Kawoooya v Kakiza (Civil Appeal 2 of 2021) [2024] UGHC 1230 (28 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL APPEAL NO. 0002 OF 2021 (Arising from Civil Suit No. 0073 Of 2014)**

## **KAWOOYA MUHAMOOD**::::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT**

#### **VERSUS**

#### **KAKIZA GODFREY**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENT**

#### **BEFORE HON. JUSTICE SAMUEL EMOKOR**

#### **JUDGMENT**

This appeal arises from the Judgment of His Worship Rukundo Isaac the Magistrate Grade One sitting at Kabale Chief Magistrates Court in Civil Suit No. 0037 of 2014 delivered on the 20/05/2021 in favour of the Respondent/Plaintiff.

The brief background to this appeal is that the Respondent/Plaintiff sued the Appellant/Defendant seeking orders for a permanent injunction, general damages, special damages and costs of the suit.

The Plaintiff's claim as per his Plaint is that he is the owner of a piece of land situate at Bataka Cell, Kirigime Ward Kabale having bought the same from one Saleh in 1998 after which he planted there on eucalyptus trees. That on the 30/07/2014 the Defendant trespassed on the Plaintiff's land and cut down twelve eucalyptus trees which he put to his own use and proceeded to fence off part of the Plaintiff's land denying him access to the same.

The Plaintiff also seeks for special damages of UgX 2,190,000/=.

The Appellant/Defendant in his Written Statement of Defence denied the Plaintiff's claim of trespass and damage to property and avers that he is the legal administrator to the estate of his wife the late Hadija Nyambere who prior to her demise had bought the land in question and that he is a holder of Letters of Administration issued by the High Court Uganda at Kabale vide Administration Cause No. 0031 of 2002 and prays that the Plaintiff's suit is dismissed with costs.

The trial Magistrate in his Judgment delivered on the 20/05/2021 in the favour of the Plaintiff issued the following orders:

- **1. The Plaintiff is the lawful owner of the Suitland.** - **2. The Defendant is declared trespasser on the Suitland.** - **3. A permanent injunction to issue against the Defendant from trespassing on the Plaintiff's land.** - **4. The defendant is ordered to pay general damages of UgX 500,000/=.** - **5. The Defendant pays costs of the suit to the Plaintiff.**

The defendant being dissatisfied with the trial Magistrate's decision filed the instant appeal on the following grounds:

- **1) That the learned trial Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby arriving at a wrong conclusion.** - **2) That the learned trial Magistrate erred in law ad fact when he failed to properly evaluate DW2's evidence, a sale agreement.**

- **3) The learned trial Magistrate erred in law and fact when he failed to consider the evidence on record that DW3 was present during the negotiations hence had knowledge of the boundaries.** - **4) That the learned trial Magistrate did not properly conduct locus proceedings hence causing a miscaurage of justice as the suit was on boundary (SIC)**

#### **Representation.**

At the hearing of this appeal Messrs Bikangiso & Co. Advocates represented the Appellant while the Legal Aid Project of the Uganda Law Society appeared for the Respondent.

Counsel in this appeal proceeded by way of Written Submissions.

#### **Duty of Court**:

This Court as the first appellate Court is to re-appraise the evidence on record and come up with its own conclusions bearing in mind the fact that it did not have the opportunity to observe the demeanour of witnesses.

### **See Automobile Spares Ltd versus Crane Bank and another SCCA No. 0021 of 2001.**

There being no standard method of evaluation of evidence an appellate Court will only interfere with the findings made and conclusions arrived at by the trial Court only if it forms the opinion that in the process of coming to those conclusions the trial Court did not back them with acceptable reasoning based on a proper evaluation of evidence, which evidence as a result was not considered in its proper perspective.

#### **See Peter versus Sunday Post Ltd (1958) EA 429.**

#### **Ground 1.**

Counsel for the Appellant/Defendant abandoned ground one and argued the rest of the grounds separately.

#### **Ground 2.**

## **That the learned trial Magistrate erred in law and fact when he failed to properly evaluate DW2's evidence of a sale agreement.**

Counsel for the Appellant submits that on the 11/12/2017 the record of the Court shows that an agreement between the Plaintiff and Ali Swaleh dated 12/05/1998 was admitted as part of the Defence/Appellant's documents and there was another agreement dated 08/03/1998 received as PEX1. Counsel is critical of the trial Magistrate in this regard submitting that the trial Magistrate did not distinguish these two agreements before deciding in favour of one over other since both were for sale of land between the Plaintiff and Ali Swalleh and that the content in the two is also very different.

It is the contention of Counsel that the agreement dated 12/05/1998 is clear on the particulars as to size of the land where as that of 08/03/1998 is silent about the size of the land being sold. Counsel also makes an observation that the signature of the vendor during the 1st installment is different from the signature of the vendor in the last payment dated 08/03/1993.

Counsel for the Appellant submits that this Court is enjoined under **Section 72** of the **Evidence Act** to compare signatures and writings admitted in Court as evidence.

Counsel further submits that the Plaintiff as PW1 told Court that the neighbours of the land he purchased on the left was Swaleh Ali and this is what is written in the agreement but that PW2 testified that on the left was Karidi who sold to Arinaitwe Julius and that PW2 told Court that Swalleh Ali was on the right and it is the land sold to the Defendant's wife a fact which PW1 denies by stating that *"Kawooya Muhammed (Defendant) has never been my neighbor but he came and fenced off my land".*

According to Counsel PW1 and PW2 confirmed that DW1 Mugisha Deus was present when the Plaintiff was buying the Suitland and indeed he was present Counsel emphasizes. It is the contention of Counsel for the Appellant that DW1 distanced himself from the signature in the agreement dated 08/03/1998 stating that it was totally different in terms of content and description and that the land in issue was for the Defendant.

Counsel also presses the point that the agreement dated 08/03/1998 describes the neighbours to the Suitland as being Mr. Magezi on the right, Mr. Mzee Swalleh on the left up to the stream, Road is at the bottom, Swalleh Ali(vendor) is at the top and that this description is totally different on the ground as reflected in the locus visit.

Counsel therefore contends that the agreement dated 08/03/1998 is a forgery which this Court should declare null and void.

#### **Ground 3.**

**The learned trial Magistrate erred in law and fact when he failed to consider the evidence on record that DW1 Mugisha Deus was present during the negotiations hence had knowledge of the boundaries**.

Counsel submits that the trial Magistrate rubbished the defence witnesses as being ignorant on the boundaries of the Suitland yet DW1 Mugisha Deus Chairperson Local Council 1 was present when the Plaintiff was buying and also when the Defendant's wife was buying, he witnessed both transactions and that PW1 and PW2 all confirmed this fact and therefore it was wrong for the trial Magistrate to say that the defence witnesses did not know the boundary marks.

Counsel also criticizes the trial Magistrate for making a finding that the defendant did not know the boundary of the land that was purchased by his wife and yet the record clearly indicates that the Defendant informed Court that while he was not present at the time of making the agreement he had inspected the land and that's why he did not sign it. That DW3 a father to Hadijah Nyambere who bought the land adjacent on the right hand side told Court that his daughter invited him to inspect the land that she was purchasing but he was not present at the time that the agreement was being written.

It is therefore Counsel's prayer that Court finds that the Appellant's witnesses had knowledge on the boundaries and that they be found reasonable and substantial to enable them describe the boundaries.

#### **Ground 4.**

**That the learned trial Magistrate did not properly conduct locus proceedings hence causing a miscarriage of justice as the suit was on the boundary. (SIC)**

It is the submission of Counsel for the Appellant that the Plaintiff and the Defendant owned land adjacent to each other and the issue for determination before the Court was determination of boundaries. Counsel is critical of the trial Magistrate pointing out that the sketch map showing the land in dispute does not indicate who owned the same or whether both parties agreed that indeed this was the land in dispute.

Counsel also contends that PW3 the wife of the seller was not put on the stand to verify what land her husband sold to the Plaintiff and the Defendant as this would have given weight in knowing exactly which land was sold to the parties.

Furthermore, Counsel argues that the sketch map did not show the ridge made reference to by the Plaintiff as being his boundary. On the other hand, Counsel argues that the defence pleads that their land is separated by trees on top and Ekigorogoro trees which are shown on the sketch map and therefore there was nothing verified by the locus visit.

Counsel contends that the contradictions highlighted in the Plaintiff's case were major and the same ought to be resolved in favour of the Defendant. To buttress his case Counsel relied on the decision in **Alfred Tofar versus Uganda CACA No. 0167 of 1969** and prays that the appeal is allowed.

#### **Preliminary point of law.**

Counsel for the Respondent/Plaintiff in his Written Submissions in reply raised a Preliminary Objection that the instant appeal was filed in October which was five months after the delivery of Judgment and this without the leave of this Court Contrary to **Section 66** of **Civil Procedure Act** and **Order 44** of the **Civil Procedure Rules.**

Counsel therefore prays that the appeal is struck out with costs.

#### **Submissions of Counsel for the Respondent.**

Counsel for the Respondent/Plaintiff in regard to ground two and three of the appeal submits that the Appellant's claim that the contents of the purchase agreement were different is misconceived and a futile attempt to find fault in the trial Court's proper analysis of the evidence on record.

It is the contention of Counsel that the Suitland was purchased in different installments and so the content of the 3 purchase agreements of instalments cannot be the same though the purchase agreement meant one transaction.

It is the contention of Counsel for the Respondent that no evidence has been adduced to ascertain the claims of the Appellant that the signatures of the vendor were different. To buttress his case Counsel relied on Provision of **Section 43** and **45** of the **Evidence Act** that evidence of verifying signatures of an individual must be given through comparisons of handwriting, handwriting experts and or the author or person well acquainted with the owner of the signature that is being contested. In the instant case it is the argument of Counsel that PW3 the wife of the vendor Swalleh did not dispute the signatures of her husband but confirmed that the transactions were conducted by her husband.

Her evidence according to Counsel was not discredited and further that neither the Appellant nor his witnesses claimed to be familiar with the signature or handwriting of the vendor.

It is the submission of Counsel that the attempt by Mugisha Deus (DW1) to deny the agreement as a witness was futile as no evidence was led that the respondent was found guilty of forging the agreements. Furthermore, that while the Appellant claims to have inspected the land prior to the sale he did not tell Court on which day he carried out the inspection and whether he was with the vendor or not.

It is the contention of the Respondent's Counsel that the trial Court's finding was correct because as required by the law vide **Section 59** of the **Evidence Act**, Oral evidence must be direct as exhaustively analyzed by the trial Magistrate and that DW2 and DW3 were all not present at the time of purchase of the suit property and so their evidence cannot be of more evidential value than that of witnesses who were present in all transactions like the vendor or PW3 the wife of the vendor.

Counsel also points out that DEX1 the purchase agreement of the Appellant's late wife did not have any boundaries or measurements but only described the land as one that had been verified by the vendor and purchaser. That among those present at the execution was the wife of the vendor PW3 who testified clearly about the different boundaries of the Suitland.

Counsel also submits that the Court rightly found that boundaries can be identified by natural features under the **Land Regulations 2004** and that in this case when Court visited locus it found a ridge to separate the Appellant and the Respondent. Also that PW2 testified that the Appellant destroyed the Suitland's boundaries and when they visited the land they found that the ridge and eucalyptus trees stamps were removed and the Appellant had gone ahead to fence the Suitland.

It is therefore the submission of Counsel for the Respondent that the lower Court correctly evaluated the evidence and reached a correct decision.

On the fourth ground it the contention of Counsel for the Respondent that the locus in quo proceedings were properly conducted by Court and this in the presence of parties and witnesses. According to Counsel the Respondent showed Court the ridge as a boundary and the old tree stamps.

In reference to the contradiction between witness testimony and the locus visit findings as to neighbours it is the argument of Counsel that the several would be neighbours in 1998 had sold their pieces of land and changed locality and that this should not be viewed as contradictions but natural changes beyond the control of parties.

Counsel for the Appellant in rejoinder submits that it is not true that the appeal was filed out of time and that the Appellant filed a notice of appeal and a letter requesting for the typed and certified lower Court Judgment and record and the same was served upon the Respondent on the 25/05/2021. It is the contention of Counsel that the Appellant received the record of proceedings in early October, 2021 and thus the Memorandum of Appeal was filed within 30 days as provided under **Section 79** of the **Civil Procedure Act**.

### **Determination.**

# **Preliminary Objection.**

The lower Court record reveals that the trial Magistrate delivered his Judgment on the 20/05/2021 and on the 25/05/2021 the Appellant's Counsel wrote to the trial Court requesting for typed and certified records of the lower Court. The Appellant on the 26/05/2021 filed a notice of appeal before this Court.

The instant appeal was later filed on the 22/10/2021 by a Memorandum of Appeal.

# **Section 79** of the **Civil Procedure Act** provides;

# "*Limitation for Appeals.*

- *(1) Except as otherwise specifically provided in any other law, every appeal shall be entered-* - *(a) Within thirty days of the date of the Decree or Order of the Court; or* - *(b) Within seven days of the date of the Order of a Registrar, as the case may be, appealed against but the appellate Court may for good cause admit an appeal though the period of limitation prescribed by this Section has elapsed.*

*(2) In computing the period of limitation prescribed by this Section, the time taken by the Court or the Registrar in making a copy of the Decree or Order appealed against and of the proceedings upon which it is founded shall be excluded"*

### *While Order 43 Rule 1(1) of the Civil Procedure Rules provides that:*

*"Every appeal in the High Court shall be preferred in the form of a Memorandum signed by the Appellant or his or her advocate and presented to the Court or to such officer as it shall appoint for the purpose"*

It therefore follows that the Notice of Appeal filed by the Appellant on the 26/05/2021 does not commence the instant appeal.

The above fact notwithstanding the Appellants lawyers did request for the lower Court's proceeding by letter dated 24/05/2021 which was only four days after the delivery of the Court's Judgment on the 20/05/2021. As already highlighted above the period taken in preparation of the record is excluded from computation of the prescribed period. It is not disputed that the Appellant's lawyers by letter dated 25/05/2021 requested for the record. This was followed by the letter of the Deputy Registrar of this Court dated 18/11/2021 directing the Chief Magistrate to urgently forward the record for appeal purposes. The record shows that on the 02/12/2021 the Deputy Registrar of this Court received the certified copies of the lower record. The Appellant thereafter filed the instant appeal on the 22/12/2021 by filing his Memorandum of Appeal.

There is no evidence adduced that proves that the Appellant received the certified copies of the record before the 02/12/2021. It would therefore follow that the instant Memorandum of Appeal filed on the 22/12/2021 twenty days after the lower record was received by this Court was filed within the thirty days limit set by law.

The preliminary objection shall therefore be overruled.

I will now proceed to resolve grounds 2, 3 and 4 of this appeal.

The trial Magistrate raised the following three issues in his Judgment;

- **1) Whether or not the Suitland belongs to the Plaintiff.** - **2) Whether the Defendant trespassed on the Suitland.** - **3) Remedies available to the parties.**

The trial Magistrate on the first issue analyzed the evidence on record that the Plaintiff testified that he purchased the Suitland in 1998 after which he planted eucalyptus trees thereon and that the Plaintiff's evidence is supported by that of PW3 who testified that she and her husband sold the Suitland to the Plaintiff in 1998 and that the boundary was a ridge which was separating the Plaintiff's land and the Defendant's land. The sale agreement the trial Magistrate notes was admitted as PEX1. The trial Magistrate in considering the evidence of the Defendant who appeared as DW2 found that he testified that he bought the Suitland in 2000 with his wife from a one Saleh who had also sold to the Plaintiff. That DW2 testified that it was his wife Hadija Nyambere who bought the Suitland and he was not present at its purchase. The Defendant's sale agreement was admitted as DEX1. The trial Magistrate disregards the evidence of DW2 on the basis that under **Section 59** of the **Evidence Act** oral evidence must be direct and that the evidence of DW2 is guess work and hearsay in regard to the boundaries which in his view were well known to DW2's wife and that is why during her life time she did not conflict with the Plaintiff over it.

The trial Magistrate in the same vein disregards the evidence of DW3 on the basis that he was not present at the time of sale and cannot prove a fact of boundary. The trial Magistrate accepted the evidence of PW1 and PW3 that the boundary between the Plaintiff and defendant was a ridge and that the same was confirmed by Court at locus and therefore found the Plaintiff to be the lawful owner of the Suitland.

Counsel for the Appellant/Defendant has been critical of the trial Magistrate for not distinguishing the sale agreement in PEX1 dated 08/03/1998 against that tendered in and admitted for the Defendant dated 12/05/1998.

A perusal of the Court record reveals that the sale agreement dated 12/05/1998 was not formally admitted as the Defendant's Exhibit. I will for ease of reference reproduce here verbatim the record in issue.

*"Court: Adjourned to 24/01/2018. Leave is granted to include summons in Civil Suit No. 0005 of 2002, an agreement between the Plaintiff and Saleh dated 12/05/1998 received on Court record on 25/05/2002 to be part of the defendant's documents and should be served on the opposite Counsel"*

It would appear quite clearly that the trial Court granted leave for the summons and agreement made reference to by the Court in Civil Suit No. 0005 of 2002 to be part of the Defendant's documents. It must be observed that the above proceedings of the 11/12/2017 took place when the Plaintiff had only presented two witnesses and was yet to present his third witness. This may explain why the trial Court did not proceed to mark the summons and sale agreements as defence Exhibits.

A perusal of the entire record does not reveal that the Defendant later tendered into Court formally the sale agreement dated 12/05/1998 between the Plaintiff and one Swalleh. The submission of Counsel therefore that the trial Magistrate ought to have taken a document that was never admitted into evidence into consideration in his Judgment is therefore not tenable. It therefore goes without saying that the submission that this Court makes a comparison of the signature (s) of the vender Swalleh in the two agreements is misplaced as there is only one sample for consideration in DEX1.

Counsel for the Appellant also attacks PEX1 on the basis that it is a forged document because DW1 distanced himself from the signature thereon alleged to belong to him. I have perused the Court record and agree with the submissions of Counsel that DW1 indeed distanced himself from the signature in PEX1 calling the same to be a forgery. DW1 however admits that the stamp on PEX1 is for his cell. DW1 under cross-examination admits that he was present when the Plaintiff purchased the Suitland from a vendor who was an Arab and that the wife of the seller also signed it. PW3 the wife of the seller Saleh corroborates DW1's testimony that she indeed signed the sale agreement and that the chairman then was Deus, (name used by DW1) while PW2 testified that he saw the chairperson Deus Mugisha (DW1) signing the sale agreement in PEX1 that he also appended his signature to.

I find the criticism levied against the trial Magistrate in not declaring PEX1 a forgery not justifiable. While DW1 distances himself from the signature attributed to him in PEX1 this does not in itself rebut the evidence of PW2 and PW3 who testified that he did sign the same. In fact, DW1 acknowledges the stamp as belonging to his cell and to which he was the chairperson. There was no credible evidence presented to the Court to rebut the presumption that the signature on PEX1 belonged to DW1. The defence did not even for purposes of simple comparison ask DW1 to present the Court with a sample of his known signature. I find therefore no basis on which I could fault the trial Magistrate in this regard as there was simply no evidence tabled for his consideration as stipulated under **Section 43** and **Section 45** of the **Evidence Act.**

It is the submission of Counsel for the Appellant that the trial Magistrate rubbished the defence witnesses as being ignorant on the boundaries of the Suitland.

It is imperative to note that neither PEX1 nor DEX1 which are sale agreements for land purchased from the same vendor Saleh Ali are explicit on the size of the land being purchased. The two sale agreements are therefore not helpful in as far as the measuments are concerned.

It is however clear that Saleh first sold to the Plaintiff/Respondent on 08/03/1998 as per PEX1 and later on 05/07/2000 to Hadija Nyambere who happens to be the wife to the Defendant/Appellant as per DEX1. The two pieces of land are adjacent to each other.

PEX1 provides details of the neighbours as K. Magezi on the right hand and on the left is land belonging to Mzee Saleh up to the stream and on top is land belonging to Mzee Saleh while DEX1 merely makes reference to the fact that the purchaser had verified the boundaries of the land being sold and does not provide the detail.

It is the evidence of PW1 that when he purchased his land to the left was Ali Swalleh (seller), right Karidi bottom is a stream and on top is the road to Rwakiseta. This description is similar to PEX1 in that both describe Mzee Swalleh as being to the left, K. Magezi would appear to be Karidi as also described by other witnesses who is to the right and both describe a stream at the bottom. The only discrepancy is to the top where PEX1 describes it as belonging to Mzee Saleh while PW1 describes the same as being a road to Rwakiseta. I would accept the description of PW1 as being more accurate as corroborated by PW2 and the seller's wife in PW3.

It is imperative to note that PW1, PW2 and PW3 are all witnesses to PEX1 and as observed by the trial Magistrate all gave direct evidence as to their participation as provided under **Section 59** of the **Evidence Act**.

DW2 and DW3 are husband and father to Hadija Nyambere who were not witnesses to DEX1 but testified to knowing the boundaries of the properties. DW1 on the other hand who testified to being a signatory to the sale agreement between the Plaintiff and Saleh testified that to the top is Rwakiseta Road and to the bottom is Kigorogoro (Shurb) the description by DW1 on record was not exhaustive. It would appear that he either deliberately or inadvertently held back evidence as to who is to the right and left of DW2's land.

The crux of this matter though is what constituted the boundary between the Plaintiff and the defendant. According to Pw1 after he purchased the Suitland in 1998 he started using it for making bricks and in 2005 planted eucalyptus trees and that a ridge worked as a boundary on the side of Swalleh. This is the said piece of land that PW1 testified to DW2's wife Nyambere later purchasing and neighboring him. According to PW1 on 30/07/2015 DW2 cut down 12 of his big trees and took them away and also fenced his land. That DW2 also mined sand and made bricks on the land. This evidence is corroborated by PW2 who testified that the Defendant destroyed the boundaries when he came on the land and that when they visited the land as the Bataka they found that there was a ridge with stamps of eucalyptus trees that were removed by Defendant who was mining sand from it and had also planted a fence.

Further corroboration was given by PW3's wife to Saleh who testified that they sold land to both the Plaintiff and the defendant's wife Nyambere and that the boundary between them was a ridge which was as a result of brick laying and there were also tree stamps. It is her evidence that the last time she went to the land in dispute in 2015 she found when the defendant had fenced off the land.

The Appellant (DW2) in his defence testifies that the big trees/stumps of eucalyptus acted as the boundary and that at the bottom is Ekigorogoro.

The Appellant (DW2) denies that the ridge is the boundary and explains that the ridge talked about was as a result of brick laying but that's not the boundary. DW2 also admits that he was the one who put the barbed wire on the boundary marks. It is the evidence of DW3 that the boundary marks are Ekigorogoro and eucalyptus trees which are still there. It is worth noting that under crossexamination DW3 claimed that the boundary marks were put in his presence but later in re-examination admitted that the boundaries were there before his daughter bought the land.

I find the evidence presented by PW1, PW2 and PW3 to be more believable. PW3 together with her husband saleh sold the 2 pieces of land to PW1 and DW2's wife Nyambere. I accept her evidence to be true that the boundary mark was a ridge which resulted from brick making and that there were also tree stumps.

The Appellant/DW2 did acknowledge in his defence the existence of the ridge and that the same was as a result of brick laying. The trial Magistrate in his locus visit drew a sketch map that clearly shows the house of DW2 to the left of PW1 with a ridge between the two and a barbed wire fence that has Ekigorogoro at the bottom and trees to the top of the fence.

The criticism of the Appellant's Counsel that PW3 should have been present at the locus visit to guide the Court in my opinion while desirable no miscarriage of justice was occasioned because the observation of the Court is well corroborated by the testimony on record.

In view of the foregoing I would agree with the analysis and findings of the trial Magistrate.

The 2nd, 3rd and 4th grounds are answered in the negative.

The Judgment and Orders of the trial Magistrate are upheld. The Instant Appeal is dismissed with costs to the Respondent.

It is so ordered.

Before me,

………………………………. **Samuel Emokor Judge 28/11/2024**