment of the High Court of Uganda (Matovu, J.), sitting at Mbarara and delivered on the 18<sup>th</sup> day of May 2015.)

# Judgment of Fredrick Egonda-Ntende, JA

## **Introduction**

This is a second appeal arising out of High Court Civil Appeal No. 041 of $[1]$ 2012. The respondent together with Nsheeka Stella instituted Land Claim No. MDLT/86/2005 against the appellant in the Mbarara District Land Tribunal. After the closure of District Land Tribunals in 2007, the file was transferred to the High Court at Mbarara and registered as High Court Civil Suit No. 150/2007. The matter was again transferred to the Chief Magistrate's court in Mbarara for fast adjudication and registered as MBR-CV-CS-0015/2008. The plaintiffs sought a declaration that the land located at Kanyabulezi cell, Orwigi parish, Burunga sub county, Kazo county in Kiruhura district hereinafter referred to as the suit land belongs to the estate of the late Kaijamahe Boniface. The respondent and Nsheeka Stella sought a permanent injunction to restrain the appellant from further trespassing on the suit land, special and general damages for the trespass and costs of the suit.

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- 12) The resp:ndent's case was that the latc Boniface Kaijamahe acquired the suit land togethcr'with another piece of land siruated at Kyesharna cell neighbourin-e the suit land. A one Kanini liaLrclulently sold the suit land to a one Rukangara and upon realization of the fraud sold the land back to the late Kaijarnahe. The suit land was lefi vacant in 1982 when Rwandese nationals were chased lionr the country by the UPC government. Upon return front exile around 1986, the late Kaijamahe granted his brother, Baribana william permission to graze his cattle on the suit land. Upon the death of the late Kaijarnahe, Baribaana brought the appellant unlawlully on the suit land who staned constructing on the property. - t3] The appellant's case on the other hand, was that his [ather Baribaana acquired thO suit land in 1975. In 1986 when Baribaana williarn's tamily returned tiom exile, they foun<l their land had been bccupied by a one Rukunyu, who was a sub county chief. The appellant's brother Rwabukumba filed a case against Rukunyu before the LC I I court but the matter was not resolved at the time he passed away in 1998. The uratter was eventually resr:lved in 2002 befbre the LC I 1 I court and the parties agreed to share the suit land. In 2003, Rukunyu sold his share ofthe land to the appellan:. The appellant contended thar rhe land which the late Kaijamahe bought lrom Rui,.rrngura is the one occupied by Kanyarnugwite and theretbre the suit land does not form part of the estate olthe late Kaijamahe. - l4l The trial magistrate decided the case in favour of the respondent and made declarations to the effect that the suit property belongs to the estate of the latl Kaijamahe and issued a permanent injunction restraining the appellants fromtrespassing onto the suit land. - t5] The resp:ndents, being dissatisficd with the decision ofthc trial court appealed to the High (lourt on the following grounds:

'1. The leamed trial chicl' magistrate erred in la.,v when hc relied on inadmissible evidence which occasioned a total miscarriage of justice.

2. The learnccl trial C lrict Magistrare "\*.r.ir.d.n "rro, ot ludgnrent when hc ignorcd to consider/evaluate/scrutinize thc entire evidence on a witness by witness basis and by

ignoring to do so, he delivered a lopsided decision which occasioned a total miscarriage of justice.

3. The learned trial chief magistrate erred in law and fact when he ventured into extraneous matters, conjecture and presumptions and resultantly his decision occasioned a total miscarriage of justice.'

[6] The first appellate court found that all the grounds of appeal lacked merit and dismissed the appeal with costs. The appellant has now appealed against that decision on the following grounds:

> '1. The learned appellate judge failed in his duty to subject the pleadings and evidence before him to a fresh and exhaustive scrutiny and thus arrived at a decision which occasioned a miscarriage of justice.

> 2. The learned appellate judge condoned an illegality when he held that objections as to non-payment of stamp duty did not extend to appeal proceedings and thus arrived at a decision which occasioned a miscarriage of justice.

> 3. The learned appellate judge erred in law when he held that the legal requirement of attestation of documents is only exclusive to a WILL and does not extend to exhibit EP2 (a), and thus arrived at a decision which occasioned a miscarriage of justice.

> 4. The learned appellate judge erred in law when he held that the trial court correctly applied S.64 (1) (a) of the Evidence Act in admitting exhibit EP2 (a) through the respondent and thus occasioned a miscarriage of justice.

> 5. The learned trial judge erred in law and fact when he ignored to consider and pronounce himself on the complaints of the extraneous and conjured materials that the trial Court had invited to its aid and thereby arrived at a decision which occasioned a miscarriage of justice.

> 6. The learned appellate judge erred in law and fact when he ignored to consider and pronounce himself on the material

> > Page 3 of 21

departure that there was between the respondent's pleadings and evidence.

7. The learned appellate judge erred in law and fact when he ignored to consider and pronounce himself on the propriety of the appellant's exhibits; ED1, ED2 and ED3 and thereby arrived at a decision that occasioned a material injustice to the appellant.

8. The learned appellate judge erred in law and fact when he ignored to address his mind to the material inconsistencies in the respondent's pleadings and evidence and thus arrived at a decision which caused a miscarriage of justice.'

The respondent opposed the appeal. $[7]$

# **Submissions of Counsel**

- At the hearing the appellant was represented by Mr. Kanduho Frank whereas the [8] respondent was represented by Mr. Ngaruye Ruhindi Boniface. - Counsel for the appellant submitted on grounds 1 together with grounds 5, 6, 7 $[9]$ and 8. Mr. Kanduho criticised the first appellate court for having failed to reevaluate the evidence before it in its entirety. Specifically, he contended that the first appellate court did not take into consideration the evidence of PW2, the brother to the respondent that was to the effect that the suit property was given to the appellant by his father, Baribaana during his lifetime. He also referred to the testimony of the respondent that is in contrast to the evidence of PW2 concerning the size of the suit land. He referred to Kakooza Godfrey v Uganda [2010] UGSC 11 and Tendo Simon Kabenge v Barclays Bank (U) Ltd [2012] UGHC 120 to support his proposition that the first appellate court and the trial court applied the wrong principle of law in evaluating the evidence before them. Counsel for the appellant stated that the evidence of PW2 is consistent with the evidence contained in exhibit ED1 which is to the effect that the appellant's father had a dispute regarding the land with a one Rukunyu which they won and regained the suit land. He was of the view that exhibit ED1 should have been read together with exhibits ED2 and ED3 so as to arrive to a different conclusion.

- [10] Mr. Kanduho also submitted that the first appellate court did not take into consideration the contradiction in the evidence of a one Charles Kaneza and PW1. He was of the view that the contradiction lay in the fact that PW1 testified that on return from exile in 1982, they did not have cows but gave the appellant's father the suit land to graze cows. He was also of the view that the late Kaijamahe did not intend that his brother Baribaana stays temporarily on the suit land owing to the fact that he passed away having not chased him off the land. - [11] With regard to ground 2, counsel for the appellant submitted that payment of stamp duty is a creature of statute that cannot be ignored by the first appellate court owing to its duties. He contended that the first appellate court was wrong in holding that matters to do with payment of stamp duty should not be awakened on appeal since they ought to have been addressed during trial. - [12] While submitting on ground 3, Mr. Kanduho stated that the respondent did not have power to adduce exhibit EP2 (A) into evidence since he was not its author. The document ought to have been attested. Counsel for the appellant contended that the respondent did not meet the three fundamental requirements set out by section 64 of the Evidence Act. He contended that the exhibit was admitted into evidence contrary to section 64 $(1)$ (a) of the evidence Act. Further, he submitted that the document does not indicate the parties between which it was executed and the evidence on record does not explain how the respondent got a hold of the document when he was only three years old. - [13] In reply to the submissions of counsel for the appellant, counsel for the respondent submitted that the trial court went to the locus, observed the witnesses testify and arrived at the right decision. He argued that the appellant being aggrieved appealed to the High court on the same grounds and the High court, being the first appellate court, properly re-evaluated the evidence that was on record and decided in favour of the respondent. Mr. Ngaruye invited this court to maintain the decision of the first appellate court. He submitted that the basis of the decision was on the contradiction in the evidence of DW3 and that of the appellant as to how DW3 acquired the suit land. Counsel for the respondent also submitted that all the witnesses gave evidence to the effect that the late Kaijamahe had given his brother land to temporarily graze on his cattle but did not give him the land as a

gift inter vivos. He was of the view that this can be evidenced by the fact that Baribaana never settled on the land but only used the land for grazing.

- [14] On the issue of admissibility of the impugned document and non-payment of stamp duty on the document, counsel for the respondent submitted that the appellant did not bring the matter to the attention of the trial court. Therefore, the trial court cannot be faulted for admitting such a document into evidence. He submitted that in a number of judgments, courts have been of the view that such an issue is raised as soon as the document is sought to be tendered into evidence and upon failure to do so, the matter cannot be raised on appeal. Mr. Ngaruye submitted that the original copy of exhibit EP2 (A) is in the possession of Baribaana who was supposed to take care of the widow of the late Kaijamahe and his sons. He averred that Baribaana refused to produce the document therefore the document was in the hands of a hostile party or the opposite party since he was a witness to the appellant. He argued that the trial court was right in admitting the secondary evidence on that basis. - [15] On the issue of attestation of the impugned document, counsel for the respondent argued that the law does not envision sale agreements as documents that require attestation since the law usually provides for the mode of attestation for documents that require attestation. Mr. Ngaruye maintained that the document had been proved in the evidence and he went ahead to refer to the evidence of PW1, PW2 and PW3. - [16] Mr. Ngaruye invited this court to dismiss this appeal on grounds of incompetence. He proceeded under rule 43 (3) of the rules of this court. He contended that the appellant did not serve the notice of appeal on the respondent within the time stipulated by the law. He averred that the notice of appeal was filed in court on 18<sup>th</sup> May but served on the respondent on 5<sup>th</sup> June which was out of the seven days provided by the law. - [17] In rejoinder, counsel for the appellant submitted that Baribaana did not keep the sale agreement of the late Kaijamahe. He also contended that it cannot be possible that the respondent, acting as an administrator to the estate of the late Kaijamahe

asked the appellant to vacate the suit land in 2002 yet he had obtained letters of administration in 2005.

### **Analysis**

[18] During the hearing, counsel for the respondent made an informal application under Rule 43 (3) of the Judicature (Court of Appeal Rules) Directions S1 13-10, hereinafter referred to as the Rules of this Court, for this court to dismiss this appeal on the ground of incompetence. Counsel for the respondent alleged that the appellant served the notice of appeal on the respondent out of the time prescribed by the law. He alleged that the notice of appeal was served on the respondent on 5<sup>th</sup> June 2015 whereas it was filed in court on 18<sup>th</sup> May 2015. Rule 77 (1) of the Rules of this court provides,

> 'An intended Appellant shall before or Within seven days after lodging a notice of appeal serve copies of it on all persons directly affected by the appeal but the court may on application which may be ex parte direct that service need not be effected on any person who took part in the proceedings in the High Court.'

- [19] These provisions are mandatory. See Horizon Coaches Ltd v Francis Mutabazi & 3 Others [2002] UGSC 43. However, there is no evidence on record to support the allegations by counsel for the respondent that the respondent was served the notice out of time. Besides, there is no justifiable reason as to why the respondent has taken such a long time to make this application. It is in the interest of justice that this appeal should be heard and determined on its merits. - [20] Turning to the appeal, I am mindful of the duty of this court as a second appellate court set out in Rule 32 (2) of the Judicature (Court of Appeal Rules) Directions SI 13-10. See Chogm Tour Agents 2007 (U) Ltd v Masaka Municipal Council Local Government [2011] UGSC 4. In Kwoba Vs Ssebugwawo [2019] UGCA $\overline{2}$ , this court stated:

This being a second appeal, we shall start by stating the scope of the 2<sup>nd</sup> appellate court as discussed in the case of Milly Masembe v Sugar Corporation and Anor, Civil Appeal No. 01 of 2000, where Mulenga (JSC) stated that;

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'In a line of decided cases, this court has settled two guiding principles as to its exercise of this power. The first is that failure of the appellate court to re-evaluate the evidence as a whole is a matter of law and may be a ground of appeal as such. The second is that the Supreme Court, as the second appellate court, is not required to, and will not re-evaluate the evidence as the first appellate court is under duty to, except where it is clearly necessary.' (emphasis added)

Further, it was held in the case of in Kakooza Godfrey v **Uganda, SCCA No. 3 of 2008** where it was observed that:

"As a second appellate court, we are aware that the two lower courts reached concurrent findings of fact... we can only interfere in those concurrent findings if we are satisfied that the courts were wrong or applied the wrong **principles of law.** (Emphasis added)"

[21] Bearing the above in mind, I shall proceed to consider the grounds of appeal.

### Ground 2

[22] Counsel for the appellant faults the High Court for holding that an objection to the payment of stamp duty does not extend to appeal proceedings. He contended that the admission of exhibit EP (2) (a) into evidence was contrary to section 42 of the Stamp Duty Act, Cap 342, because stamp duty was not paid on the document. Section 42 of the Stamps Act provides:

### '42. Instruments not duly stamped inadmissible in evidence, etc.

No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of the parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person, or by any public officer. unless the instrument is duly stamped; but—

[23] It is a settled position that an instrument on which a duty is chargeable is not admissible in evidence unless that instrument is duly stamped as an instrument on which the duty chargeable has been paid. See Yokoyada Kaggwa v. Mary Kiwanuka & Another [1979] HCB 23. Exhibit EP2 (a) is a copy of the sale agreement between the late Kaijamahe and Rukangara. It was adduced into evidence by the respondent. Indeed, it is an instrument chargeable lvith starnp duty under section 2 ol the Act but there is no indication that the stantp dury was paid on the docurnent. I agree with the High Court tl.rat objections to do rvith inadnrissibility of a document for rvant of stamp duty shor.rld be {irst raised befbre and decided by the trial colrrt when the docurnent is souglrt to be prrt in evirlcnce. This would enablc the couft to order the opposite party to pay the dr,rty chargeable in case no duty had been previously been paid. See Dietcr Pabst v Abdu Ssozi & Anor Court ol Appeal Civil Appeal No. ll6 of 2000 (unreporled) Amarna Mbabazi v Mtrsinquzi and Anor, Court of Appcal Election Petition Appeal No. l2 of 2002 (unreported).

[24] As the appellant tjrst raiserl this point on appeal rather than with the trial cou1t, I find no reason to interfere with the decision of the High Court. Ordinarily this court will not entertain a new point of law that was not argued before the trial o court. See Fenekansi Sernakula v Ezekiel S. M. S. Mulondo I1 98sl H. C.8.29

## (lrorrnd 4

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- [25] The appellant faults the appellate court for holding that the trial court correctly applied section 6a ( I ) (a) of the Evidence Act, Cap 6, in admitting Ep2 (a) through the respondent. - [26] Under section 60 of the Evidence Act, the contents of documents may be proved either by primary or by secondary evidence. However, the general rule under section 6l of the Act is that documents must be proved by primary evidence except in the instances provided by the larv. Section 64 of the Act sets out circumstances when secondary evidence of clocuments may be admitted. In particular, Section 6a (l) (a) ofthe Act provides:

64. Cases in u,hich secondary evidence Lelating to documents may be given.

(l) Secondary evidencc may be givcn ol the existence, condition or contents of a document in the fbllor,ving cases\* (a) rvhen the original is shown or appears to be in the possession or power of' the person against r.vhom thc document is sought to be proved, or of any person out ol' reach of, or not subject to. the process ofthe court, or ofany

person lcgally bound to protluce it, and rvhen, atler the nt>tice mentioncd in section 65, that person docs not produce it:

- [27] This section has 3 main circurnstances rvhere the requirement of the original or primary evidence may be dispcnsed with. These are where the docunrent is in possesslon ofthe adversary who refuses to produce it on notice; where the original is in the possession oIa persor-r or.rt of thc reach of court and its processes or where the original is in the hands of a person legally bound to produce it but does not do so after being given notice. - [28] In the proceedings of l6'r' February 2012, counsel lor the respondent sought leave to adduce a photocopy of the land sale agreement on the ground that thc original was in possession of Baribaana, the appellant's father. Counsel lor the appellant objected to the admission of the document on the ground that the appellant and his lather were two different persons and prayed that the trial coutl compels Baribaana to produce the docurncnt. Basing on the testirnony of I'}W I that the document wtrs in possession of the respondent's father, who rvas a witness for the respondent and that he had power to deny him access, the trial court ruled in tavour of the respondent and the document was admitted into evidence as EP2 (a) and the translated version as EP2 (b) utrder section 6a(l) (a) of the Evidence Act. - [29] I would disagree with the findings of the trial court and the High Court as this was not one .rf the instances providecl for undel section 64 (a). Baribaana William ought to have been compelled to produce the document in court but the trial court O took no steps to that effect. Further, in his testimony he denies having custody of the document which is not disputed by the respondent. The documents were not approved in accordance with the law and should not have been admitted in evidcnce. - [30] I would therefore uphold ground 4. Conseqrrently, it is unnecessary to consider groun{ 3, The question that now arises is whcther after excluding cxhibits EP (2) (a) and (b) would it alter the final decision of both the trial court and the Fligh Court on appeal? I will ar.rswer that question atter considering grounds l' 5' 6,7 and 8.

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## Orounds 1,5,6,7 and 8

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- [3 ll 'Ihe appellant fatrlts the first appellate- court fbr failing to subject thc eviclc6ce betbre it. to a fresh and exhaustive scrurtirly. The record contains the evidence of PWl, PW'2, PW3, DWl, DW2, DW3 and the proceedings at the locus. As <sup>a</sup> second appellate court this court will not ordinarily interf'ere with the concurrent findings ol lact ol both the trial court and the lirst appellate court unless special circumstances justifu doing so. Special circumstances would include failure of the Iirst appellate court to exercise its responsibility in re-evaluating the evidelce before the trial court and reaching its own conclusions. It is important to bear in mind though that this must relatc to the grounds raised on appeal before it. - [32] In the appeal befolc the first appellate court grounds 2 and 3 were in relation to the alleged failure ofthe trial court to evaluate judiciously the evidence on recorcl and thereby arriving to a wrong decision. And now it is contended that the first appellate court failed in its duty to re-evaluate the evidence on record and arrive a[ its own decision. We shall exaurine how both courts dealt with the evaluation of evidence on record. - [33] The trial court formulated 3 issues for decision. Firstly, whether the land in dispute was part of the estate of the late Kaijamahe Bonif'ace. Secondly whether the defendant trespassed on the suit land. And thirdly remedies. This is how the trial court dealt with the first issue.

'The det'ence witnesses agree with the plaintitl-s witnesses that the late Kaijamahe bought land tiom one Rukangura. The agreement was tendered in court as EP 2 (a) and it,s English translation was tenclcred as EP (2) (b). In the agreenlent the land was mentioned to be situated in Kanyaburezi. The plaintills witnesses restified that the othcr land olKaijamahc was situated at Kyensharna and and not at Kanyabulezi. PWI ar rhc locus in quo showed the couft the valley separaling the 2 villages. Part ofthe land of the late Kaijanrahe neighbours the land in dispute but which is no given to Kinyamagwite as his share was shown by him

to be in Kycnshama villago. ln an attempt on the other hand by det'ence witnesscs to try to shorv that thc suit lancl is not what \^'as bought hv Kaijanrirhc fiom Rukungura thcll told the colrrt that the land he bought trom Rukangura is thc one now bcing occupied by Kanyamagwite. fhis land being occupicd by Kanyarnagwite is not in Kanyamulezi but is in Kyekarna.

The claim hy DWI Kakunguru that lhc land being occupicd by Kinynmagwitc is in Kanyabulezi and that the vallcy separating the 2 cells is another valley alier the one shorvn by PWI cannot be accepted. Ilis evidence was sharply contradicted with the evidence of his own witness DW2 who said the boundary betwcen the 2 villages is the t'ence between Rufrumuka and Kinyamagwite. 'fhat Kinyamagrvite is'in Kanyamulezi while Ruliumuka is in Kyekyama. lf the evidence ot' DW2 was to be believed. that would mean that cvcn the part of the land rvhere Tumwine Anthony is, is in Kanyamulezi which is not.

To turthcr prove that tl.re det'ence witness were not telling the truth DW2 told the court that Ruliumuka is in Kyanshana rvhilc kaurungu said he is in Kanyamulezi. Rufrumuka was the Secretary of LCI Kyenshana cell, it is not possible for hirn to stay in Kanyabulezi village.

'fo lurther prove that the defence witnesses were not tellin-q the truth, they said voters liom Kanyamulezi vote in Kyenshana. '[his is not possible. All these lies were itr attempt to show that the land Kinyarnagwite is occupying is situated in Kanyamulezi when actually it is in Kyenshana village.

DWl, Kakunguru tricd to tell the court tliat Kyenshana was a crcation or breakaway tiom Kanyamulezi. LIe was disproved by his orvn witncss who said Kyenshana was there as lar back as 1962. lhis confirms rvhat is stated in EP 2 (a). Therelbre since thc land Kaijamahe bought was situated in Kanyabulezi it lvas clear that it rvas the sttit lancl.

Both DWI and [)W2 tricd to lic to tl]e court tl.]at between the land hc bought liom Rukangura and the llncl he o

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acquircd by I't occr.rpation, thc 2 pieces are not connected. I)W2 said therc was one Mugrbo in between. I)Wl on the other hand said the 2 pieces o1'land werc only connectcd by a cattlc path measuring 6 feets (sic) wide. When the court went to the place, DWI tailed to show the cattlc path measuring 6 fect. ]'hc land ot' Kinyamagrvitc connecting to the land ol Tumlvinc Anthony the land is rnore than 100 nletres in width. T he 2 witncsses were both lying to the court-

I have Ibund it morc probable thar the plaintilT cvidcnce w.as the truth also becausc Kaijamahe was the elder brother of Baribaana. lle r.vas thc onc- who went to Kazo first. It was theretore more prohable that he invited Baribaana and gave him the suit land to grazo his cow temporally (sic).

Baribaana has never lived on this land personally. The argument by counsel fbr the dcfendant that there was a well on the land being occupied by Kanyamagwite called Rwakanini, this well was disputed by DWl. I am theretbre in agrcement with the plaintilf that it was Kaijamahe who first acquired the suit land and allowed his brother Baribaana to sue for grazilg.

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Counsel tbr the delendant submitted that even if Kaijamahe gave the land to Baribaana to graze, the estate cannot claim it due to time limitation.

I do not agree. The stay on the land from 1986 up ro the year 2002 was with the pennission of Kaijamahe. It was in 2002 when Kakunguru started laying claims over the land and the plaintifts started dernanding lbr the land that is when the time started running. Thc suit was filed in 2005 before <sup>3</sup> years after the trespass started. In any case trespass is a continuing tort.

What Kaijamahe did was to give a Iicense to Baribaana and this licence expired on his death. After his death the land reverted back to his estatc. I r.., ill therefore find that thc suit land belongs to the cstate o1'thc latc Kaijamahe.'

[:]al The l-ligh Court, in its jtrdgment, reminded itself of its duty to subject thecvidence in this case to a fresh appraisal to arrive at its own conclusions. In considering ground 2 of the appeal the couft noled, intcr alia,

> '[28j Thc [irst three (3) pages ofhisjudgment are a caretul analysis ol'the evidcnce on court recorrl. Admittedly the lcamed trial Chicf Magistratc did not ref'er to each witness separately, but his overall evaluation o1'the evidence betbre him was propcr.

> [29] This court does not find merit in this ground ofappeal and it accordingly lails.'

- [35] The complaint in this ground hacl been that the learned Chief Magistrate <sup>h</sup> "p ignored to consider / evaluate / scrutinise the entire evidence on a witness by witness l;asis and by ignoring to do so, he delivered a lopsided decision which occasior,-.1 a total miscarriage of justice.' - [36] It appears to me that the cornplaint under this ground was more of a cornplaint about style rather than substance. The contention lor the appellant seems to be that the Chiel Magistrate ought to have tlrst set down the testimony of all witnesses before evaluating the same. We have set out above the portion of the judgment of the trial court that assessed the evidence in the case and the decision of the court on such evidence. The learned Chief Magistrate had initially set out the case lor each party. After evaluation olthc evidence olthc case, he concluded thar the caso for the piiintiff was more probable than the case tbr the appellant. He found tha? the defence witnesses told a number of lies on crucial aspects of the case and were not credible. The High Court was unable to fault his reasoning and conclusions of fact. - [37] I am unable to lautt the High Court in relation to its handling of this ground. -fhe ground's thrust was rnorc to style rather than to a failure to evaluate evidence. To determi;.: this ground did not call flor a re-evaluation of the evidence. One had to determit , if the style adopted by the learnecl trial Chief Magistrate was wrong or not. The Fligh Court concluded that it was not wrong in law. I would not lault both the High Court and the trial court.

[38] Tunring to the last ground of the appeal in tne Ltigtr court, the complaint was that the Chief Magistrate encd in larv and fact 'when he ventured into extraneous matters, conjccture and presumptions and resultantly his decision occasioned <sup>a</sup> total nriscarriage of justicc.' This ground does not point out the extraneous matters, the conjecture or plesumptions' that thc leamed Chief Magistrate waded into.

[39] The ]ligh Court dealt wirh the sarnc in the follo'"ving worcls,

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'[30] Alter pcrusing the strbmissions olboth counsel on the issue. I lind it pertincnt to reproducc the decision of the lcarncd trial Chicf Magistrate on thc issue ol' tr.ospass he lound as tbllows; "As indecd pointed out whilc resolving issue No. I rvhereas the I't occupation ofthe land was with the consent of Kaijamahe alter his death and when thc plaintilfs started demanding for the land and the Defendant slarted asserting dwnership on the land and continued to stay on the land without the consent of Administrators of the Estate of the late Kaijarnahe that action amounls to trespass. I will therelbre find that the def'endant trespassed on the suit land."

[31] The above findings by the leamed Chief Magistrate are well supported by the evidence that was before hirn and cannot bc said to be liom an extraneous source.'

[40] It appears to me that the High coun on grounds 1, 5,6,7 and 8 is being attacked for its handling ofgrounds 2 and 3 before it. I need to point out that whereas of course the triat .judge is required to reconsider the evidence aiiesh and reach its own conclusions, it does so in light of the grounds of appeal put forth by the appellant or the parties. It is not that on every appeal the first appellate court must test every issue decided below. The first appellate court decides the appeal in light of the complaints put forth by the parties. It is in that regard that it re-considers the evidence and or tl'rc law in regard to thc matters complained of in order to reach its own c-.-tclusions. [t rnay well agree with ttre trial court or disagree with the trial court 1br reasons it u,ill provide.

- [41] All the three grounds of appeal before that court were quite specific to particular issues and I would not fault the High Court for having dealt with them in the manner it did. I do not find that the High Court was obliged to re-evaluate the evidence adduced in the trial court and reach its own decision on issues that were not complained about in the grounds set forth by the appellant before it. - [42] I need, however, to address the effect of the exclusion of exhibits EP (2) (a) and (b) from the evidence and whether that leaves the decision as to who is the owner of the suit land intact. I have looked at the evidence on record and I am satisfied that apart from that agreement there was ample evidence to support the findings of both the trial court and the High Court as to ownership of the suit land. - [43] Tumwine Anthony, the respondent (PW1)'s testimony was to the effect that his father, the late Kaijamahe Boniface acquired the suit property in 1975 by first occupation. In 1982, his father left the land vacant following the Banyarwanda being chased away from the area. He consequently returned on the land either in 1986 or 1987. When he returned, he permitted his brother Baribaana William to use the suit land for purposes of cattle grazing. The brother sent Kabeera, a porter to take care of the cows. However, upon the death of his father, Baribaana William brought the appellant on to the land who connived with the LCIII chairman Burunga sub-county to continue staying on the land. PW1 also stated that his family has a separate piece of land in Kyeshama cell that is next to the suit property that is located in Kanyabulezi. - [44] On cross examination, PW1 stated that his father did not chase away Baribaana William's cows from grazing on his suit land because he had permitted him to do so but temporarily. He also stated that at one time a one Kanini fraudulently sold part of the suit land to a one Rukangara but upon realization, the latter sold the land back to his father thus the impugned sale agreement. He stated that the boundary of the other land owned by his father is different from that one of the suit property and that the land that his father gave temporary access to Baribaana William is the same land being occupied by the respondent. - [45] PW2, Charles Kaneza, in his testimony stated that he was present when the late Kaijamahe Boniface bought back the suit land from the late Rukangara and when he allowed Baribaana William to graze his cattle on the suit land. He stated that Baribaarra did not occup]- the land but only used it for graz.ing his cattle with the help ol ri portcr. LIe testificd that the responrlcnt calne on to thc suit property in 1996 to take cere of the corvs which rvere being rnismanaged by the herdsrnan.

146] Upon cross exlr.nination, PW2 state(l that hc knows the circunrstances under which the late Kaijamahe Bonif-ace brought Baribaana William on the suit land. FIe went on to state that this was follorving thc chasing away of thc Banyarwanda in 1982. That upon their retum, they did not have cows so the late Kaijarnahe Bonilacc allowed llaribaana to ternporarily graze his cattle on the suit land. [Ie stated that after the death oftheir father, the rcspondent wanted to chase away the appellant fiom thc suit land so that the land could be divided amongst the beneficiaries. PW2 statcd that he was not aware that the appellant had litigated with Rukunyu over the suit land. FIe also stated that Baribaana did not set up a lromestead on the suit land save fbr a kraal for the herdsman.

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- [47] PW3, Kanyamugwite John Bhptist, testitled to the effect that the late Kaijamahc Bonitace bought the suit property from Rukangura in 1975. He planted matooke and buii, a well on the land and would also use the land for grazing cattle. When the Banyarwanda were chased away in 1982, the late Kaijamahe went to <sup>a</sup> settlement in Toro. When they retumed in 1986, Baribaana asked the late Kaijamahe Boniface to lend him a piece of land where he would graze his cattle. The late Kaijamahe lent him the land and the appellant's father brought a porter on the land. At the time the late Kaijarnahe Boniface passed away in 1998, the respondent was in occupation of the land. He stated that the respondent was brought onto the land by Baribaana and at the time that the late Kaijamairc Boniface was elderly and sickly. - [a8] On cross examination, PW3 stated that hc did not know of the agreement between the late Kaijamahe Boniface and Baribaana tbr Baribaana to Eraze on the suit land. FIe stated that the demarcations of the land his father gave to Baribaana to use are still visible and the appcllant has not gone beyond them. LIe also stated the land his f'ather bought frorn Rukangura has a well but he does not know if it is called li.wakanini but it is cared lor by the appellant. He stated that Rukunyu is tlre neighbor to the suit land and that when they w'ere chased away he tried to grab the

land. He also mentioned the land dispute between Baribaana family's family and Rukunyu.

- [49] DW1, Alex Kakurungu in his testimony stated that the suit land belonged to his father Bacibaana William, who acquired it in 1975 as a first occupant. He stated that he has been occupying the suit property since 1975 together with his mother and late brother Rwabukumba. That at that time, his father had two wives therefore he shifted the family of his mother to the suit property while the second wife was left in Kashiri. He denied having knowledge of the late Kaijamahe Boniface buying the suit land from Rukangura. He stated that the family of Rukangura settled in Kanyabulezi in 1975 but not on the suit land. PW1 stated that the land that the late Kaijamahe bought from Rukangura is the one occupied by Kanyamugwite and does not form part of the suit land. He also stated that upon their return from the exile of 1982, they found that Rukunyu, the then sub county chief had occupied their land which prompted his elder brother Rwabukumba to file a case against him in the LC11 court. He stated that the LC111 concluded the matter wherein it was agreed that the parties share the land and that Rukunyu gave his share of the land to his son who in turn sold it to him in 2002. He stated that neither did the late Kaijamahe object to the sale nor object to his ownership of the suit land. He consequently registered the land in 2003. - [50] On cross examination, he stated that his father gave the suit land to him, his mother and brother, at the time he was only 11 years and nothing was documented. He also stated that before his brother Rwabukumba passed away in 1998, he filed a case against Rukunyu in the LC1 but lost the case. He appealed to the LC11 but the brother passed away before the appeal was heard and that the case was finally decided by the chairperson LC111 together with LC1 and the natives. DW1 stated that his father was the first to go to Kanyabulezi as at that time the late Kaijamahe was staying in Kyeshama. The late Kaijamahe Boniface bought his land from Rukangura after he had settled there. He also stated that his father did not keep any documents for the late Kaijamahe. He further stated that the late Kaijamahe is the one who invited his father to go and acquire the suit land since he was staying in Kyeshama and his father in Kashiri. He stated that the suit against Rukunyu was filed in 1982.

[51] DW2, Eric Kalengera stated in his testimony that the suit property is owned by Baribaana and he acquired it by first occupation in 1975. He stated that the appellant came onto the land with his father. He also stated that the land which the late Kaijamahe bought from Rukangura is the one occupied by Kanyamugwite. Upon cross examination he stated that he went to Kyeshama in 1964, that Baribaana was not invited to Kanyabulezi by the late Kaijamahe and that Baribaana went to Kanyabulezi before the late Kaijamahe. He also stated that Kaijamahe acquired the land in Kyekyama in 1974 while the one in Kanyabulezi he bought it later. DW2 denied the allegation that the late Kaijamahe Boniface and Baribaana bought the suit land together and shared it.

$\lambda$

- [52] DW3, William Baribaana stated that he applied for the suit land in 1975 and gave it to his sons to stay thereon. Therefore that the suit land did not belong to the late Kaijamahe Boniface. He stated that the late Kaijamahe had another piece of land behind the hill far from Kanyabulezi and did not have any land in Kanyabulezi. He also stated that the land Kaijamahe bought from Rukangura, neighbours the land in dispute. He is the one who applied for the land in Kanyabulezi and gave it to his sons to stay. - [53] On cross examination he stated that he is the one who first occupied the suit land and did not apply for it because he was a first occupant. That when he settled in Kanyabulenzi, Kaijamahe had already settled in Kyeshama which is behind Kanyabulenzi and that there is a long distance between the two cells. He also stated that the suit land belongs to him and not the appellant and that Rwabukumba first occupied the suit land and the appellant went to the suit land when he married. On re-examination he stated that the land the late Kaijamahe bought from Rukangura neighbours his land in Kanyabulenzi. - [54] DW4, Asiimwe Keret, the sub county chairperson stated that the appellant is a resident of Kanyabulenzi while the respondent is a resident of Kyeshama and that both Kyeshama and Kanyabulezi are in Rwigi and Burunga parish and they neighbour each other. He testified that the suit property is owned by the appellant and that he is the one who handled the dispute between Rukunyu and the respondent. DW4 stated that Rukunyu requested him to settle the dispute and it was agreed between the parties that they were to divide the land amongst themselves and this was done before fellow village mates. He stated that Rukunyu

Page 19 of 21

later sold his share to the appellant and he did not get any objections liom neither the respondent nor his urother. On cross examination, he stated that the respondent and his mother w'r:rc n()t prcsent et thc time of the sub division olthe land and that he did not invite thern. Fle also testifled that he only got to know about the suit land when Rukunyu told him that he was disputing over the sr.rit land ',vith the respondent.

- [55] Whenth^ffialcourtvisitedthelocusinqtto,thetrialcourlcalledbackPWl,DWl and DW2 to give evidence. The trial court rnainly relied on the proceedings at the locus in quo to cotne to tl-re decision thiit the case of the respondcnt carried tnorc weight. The first appellate court concLu'red with the findings and I find no reason to depart from those tindings. There rvere contradictions between the evidence ol-DWI and DW2 whcn court visited lhc locus in quo which rendered the appellant'su ' case that the land that the late Kaijamahe is the one occupied by Kyamagrvite not credible. The contradictions pointed out by counsel for the appellant are minor and can 5e ignored. As submitted by courtsel lor the appellant, the evidencc o[ PW3 do"s not support the respondent's case and neither does the evidence of PW2 point to Baribaana being the owner oIthe suit property. - [56] Both witnesses for the appellant and the respondent agreed that the late Kaijamahe had bought land from Rukangara. The point of disagreement was whether it was the suit land or the land occupied by Kyamagwite. On a visit to the locus in qctu and after hearing further evidence from PWl, DWI and DW2 the learned trial Chief Magistrate concluded that the appellant / defendant's contention that the land occ,rpied by Kyamagwite is the land the late Kaijamahe bought frorn Rukangara is falsc for reasons that he provided. He tbund the defendant's witnesses unreliable and contradictoly. He conclr.rded that they were telling lies. He tbund that the land bought by the late Kaijamahe was the land now occupied by the appellant in Kanyabr.rlezi and it belonged to the estate of the late Kaijamahe. t - [57] I would uphold the concurrent findings of the learned Chief Magistratc and the High Courl in this regard that the suit land belongs to the estate of the late Kai.larnaire and the appellant is a trespasscr thereon.

- [58] In conclusion I tlnd no reason to fault the lindings of the first appellate court. (irounds <sup>I</sup>, 5 , 6,7 ancl 8 are ans,,vered in the negative. I am also satisfierr that even if one excluded exhibits EP (2) (a) and (tr) ti'om the respondent's case it would not alter the result. There is other sulficient evidence to support the holding of the trial coutt and first appellate court in.frnding for the rcspondent rather than lor the irppellant. - [59] As the appellant has succceded on grountl 4, i would dismiss this appeal in relatior.r to all grounds save for ground 4 and would awardTlS olthe respondent's costs to the respondent on appeal and costs in the courts below.

#### l)ecision

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[60] As Musota, JA and Kasule, Ag. JA, agree this appeal is dismissed save for ground 4 which succeeded. The appellant shall pay 7/8th of the responclent's costs on . appeal ard the costs in the court below to the respondent.

Signed, dated and delivered ar Kampata,n,, I /If, ", 4 ut\*, 2o2o . J clrick E da-Ntende Justice of Appeal

# THE REPUB:LIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

# Civil Appeal No. 95 of 2015

(Arising from High Courl Ciuil Appeal No. 041 of 2O12 at Mbarala)

Kakurungu Alex Appellant

# a Versus

Tumwine Anthony Respondent

Hon. Justice F. M. S. Egonda-Ntende, JA Hon. Stephen Musota, JA Hon. Justice Remmy Kasule, Ag. JA Coram:

# Judgment of Remmy Kasule, Ag. JA

I have had the bcncfit of reading through the clraft Juclgtnerrt\_ prepared by my brother Hon. Justice Frederick Egonda-Ntende, JA.

I agree with his ana-lysis of the evidence and reached of dismissing the appeal. the conclusion he has

I also agree with the orders he proposes as to useful to add. costs. I have nothing

Signed, dated and delivered ert Kampala this le fL day

o AU .......2020.

o

R mmy asu

Ag. Justice ofAppeal

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 95 OF 2015

(Arising from High Court Civil Appeal No. 041 of 2012 at Mbarara

[CORAM: Egonda-Ntende & Musota, JJA and Kasule Ag. JA]

### KAKURUNGU ALEX ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

TUMWINE ANTHONY ::::::::::::::::::::::::::::::::::::

### JUDGMENT OF STEPHEN MUSOTA, JA

I have had the benefit of reading in draft the judgment by my learned brother Fredrick Egonda-Ntende, JA. I agree with his analysis and finding that there was ample evidence to support the findings of both the trial court and the High Court as to the ownership of the suit land even if one excluded Exh. EP (2) (a) (b) from the respondent's case.

The concurrent findings of the leaned Chief Magistrate and the High Court that the suit land belongs to the estate of the Late Kaijamahe and that the appellant is a trespasser thereon is upheld. Accordingly, this appeal is dismissed in the terms proposed by my learned brother Fredrick Egonda-Ntende, JA

Dated at Kampala this $18^{\text{th}}$ of 2020

En Dundtur

**Stephen Musota** JUSTICE OF APPEAL