Katende v Senyonga (Civil Appeal 21 of 2024) [2024] UGHC 479 (21 June 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **CIVIL APPEAL NO. 21 OF 2024**

(Formerly MSD Civil Appeal No.14 of 2021) (Arising from Kibaale Chief Magistrate's Court, Civil Suit No.20/2015)

**KATENDE ISIFU ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**SENYONGA JOHN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

*[Appeal from the judgment and orders in Civil Suit No.20 of 2015 of Kibaale Magistrate's Court dated 25th /2/2021]*

## *Before: Hon. Justice Byaruhanga Jesse Rugyema*

## **JUDGMENT**

- [1] In this appeal, the Respondent who was the plaintiff in the lower court sued the Appellant/defendant for inter alia, a declaration that he was the owner of the suit kibanja/land situate in **Kameme L. C village, Nyamarwa sub county, Kibaale District.** - [2] It was the Respondent's case that he bought the suit kibanja from the late **Peter Kasaija** in 1965 and had been in exclusive control and occupation for now over 50 years. That in 2007, the Appellant crossed his boundary and encroached on the suit land and destroyed by cutting down trees and barbed wire poles of his pastures without consent. The Respondent reported the matter to the Local Council authorities in June 2007 who decided in his favour upon which the Appellant ceased the trespass. That the Appellant resumed the trespass in 2015 by slashing the bush and cutting the Respondent's barbed wire while claiming ownership of the kibanja.

- [3] On the other hand, the Appellant denied the Respondent's claims. He averred that the suit kibanja was part of his land comprised of **Block 325, plot 3 of 40.8ha,** land at **Busesa,** that it belonged to him having purchased it from a one **Zeverio Kyamanywa** in 1994. - [4] The trial Magistrate heard the suit and upon evaluation of evidence, found that the suit land measuring about 3-4 acres belonged to the Respondent/plaintiff and the Appellant/defendant was a trespasser thereon. - [5] The Appellant was dissatisfied with the whole of the judgment and the order of the trial Magistrate Grade 1 and lodged the instant appeal on the following grounds of Appeal: - *1. The learned trial Magistrate erred in law and in fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong decision that the suit land does not belong to the appellant.* - *2. The learned trial Magistrate erred in law and fact by relying on the contradictions and/or hearsay evidence of the Respondents and their witnesses.* - *3. The learned trial Magistrate erred in law and fact in disregarding the Appellant's and his witnesses' overwhelming evidence on record and instead substituted it with his own hypothesis, speculation and acted against the weight of evidence by reason of which he reached a wrong finding that the suit land belongs to the Respondent.*

# **Counsel legal representation**

[6] The Appellant was represented by **Mr. Wosamwa Emmanuel** while the Respondent was represented by **Mr. Sentongo Farouk.** Both counsel filed their respective submissions for consideration of this court in the determination of this appeal.

# **Duty of the 1st Appellate court**

[7] This being a first appeal from the judgment and orders of the Magistrate Grade 1, it is the duty of a first appellate court to review and re-evaluate the evidence before the trial court and reach its own conclusions, taking into account of course that the appellate court did not have the opportunity to hear and see the witnesses testify, **Ruwale Vs R [1957] E. A 570 and Muluta Vs S. Katama, SCCA No.11/1999.** This court shall apply the above principles in the determination of this appeal.

## **Grounds 1 & 3**

- **a) The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at wrong decision that the suit land does not belong to the Appellant.** - **b) The learned trial Magistrate erred in law and fact in disregarding the appellant's and his witnesses' overwhelming evidence on record and instead substituted it with his hypothesis and acted against the weight of evidence by reason of which he reached a wrong finding that the suit land belongs to the Respondent.** - [9] Counsel for the Appellant submitted that the trial court considered the Respondent/plaintiff's evidence in isolation of the Appellant/defendant's evidence particularly, in making a finding on the issue of rightful ownership of the suit property. That he essentially failed to weigh evidence of both parties so as to reach a correct decision. The Respondent did not at all tender in court any agreement of proof of ownership of the suit property yet the Appellant on his part, tendered in court his 1994 purchase agreement of the suit property (**D. Exh.1A** and its translation as **1B**) which was never challenged by the Respondent. - [10] 2ndly, that it was erroneous on part of the trial Magistrate to rely on the supposed L. C1 court and L. C2 court decisions to conclude that the suit property belongs to the Respondent yet the L. C1 court lacked jurisdiction to entertain a land matter as a court of 1st instance as provided for under **S.76A (1) of the Land Act as amended**. That there was therefore no valid L. C1 decision to be appealed to the L. C2. - [11] 3rdly, that learned trial Magistrate erred and misdirected himself when he wrongly observed that the Respondent's witnesses established that it was

the Appellant who cut the Respondent's barbed wire and that the Appellant had started to cultivate on the Respondent's land.

- [12] On the other hand, counsel for the Respondent submitted supporting the trial Magistrate's decision that he was right to hold that the suit land belonged to the Respondent/plaintiff because the Respondent's witnesses testified so and their evidence was not challenged. - [13] As regards the criticism that the trial Magistrate wrongly relied on the L. C decision to conclude that the suit land belongs to the Respondent, counsel for the Respondents submitted that the trial Magistrate did not base his decision on the L. C courts' decisions or upheld their decisions. - [14] It is a cardinal principle and law of evidence that *"He who alleges the existence of facts must prove so",* (**S.101 of the Evidence Act**). The Respondent/plaintiff therefore had the burden to prove his case and the standard of proof in civil cases is on a balance of probability; **Etyang Alex Vs Etyang Augustine, HCCA No.102/2013.** - [15] In the instant case, the Respondent/plaintiff had the duty to adduce evidence to prove that he was the rightful owner of the suit land and that the Appellant/defendant by his acts was therefore a trespasser on the suit land. - [16] Therefore, as rightly submitted by counsel for the Appellant/defendant, whereas the Respondent/plaintiff's case was based on a purchase agreement of the suit kibanja from a one **Peter Kasaija**, the agreement was never tendered in evidence. During trial, the Appellant stated:

*"The land belongs to me because I bought it from one petero Kasaija in 1965 for 550 ug shs…The agreement was reduced in writing. I forgot the original at home."*

When the matter was adjourned, on the next hearing date, the Respondent merely presented the translation of the agreement and not the original agreement itself. There was therefore no agreement exhibited in court. Photocopy exhibits are never admissible in evidence for documents must be proved by primary evidence, **S.63 Evidence Act.**

- [17] 2ndly, none of the surviving and existing witnesses to the agreement named in evidence such as **Joseph Kigonya** and **petero Warakira** (as neighbours) testified in court about the existence of the agreement. - [18] Lastly, none of the surviving and existing neighbours to the suit land named in evidence such as **Emmanuel** and **Bigwire** testified in court to support the Respondent's claims of trespass against the Appellant. It is only **Kirabo Matia**, the Respondent's son who testified as **PW5** but also did not categorically state that he witnessed the Appellant cut the Respondent's barbed wire. - [19] On the other hand, the Appellant/Defendant (**DW1**) adduced evidence of his purchase agreement of the suit kibanja from a one **Zaverio Kyamanywa** which was tendered and exhibited in evidence as **D. Exh.1A** and its English translation as **1B**. The Appellant's purchase agreement was not challenged at all by the Respondent. - [20] In the absence of proof that the Respondent purchased the suit property from **Peter Kasaija** as he claimed by production of the purchase agreement coupled with the fact that none of the Respondent's witnesses (PW2 –PW5) witnessed the sale, I find that the Respondent did not discharge the burden of proof in proving the suit against the Appellant. - [21] The trial Magistrate considered the Respondent's evidence in isolation of the Appellant's defence. He did not take into account of the Appellant's purchase agreement and disregarded his evidence which led to a miscarriage of justice to the Appellant. - [22] I however find that it is not correct and it is not true that the trial Magistrate based his decision on the L. C1 and L. C2 judgments. They were never tendered in court. The Respondent's evidence was merely that he reported the cutting of his barbed wire to the L. C1 which found in his favour as part of the res gastae evidence against the Appellant. The authorities of **Rubaremira Ruranga Vs E. C & Anor, Constitutional Petition No.21 of 2006** and **Nalongo Burashe Vs Kekitiibwa, C. A. C. A No.89 of 2011** are not applicable to this ground of appeal.

[23] As a result of the totality of the above, I find that the trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record and thereby arrived at a wrong decision that the suit land belongs to the Respondent. The Appellant is found to be the Rightful owner of the suit land and could not therefore be a trespasser on his own land. The **1 st** and **3 rd grounds** of appeal are found to have merit and they accordingly succeed.

# **Ground 2: The learned trial Magistrate erred in law and fact by relying on the contradictory and /or hearsay evidence of the Respondent's witnesses.**

- [24] The contradictions referred to are as to how the Respondent acquired the suit land, the acreage of the suit land and the year the trespass took place. - [25] Upon perusal of the evidence of the Respondent on record, I have not been able to see the alleged contradictions. The Respondent's evidence is that he purchased the suit Kibanja from **Peter Kasaija** save for the fact that he failed to present proof of the purchase. - [26] As regards the acreage of the suit portion of land, the Respondent testified that it was about **4 acres** and the trial Magistrate on locus also confirmed that the land was approximately **4 acres** as stated in his judgment on page 5. It was merely **4 acres** out of the suit kibanja that was allegedly trespassed upon. Besides, the Respondent explained in evidence that the pleadings indicated a wrong acreage. I do not find that there was any miscarriage of justice occasioned to the Appellant arising from the trial Magistrate's finding on the acreage of the suit land. - [27] As regards the date of trespass, it is apparent that the alleged trespass was continuous, i.e from 2006 to 2015, with the intervention of the L. Cs in between. - [28] I find **ground 2** without merit and it accordingly fails.

[29] In conclusion, I find that the Respondent did not discharge the burden of proof in proving the suit against the Appellant. The Appellant is the rightful owner of the suit land. He was not entitled to the reliefs sought in the plaint. The 1st and 3rd ground of Appeal having succeeded, the appeal is accordingly allowed. The decision of the lower court is set aside with costs of this appeal and in the lower court to the Appellant.

Dated at Hoima this **21st** day of **June, 2024.**

**…………………………………… Byaruhanga Jesse Rugyema JUDGE.**