Kiiza v Kaliisa and Another (Civil Appeal 35 of 2024) [2024] UGHC 915 (13 September 2024)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL APPEAL NO. 035 OF 2024 (Formerly, MSD C. S No.11 of 2013)

(Arising from Hoima Chief Magistrate's Court, C. S No.13 of 2008)

KIIZA WILSON ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. PEREZI KALIISA 2. GEORGE CHOTHUM ::::::::::::::::::::::::::::::::::::

(An appeal from the judgment and orders of Magistrate Grade 1 of Hoima Chief Magistrate's Court in C. S No.13 of 2018 delivered on the 10/4/2013)

### Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

### **Background**

- The Appellant/plaintiff sued the Respondents/defendants for a declaration $\lfloor 1 \rfloor$ that the suit land belongs to him, an order directing the Respondents to stop grazing their cattle in the suit land, eviction and costs of the suit. - [25] It was the Appellant's case that he acquired the suit land situate at Bukona-Kabatindule village, Kigorobya sub county, Hoima District as unoccupied land in 1988/1989 as the former occupants of Congolese origin had abandoned it and fled for having poured poison in the public water source. - On 15/9/2005, the Appellant applied for the land from the Hoima District Land $[3]$ Board and on 29/6/2007, the land was inspected by the Area Land Committee in the presence of the 1st Respondent, the rest of the bataka, L. C1 officials and the sub county officials who found the land without any dispute. The District Land Board issued instructions to survey the land but the survey failed to take place because of the trespass orchestrated by the Respondents who were

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grazing their cattle on the land and their violent conduct.

- $[4]$ On the other hand, the Respondents claimed that they are the rightful owners of the suit land having utilized part of it for over 30 years and purchased and or compensated the customary tenants thereon the suit land. - $[5]$ On the 29/5/2007, the Respondents applied to have the land brought under the Registration of Titles Act and the Area Land Committee inspected and also approved the same as being free and available for allocation to the Respondents. - $[6]$ The trial Magistrate on his part, upon evaluation of the evidence as adduced before him, he found that both parties have their distinct portions of land neighbouring each other, for which each applied for registration under the Registration of titles Act and both respective portions of land were duly inspected and approved by the Area Land Committee. The same position of the parties' respective portions of land was confirmed at locus visit and as a result, the trial Magistrate concluded that the suit land belongs to the Respondents. Judgment was therefore accordingly entered in favour of the Respondents that they are the rightful owners of the suit land. The Appellant's case was dismissed with costs to the Respondents. - The Appellant was dissatisfied with the judgment and orders of the trial $[7]$ Magistrate and lodged the present appeal on the following grounds: - 1) The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong decision that the disputed land belongs to the Respondents. - 2) The learned trial Magistrate erred in law and fact when he totally disregarded the Appellant's evidence thereby arriving at a wrong decision that the Respondents owned land in the neighbourhood of the Appellant's land and that the parties shared a common boundary. - 3) The learned trial Magistrate erred in law and fact when he relied on extraneous matters not adduced in evidence in reaching his decision, thereby arriving at a wrong decision that the suit land belongs to the Respondents.

# Duty of the 1st Appellate Court

$[8]$ This is an appeal from the decision and decree of the Magistrate Grade 1 and therefore, this court sits in this appeal as a first appellate court. As a first appellate court, this court is to re-evaluate the evidence and come to its own decision. In so doing, it should subject the evidence as adduced before the trial court to a fresh and exhaustive scrutiny, see Banco Arabe Espanol Vs B. O. U, SCCA No.8 of 2001.

## **Consideration of the Appeal**

The 3 grounds of appeal raised by the Appellant all revolve around how the $[9]$ trial Magistrate evaluated the evidence before him to arrive at the conclusions he made. This court shall in the premises deal with all the three grounds together.

## Grounds 1,2 & 3: Evaluation of evidence

- [10] Counsel for the Appellant, Mr. Simon Kasangaki submitted that the trial Magistrate failed in his duty to properly evaluate the evidence on record as he totally disregarded the weight of the Appellant's evidence hence arrived at an erroneous decision that the suit land belongs to the Respondents. Counsel argued that the Appellant who testified as PW1 acquired the suit land around 1988 as vacant land and since then has utilized the same uninterrupted. That he applied for registration of the land and on 29/6/2007, the Area Land Committee inspected it and found it free from any dispute. That the inspection was conducted in the presence of the Area Chairman Land Committee (DW5) and the $1st$ Respondent who signed in favour of the Appellant. That as a result, the District Land Board offered the suit land to the Respondents and accordingly gave instructions to survey the land. - [11] Counsel concluded that it was after realizing that the Appellant had been offered the suit land by the District Land Board that the Respondents trespassed on his land by way of grazing cattle, and later on applied for it purporting to be the owners thereof.

- [12] I however find the Respondents' case clear. The Respondents did not dispute how the Appellant acquired the land he claims as his. Their claim is that the Appellant's land is different and separate from the suit land they own. It is also not in dispute that the Area Land Committee inspected both parties' respective portions of land at the instance of either party and approved their respective portions of land as free of disputes and therefore available for allocation. The 1st Respondent does not also deny signing for the Appellant for and during the inspection of his portion of land. - [13] According to the Respondents, they purchased various piece of land from different people who included Odaga Vicent, Okumu, Riek Patrick, Kusiima and others as per the purchase agreements, D. Exhs.1,3,4,5 & 6. Odega Vicent and Kusiima Stephen testified for the Respondents as DW3 and DW4 respectively. - The above evidence regarding how the Respondents acquired their respective $\Gamma$ pieces of land that comprise the suit land appear to me supported and corroborated by the evidence of the area L. C1 chairperson, James Kasangaki (PW2), who testified as follows;

"I know the parties in this court. They are residents of the village. I know the suit land.... There is no relationship between Kiiza Wilson's [Appellant] and that of the woman (seller). Kiiza Wilson [Appellant] has a different piece of land from that which the old woman sold [to the Respondents]."

[15] Then as regards the inspection of the parties' respective portions of land by the Area Land Committee, PW2 stated thus;

"On 30th June 2007, I was at Bukona village. I saw the District Land Committee. They had come to inspect the defendants' [Respondents'] land. I also recall when the land committee visited the piece of land belonging to the **plaintiff** [Appellant].... We inspected the land of Kiiza Wilson [Appellant].... Perezi [ $2nd$ Respondent] did not have any objection and he even signed as a close neighbor."

[16] Then, during cross examination, PW2 concluded that the Respondents' land was also inspected but on a different day from when they inspected that of the Appellant. There is nowhere in evidence where this witness testified that

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the Respondents claim or have trespassed on the portion of land belonging to the Appellant.

[17] The Area Land Committee Nyamunobwa Abimeriki (DW5) clarified the matters regarding the parties' respective portions of land as follows; "The parties have a claim over a land that is situate in Bukona, Kigorobya sub county. I was the Area chairman land committee.... During my tenure of service..... I knew so well the suit land.

Both parties are neighbours."

[18] DW5 further authoritatively testified that both parties applied for registration of their respective portions of land and the Area Land Committee inspected the respective portions and recommended each of them to acquire their respective portions of land. He concluded thus:

"The plaintiff's land is quite different from that of the defendants. Each has his own piece. That's all."

DW5's evidence resonates with that of PW2, the area L. C1 chairman.

[19] As regards the 1st Respondent signing for the Appellant during the inspection of his portion of land by the Area Land Committee, the 1st Respondent (DW1) at page 17 of the typed proceedings explained as follows:

"I signed on the application forms as a neighbor to the plaintiff,... as he has his own piece that we do not have a claim. We share boundaries with the plaintiff."

Indeed, as per the trial Magistrate's findings at locus, the parties' 2 pieces of land were distinct.

"Even when court visited locus the two pieces of land were distinct. The plaintiff had his own land and the defendants had theirs. All the people at locus clearly showed the demarcations. I thus find that the suit land belongs to the defendants."

[10] In the premises, I find that though the Appellant may be the one who first applied to have his land before the Respondents did, each was offered his distinct portion of land. The parties are in occupation of their respective pieces of land which neighbor each other.

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- [11] In conclusion, I find that the learned trial Magistrate properly evaluated the evidence before him, duly considered the evidence as a whole and arrived at the correct decision that the suit land belonged to Respondents. There are no extraneous matters he relied on that were not adduced in evidence except that he believed the Respondents' case vis a vis that of the Appellant. - [12] All the 3 grounds of appeal are found devoid of any merit and as a result, the appeal is dismissed with costs to the Respondent.

Dated this 13th day of September, 2024.

**Byaruhanga Jesse Rugyema** JUDGE.