Kemitare & Another v Kanyaruju (Civil Appeal 26 of 2013) [2025] UGHC 316 (22 May 2025) | Land Ownership Disputes | Esheria

Kemitare & Another v Kanyaruju (Civil Appeal 26 of 2013) [2025] UGHC 316 (22 May 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE LAND CIVIL APPEAL NO. 026 OF 2023 ARISING OUT OF CIVIL SUIT NO. 68 OF 2013

### $10$

$\mathsf{S}$

1. KEMITARE MARGRET

2. TUMABAHUTA RAPHAEL ::::::::::::::::::::::::::::::::::::

### **VERSUS**

KANYARUJU JOHN :::::::::::::::::::::::::::::::::::: 15

# JUDGMENT OF HON. JUSTICE KAROLI LWANGA SSEMOGERERE

#### **Brief Facts:** 20

The appellants and respondents are neighbours, owners of land at Karungu Cell, Kibanda Parish, Kamwezi Sub-County in Rukiga district. In 2013, the respondent sued the appellants in the Chief Magistrate's Court of Kabale for recovery of the suit land, an eviction order, permanent injunction, general damages and costs of the suit.

The respondent's case was that he purchased the suit land in 1998 from Ernest Kazahura and enjoyed quiet uninterrupted possession until 2011 when the defendants connived to trespass on the suit land. The materials of the trespass are cultivation by each of the two appellants on the suit land. The first appellant in her written statement of defence stated she acquired the suit land in 1980 from her late father-in-law, a one Zacharia Bwakirijja. The second appellant stated he bought the suit land from a one Bahitaho Eliphaz.

$\mathbf{1}$

- The suit proceeded to trial before the learned Trial Magistrate Grade I, $\mathsf{S}$ Tabaruka Racheal who decided the matter on August 16, 2023, ten years after the filing of the suit. At trial, three issues were set up for determination by court, namely: - Whether or not the suit land belonged to the respondent? $(i)$ - $10$ - Whether the defendants trespassed on the suit land? $(ii)$ What remedies were available to the parties. $(iii)$

The trial concluded with a locus visit to the suit land after each of the parties presented their evidence. At trial, the respondent presented proof of purchase of the land, which was admitted in evidence. He showed the appellants' land as neighboring his land on the eastern and northern 15 boundaries respectively. Ernest Kazahura's land or a portion thereof remains on the western boundaries of his land. The 1<sup>st</sup> appellant's testimony was to the effect that she inherited the suit land from her late father-in-law, Zacharia Bwakirijja's estate, while the 2<sup>nd</sup> appellant' testimony was to the effect that he bought his share of the land from a one Bahikaho on October $20$ 19, 2000 and he tendered a purchase agreement which was also admitted in evidence.

In resolving the issues at the trial, the learned Trial Magistrate found that all parties to the suit, appellants and respondent shared boundaries, and that in respect of their individual parcels, had good title, i.e. the inheritance in $25$ respect of the first appellant and purchase by the second appellant. So did the respondent. When court visited locus, it reported at page 6 of the judgment that the respondent demonstrated boundary marks on his land. The boundary marks in his sale agreement were the same as those on the ground. The boundary marks were visible and showed major encroachment 30 by the first appellant and marginal encroachment by the second appellant. Having found that the respondent had proved ownership by way of sale agreement and by evidence at the locus, he could sustain a claim of trespass. He was granted an eviction order, a permanent injunction, general damages of UGX 1,000,000 and costs. Appellants appealed against the judgment of 35 the learned Trial Magistrate, hence this appeal.

$\bigcirc$

#### Representation: $\mathsf{S}$

The appellants were represented by M/S Alice Namara & Co Advocates for the Appellants and M/S Beitwenda & Co. Advocates represented the Respondents. The appeal proceeded by way of written submissions. At a hearing on May 14, 2025, the parties confirmed and adopted their submissions for resolution by this court.

## Grounds of Appeal:

Appellant raised two grounds of appeal, namely:

- 1. The learned Trial Magistrate erred in law when she failed to properly subject the entire evidence on record to serious scrutiny and evaluation and came to the wrong the conclusion that the respondent had proved his case on a balance of probabilities that he was the owner of the suit land. - 2. The learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence in its entirety and as a result reached the wrong decision (conclusion).

## Discussion and Analysis.

Appellants argued the two grounds together.

$25$

In support of their appeal, Counsel for the appellants stated that the first and second appellant had discharged their burden of proof of their ownership by the testimony of the first appellant showing possession from 1996 for the first appellant and possession by the second appellant after purchase in 2000. The Appellants attacked the Learned Trial Magistrates' finding that the dispute was one of surpassing existing boundary marks and encroaching on another person's land. Lastly, the appellants attacked the 30 sale agreement exhibited by the respondent that it did not reflect the neighbors on the ground, in short, that the suit land description did not tally with the description by the respondent at locus.

The respondent supported the findings of the Trial Magistrate, namely that he had bought land from a one Ernest Kazahura in 1998. And that he had

taken possession of the land immediately after purchase. That his evidence $\mathsf{S}$ was corroborated by other witnesses. Respondent also supported the findings of the Trial Magistrate that the neighbors referred to in his sale agreement were actually the same ones that exist on the ground. Lastly, the respondent argued there was no evidence of the alleged distribution in 1996 tendered in court by the first appellant. Respondent pointed out a number $10$ of inconsistencies relating to boundaries of the suit land by the appellant's witnesses.

At the onset, this appeal exposes the practical limitations of determining ownership of land by the courts. Second, it highlights the urgent need to convert customary land tenure to registered land with precise measurements as land has become scarce.

It is the duty of the first appellate court to re-evaluate the evidence before it, and make its own inferences of fact. This duty is summarized in the Supreme Court decision of Kifamunte v Uganda, Criminal Appeal No. 10 of 1997 as follows:

"We agree that on a first appeal, from a conviction by a Judge the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour, the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from the manner and demeanour, which may show whether a statement is credible or not, which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen.

The Court of Appeal cited this decision with approval in John Kafeero Sentongo v Peterson Sozi, Civil Appeal No. 173 of 2012. The Court stated the obligation of an appellate court to appraise inferences of fact. This

$\overline{4}$

the

$25$

appeal turns entirely on inferences of fact, as to which of the parties' testimony was believable. It is also important to note that the appellate $\mathsf{S}$ court can only overturn a trial court's findings of fact, if there is a clear error or misinterpretation of the evidence. Accompanying the interpretation of the evidence is a requirement of proof, under Sections 101-103 of the Evidence Act. In civil matters, the burden of proof is on the balance of $10$ probabilities. The Trial magistrate correctly cautioned herself on this statement of the law before evaluating the evidence before her at page 3 of

her Judgement.

In an action for trespass, proof of ownership is essential for a cause of action to succeed. The evidence for the respondent, PW1, PW2 and PW3 15 established the following facts, sale by the prior owner, corroborated sufficiently by PW2 who wrote the sale agreement, the extent of the trespass and the boundaries of the of the 2<sup>nd</sup> appellant. The same witness stated that the second appellant inherited her husband's share of his late father's estate. In respect of the defence, now the appellants, testimony also showed they

$20$ had acquired their land by inheritance and purchase respectively by the first and second appellant respectively. I find no reason to interfere with the findings of the Learned Trial Magistrate.

The finding by the learned Trial Magistrate at page 6 is to the effect, that the case was about surpassing boundary marks and encroaching onto another 25 person's land. The learned Trial Magistrate at pages 6 and 7 of her judgment stated she was not convinced the first appellant bought the disputed land, based on the contents of the sale agreement held by the respondent which included the disputed land in the suit land description, specifically, the footpath. 30

I find that the findings by the learned Trial Magistrate were supported by the evidence, and there was no misinterpretation of the evidence. The respondent, therefore, discharged the requisite burden of proof.

The relevant law on burden of proof in the law of Evidence in Uganda is discussed in a recent Ugandan decision Wangala Philip v Steel Tube 35 Industries Limited, Civil Suit No. 212 of 2018. In this decision, Wamala J., states the following:

$\overbrace{\mathbf{A}}$

"In civil proceedings, the burden of proof lies upon he who alleges. Section 101 of the Evidence Act, Cap 6 provides that; "(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".

"Further, section 103 of the Evidence Act provides that the "burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person". Accordingly, the burden of proof in civil proceedings normally lies upon the Plaintiff or claimant. The standard of proof is on a balance of probabilities. The law, however, goes further to classify between a legal burden and an evidential burden (Emphasis mine). When a plaintiff has led evidence establishing his/her claim, he/she is said to have executed the legal burden. The evidential burden thus shifts to the defendant to rebut the plaintiff's claims".

Applying the law to the facts of this appeal, the respondent discharged his legal burden when he proved he had a sale agreement dated May 22, 1998 $25$ purchasing the land, which agreement was corroborated by PW2 who wrote the same agreement. PW3's uncontroverted testimony was to the effect that the land was owned by her late husband, at page 5 of the Judgement. I find no reason to disturb this inference of fact by the learned Trial Magistrate. While the appellants similarly proved their claim of 30 ownership of their respective parcels, they failed to rebut the plaintiff's claims of ownership. There is no reason to interfere with the finding of the learned Trial Magistrate at page 7, that the plaintiff had proved his case on a balance of probabilities.

Both grounds of appeal must fail. 35

$\overline{C}$

$\mathsf{S}$

# Findings and Conclusion:

This appeal fails.

The findings of the Trial Magistrate are upheld.

Costs are awarded to the respondent in this court and the courts below.

$10$

$\mathsf{S}$

I SO ORDER,

DATED AT KABALE THIS $\frac{9}{2}$ . ....day of May 2025.

senggenere

SSEMOGERERE, KAROLI LWANGA JUDGE.