Kasakya Musa v Masaba Isimairi (Civil Appeal No. 0121 of 2014) [2021] UGHC 72 (31 August 2021)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT MBALE**

**CIVIL APPEAL NO. 0121 OF 2014**

**(ARISING FROM LAND SUIT NO. 41/2011)**

**KASAKYA MUSA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

**VERSUS**

**MASABA ISIMAIRI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**BEFORE HON. JUSTICE SUSAN OKALANY**

**JUDGMENT**

1. This is an Appeal against the decision of Her Worship Catherine Agwero, Grade 1 Magistrate at Mbale, delivered on 11th July 2014 seeking for the orders that: 2. The decision of the lower Court be set aside; 3. This Appeal be allowed; and 4. The appellant be granted costs here and in the lower Court. 5. The grounds of the appeal are that : 6. The trial Magistrate erred both in law and fact in that she did not evaluate the evidence; 7. The trial Magistrate erred both in law and in fact when she held that the appellant did not present enough evidence to prove his case; 8. The learned trial Magistrate erred both in law and in fact when she believed a forged sale agreement in favour of the appellant and disregarded the letters of administration in respect of the suit property thus arriving at a wrong conclusion; 9. That the decision of the learned trial Magistrate has occasioned a miscarriage of justice; and 10. That the decision of the learned trial Magistrate is tainted by the fundamental misdirection of the law and on the facts.

**BACKGROUND OF THE CASE**

1. The respondent/plaintiff, brought Land Suit No. 41/2011 against appellant/defendant, for recovery of the suit land measuring 48ft x 24ft, situated at Bugema village, Bungokho along Mbale – Tororo road and prayed for general damages, special damages and costs of the suit *inter-alia*. He claimed that the suit land was purchased on 18th August 1979, from a one Hajji Muhamadi Hiire by his father Alhaji Sulaiman Masaba at a consideration of 50,000/= and an agreement was made to that effect. That the appellant trespassed on the suit land on 15th May 2008 and constructed a permanent house in front of the respondent’s semi-permanent house. He asserted that the appellant was served with notices in vain directing him to stop constructing buildings on the suit land and from using the said land. 2. The appellant denied trespassing on the respondent’s land, stating that the land in dispute belonged to Hajji Zedi Hiire who passed it on to Yusuf Miya and to him as a gift *inter vivos*. He additionally stated that he had been in possession of the said land since 1997. It was his assertion also that the respondent had falsely claimed to have purchased the land in 1979 from Hajji Muhamadi Hiire. He prayed for the dismissal of the suit with costs. 3. During scheduling, the following issues were raised for determination: 4. Who is the rightful owner of the suit land; and 5. What are the remedies available 6. The trial Magistrate upon evaluating the evidence and visiting the locus in quo gave judgment in favor of the respondent with the following orders: 7. An order declaring the plaintiff the rightful owner of that part of the suit land from Tororo-Mbale road to the East, the mango tree on the West and on the North and South, the cemented veranda of the disputed semi-permanent house; 8. An order that the other part of the land from the mango tree to the boundary which contains a banana plantation, belongs to the defendant; 9. An order awarding general damages of UGX 3,000,000/= to the plaintiff; 10. An order that part of the defendant’s permanent building, which is on the suit land that has been decreed to the plaintiff be demolished henceforth; and 11. Costs.

**REPRESENTATION OF THE PARTIES.**

1. Mr. David Musolwa represented the appellant, while Mr. Madaba represented the respondent. Both parties filed written submissions.

**SUBMISSIONS OF COUNSEL.**

*Grounds 1 and 2*

1. Counsel for the appellant in his submissions agreed with the Magistrate in respect to the test that has to be applied on the burden of proof in civil cases, but disagreed with her for what he believed to be her failure to apply the same test to the present suit. Mr. Musolwa submitted that the respondent’s witness Alhaji Sulaiman Masaba had testified that he bought the suit land from Muhamadi Hiire on 8th August 1979 and later gave it to the respondent and that most of the witnesses to the purchase transaction had already passed away. 2. Counsel submitted that whereas the said witness had testified that the agreement of purchase was written by Kamba, the respondent never called the said Kamba to testify and be cross-examined on the authenticity of the said agreement, neither was the said agreement exhibited by the respondent, although it was tendered for identification only. Mr. Musolwa faulted the learned Magistrate for relying on a document that was not properly adduced in Court by the party that sought to rely on it. He cited the decision in the case of ***Twine Amos versus Tamusuza James CR 11/2009***, to support his contention.

*Ground 3*

1. Counsel insisted that the trial Magistrate had erred in considering the sale agreement tendered in Court although not exhibited in favour of the respondent, instead of accepting the appellant’s evidence, which showed that his father distributed the suit land to the appellant and his siblings. He further submitted that the trial Magistrate did not consider that the appellant had been in possession of the land in dispute for the last ten (10) years. That the seller had no capacity to sell the land in 1979, since there was already an appointed administrator who was appointed in 1978.

*Grounds 4 and 5*

1. Mr. Musolwa submitted that PW3 - Usiki Kulusum was allowed to testify at locus in quo without seeking the leave of the court to do so, thus reopening the respondent’s case, which act was detrimental to the appellant. It was his argument that since the trial Magistrate had relied on the sale agreement in issue as well as Usiki Kulusum (PW3’s) testimony to arrive at her decision, it was upon this Court to either expunge the locus in quo proceedings from the record or order that a fresh locus visit be conducted because the locus in quo conducted by the lower Court departed from land Practice Directive No. 1 of 2007. In the alternative, he asked that this Court grants a retrial.

**RESPONDENT’S ARGUMENTS IN REPLY**

1. Regarding grounds 1 and 2, counsel Madaba submitted to the effect that the respondent did not undertake to reproduce Kamba as a witness in his case but only mentioned his name as the author of the sale agreement. That the said agreement was presented to the Court by the respondent who was cross-examined on it. According to him, the fact that the sale agreement was not exhibited in evidence, does not mean that Court cannot rely on the said document. He further submitted that the trial Magistrate did not solely base his findings on the said agreement but had also relied on the oral evidence of the respondent, his witnesses and the evidence that was gathered at the locus in quo. 2. Concerning ground 3, it was Mr. Madaba’s submission in regard to Mr. Musolwa’s contentions on the authenticity of the sale agreement, dated 18th August 1979, that the issue was never brought up in the trial Court, neither was it put to either the respondent or his witnesses in cross-examination. It was his argument therefore that Mr. Musolwa’s submission in regard to the forgery of that agreement was baseless since the sale agreement was never discredited. 3. Furthermore, Mr. Madaba submitted that the evidence of the appellant regarding the property having been sold off in 1979, corroborates the respondent’s story about its sale. Mr. Madaba argued that Mr. Musolwa’s submission that the suit property had an administrator at the time it was sold in 1979, should be disregarded by this court, since he was introducing new evidence without the leave of Court. 4. Regarding ground 4, it was submitted for the respondent that the locus in quo proceedings were properly conducted despite the fact that PW3 – Usiki Kulusum testified at locus in quo. To buttress his point, he cited the case of ***Kaahwa Stephen & Anor Vs Kalema Hannington HCCA No. 007 of 2011(Unreported),*** in which the procedure to be followed at locus in quo was outlined. It was also submitted for the respondent that PW3 – Usiki Kulusum was cross examined by counsel for the appellant and no objections were raised then. That therefore, the locus in quo proceedings were properly handled.

**DETERMINATION**

1. I have considered the grounds of appeal, the record and decision of the trial Court, the submissions of counsel and the law applicable. 2. The duty of this Court as a first Appellate Court is to re-appraise all the evidence on record and re-subject it to a fresh and exhaustive scrutiny with a view of reaching its own independent conclusions. However, in doing so, this Court should be mindful of the fact the lower Court had the opportunity to observe the credibility and demeanor of the witnesses as they testified, which benefit the Appellate Court does not have. ***(See******Kifamunte Henry versus Uganda, S. C. C. A No.010 of 2007).***

***Grounds 1 and 2:***

1. ***That the trial Magistrate erred both in law and in fact when she didn’t evaluate the evidence.*** 2. ***The trial Magistrate erred both in law and in fact when she held that the appellant did not have enough evidence to prove his case.*** 3. On the contention that the trial Magistrate had wrongfully relied on a sale agreement between the Alhaji Sulaiman Masaba and Muhamadi Hiire in favor of the respondent, Mr. Madaba’s response was that the trial Magistrate did not base his decision on only the said agreement but also considered the oral evidence adduced by the respondent’s witnesses and the evidence gathered at the locus in quo. On perusal of the judgment of the lower Court, it is clear to me that the trial Magistrate did not rely on the sale agreement at all, but rather based her decision largely on witness testimonies and on her findings at the locus in quo. 4. Direction No. 3 of Practice Direction No. 1 of 2007, provides that during the hearing of land disputes, the Court should take interest in visiting locus in quo, and while there: 5. *Ensure that all parties, their witnesses, and advocates if any are present.* 6. *Allow the parties and their witnesses to adduce evidence at the locus in quo.* 7. *Allow cross examination by either party, or his or her counsel.* 8. *Record all the proceedings at the locus in quo* 9. *Record any observation, view, opinion or conclusion of the Court, including drawing a sketch plan, if necessary.* 10. The record shows that the trial Magistrate mostly relied on PW3’s testimony to find that the suit land belonged to the respondent. Counsel for the appellant faults her in this, since PW3 testified only at the locus in quo and was not a witness in court before the visit to locus in quo. According to him, PW3’s testimony ought to have been disregarded by the trial Magistrate. 11. In ***Kwebiiha Emmanuel & Anor Versus Rwanga Furujensio & 2 Ors Civil Appeal No. 021 of 2011*** it was held that

*“In a nut shell, the purpose of visiting the locus in quo is to clarify on evidence already given in court. It is for purposes of the parties and witnesses to clarify on special features such as graves and/or grave yards of departed ones on either side, to confirm boundaries and neighbors to the disputed land, to show whatever developments either party may have put on the disputed land, and any other matters relevant to the case. It is during locus in quo that witnesses who were unable to go to court either due to physical disability or advanced age may testify. However, if the trial court finds/or is satisfied that the evidence given in court is enough, then he or she may not visit the locus in quo. Evidence at the locus in quo cannot be a substitute for evidence already given in court. It can only supplement”.*

1. In that case, the Hon. Justice Musalu Musene emphasized that once locus in quo is visited, all the relevant procedures must be followed. Witnesses must testify or give evidence after taking oath or affirmation and they are liable to cross examination by the parties and or/their advocates. 2. In the present case, the record shows that PW3 – Usiki Kusulum did not originally testify in Court but rather testified during the Court’s visit to locus in quo. It was her testimony that she started staying on and cultivating vegetables on the suit land since 1986 and would collect rent and give it to Amina, wife of the late Alhaji Sulaiman Masaba and mother of the respondent. 3. PW3- Usiki Kulusum’s testimony was corroborated by DW5 – Shabina Shifude who stated that she was caretaking the house on the land in dispute. Also, PW1 – Alhaji Sulaiman Masaba testified that he gave the suit land to a lady to care take and that she in turn planted vegetables on the said land. Furthermore, DW4 – Lwanga Amisi testified that it was only the house on the land that was bought by the late Alhaji Sulaiman Masaba and not the land itself. 4. Given the above mentioned evidence, it is obvious that PW3’s evidence at locus in quo visit did not depart in substance from the testimonies of PW1, DW4 and DW5. She was supplementing the testimonies of the said witnesses and did not vary from them. In any case, the said witnesses were all cross examined and the trial Magistrate in her Judgment acknowledged that PW3 merely confirmed that she was caretaking the house on behalf of the respondent and showed the court the boundaries of the land in dispute. I note that when PW3 showed the said boundaries to the court, she was never challenged by the appellant. 5. Notably, the appellant also produced a witness - DW5 (Shabina Shifude) to testify at locus in quo. It is therefore insincere on his part to challenge PW3’s testimony at locus in quo, on the ground that it was illegally recorded, when he too introduced a new witness at that stage of the proceedings. Consequently I do not find that any injustice was visited on the appellant. 6. Mr. Madaba’s submission was that the trial Magistrate considered oral evidence to arrive at her decision. I agree. The trial magistrate relied on the evidence of the respondent and his witnesses, having found the appellant’s evidence contradictory. I agree with her finding. The testimony in chief of the appellant at page 7 of the record of proceedings, was inter alia that he was present in court when the respondent’s father (Al Haji Sulaiman Masaba) was called as a witness for the respondent and yet the land in dispute actually belongs to the said Al Haji Sulaiman Masaba and not to the respondent. 7. In cross-examination, he testified that it was his uncle Mulongo alias Muhamadi Hiire, the heir of his father, who gave Al Haji Sulaiman Masaba his friend the suit land to use. However, the appellant subsequently contradicted himself during his re-examination at page 9, by stating that Al Haji Sulaiman Masaba, the respondent’s father, had bought the suit land from Mulongo alias Muhamadi Hiire and that a sale agreement to that effect was made. This aspect of evidence is a contradiction of his main evidence on how Al Haji Sulaiman Masaba entered the suit land. 8. It is trite law that the effect of contradictions and inconsistencies is that they must be interpreted in favor of the opposite party, if they go to the root of the case. I find that the above inconsistences are major. They go to the root of this case because the crux of the appellant’s claim in his pleadings is that the alleged purchase of the suit land by the respondent’s father, never happened. His turning around to say that Al Haji Sulaiman Masaba bought the land in issue from his uncle Mulongo alias Muhamadi Hiire, supports the respondent’s case that the suit land belonged to the respondent, Al Haji Sulaiman Masaba. 9. In any case, it was the appellant’s evidence that he has been on the land since 1997, while the respondent states that his father obtained the land by purchase from Muhamadi Hiire in 1979, a fact that the appellant accepts, although he claims that at the time of that purchase, the estate of his father had an appointed administrator. The said administrator remains unknown to this court and no letters of administration were adduced in evidence to prove the claim that the sale to the respondent’s father by Muhamadi Hiire in 1979 was unlawful. 10. I thus find that since appellant acknowledged that there was indeed a sale transaction between Al Haji Sulaiman and the Muhamadi Hiire, corroborating the respondent’s evidence and the respondent proved on a balance of probabilities that he owns the suit land. 11. In the premises, I find that the trial Magistrate properly evaluated the evidence on record. These grounds accordingly fail.

***Ground 3-*** ***The learned trial Magistrate erred both in law and in fact when she believed a forged sale agreement in favor of the respondent and disregarded the letters of administration in respect of the suit property thus arriving at a wrong conclusion.***

1. The appellant’s contention was that the suit land was sold without the knowledge of the Administrator of his father’s estate. However, as pointed out above, he did not mention who that Administrator was, neither were letters of Administration adduced in evidence at the trial Court. Having found in grounds 1 and 3 that the respondent proved his interest in the suit land on a balance of probabilities, I hold that this ground has no merit. It accordingly fails.

***Grounds 4 and 5***

***4. That the decision of the learned trial Magistrate has occasioned a miscarriage of justice.***

***5. That the decision of the learned trial magistrate is tainted by fundamental misdirection of the law and on the facts.***

1. It has been held that a decision is said to have occasioned a miscarriage of justice, if there has been misdirection by the trial court on matters of fact, relating to the evidence adduced or where there has been unfairness in the conduct of the trial resulting to an error being made ***(See*** ***Mutego Muhammadi vs Zubairi Mulyaka & Anor HCT 04 – CV- CA – 0151- 2012).*** I concur with the submissions of the respondent. As already stated above, the locus in quo proceedings were properly conducted. In the result, these grounds fails as well. 2. The Appeal therefore lacks merit as a whole, having failed on all grounds. It is accordingly dismissed with costs to the appellant.

I so order.

Susan Okalany

**JUDGE**

**31st August 2021**