Kironde and 2 Others v Baseka and 7 Others (Civil Appeal 30 of 2024) [2024] UGHC 879 (2 August 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVIL APPEAL NO. 30 OF 2024

[FORMERLY MSD CIVIL APPEAL NO. 61 OF 2015] [Arising from an appeal from the judgment and orders of $H/W$ Yeteise Charles, Magistrate Grade I, Hoima Chief Magistrte's Court in Civil suit no. 77 of 2011 delivered on 16<sup>th</sup> september 2015]

- 1. KIRONDE HILARY - 2. KIIZA AMON

3. BARAZA JOHN::::::::::::::::::::::::::::::::::::

#### VERSUS

- 1. BASEKA PENINAH - 2. KAGORO YOVAN - 3. BYARUHANGA WILLIAM - 4. KORAKI BULASIDI - 5. BYARUHANGA NAFUTALI - 6. NYABIGAMBO BYEMBANDWA - 7. MURUBI SAFANI - 8. BABYENDA ROGERS::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### **JUDGMENT**

- The Appellants/Plaintiffs as children and beneficiaries of the $[1]$ estate of the late Abumereki Kironde instituted Civil Suit No. 77/2011 against the Respondents/Defendants for inter-alia, a declaration that the Respondents trespassed on the suit land of approximately 50 acres situate at Kihesi Cell, Kigorobya Town Council, Hoima District that belonged to the late Abumereki Kironde. - The Respondents/Defendants on the other hand denied the $\lceil 2 \rceil$ Appellants/Plaintiffs' claim. They contended that they are customary owners of their respective portions of the suit land

inherited from their parents who have stayed and utilised their portions of land by way of occupation and cultivation.

- On his part upon directing himself on the burden and standard of $[3]$ proof, i.e., that the burden of proof in civil suits is on the plaintiff or any party who wishes court to believe him and that the standard of proof is on the balance of probabilities, the trial magistrate found as follows: - (a) The Appellants/Plaintiffs' case is that the Respondents encroached and or trespassed on about 10 acres of the Appellants' land. - The size of the land bought by the late Abumereki Kironde $(b)$ from a one **Zebiya Bagadira** (from whom the Appellants derive their interest) was not mentioned in the sale agreement and the late Abumereki Kironde did not endorse it as the purchaser. - The sale agreement of the suit land between Zebiya and $(c)$ Kironde dated $31/10/1996$ was neither witnessed by any neighbour nor any of the witnesses brought in court. - No clear boundary marks of the suit portion of land were $(d)$ shown to court at locus in quo to prove the extent of the Appellants/Plaintiffs' interest. - As a result of the above, the trial Magistrate found and held that $[4]$ the Plaintiffs failed to prove their case on the balance of probabilities that the suit land belonged to them and dismissed the suit with costs. He declared that the Defendants were owners of their respective portions of the suit land. - The Appellants were dissatisfied with the whole of the judgment $[5]$ and decree of the leaned Magistrate Grade I and lodged the present appeal on the following grounds as contained in the memorandum of appeal dated $28/1/2015$ ; - The learned trial Magistrate erred in law and in fact when he $(1)$ failed to properly evaluate the evidence on record thereby arriving at a wrong decision in Civil Suit No. 77 of 2011 that the suit land belongs to the Respondents.

- $(2)$ The learned trial Magistrate erred in law and in fact when he totally disregarded the Appellants' evidence thereby arriving at a wrong decision in Civil Suit No. 77 of 2011 that the Appellants had not proved their case on a balance of probabilities. - The learned trial Magistrate erred in law and in fact when he $(3)$ failed to address himself as to the correct procedure to be followed at locus in quo thereby occasioning a miscarriage of justice to the Appellants.

### **Counsel legal representation:**

$[6]$ The Appellants were represented by Mr. Simon Kasangaki of Ms. Kasangaki & Co. Advocates, Masindi while the Respondents were represented by Mr. Okwere of Ms. Kajeke, Maguru & Co. Both Counsel filed their respective Advocates, Kampala. submissions for consideration in the determination of this appeal.

### Duty of the $1^{st}$ Appellate appeal

- It is trite law that the duty of the $1^{st}$ Appellate court is to review $[7]$ the evidence on record for itself in order to determine whether the decision of the trial court should stand. In so doing court must bear in mind that an appellate court should not interfere with the discretion of a trial court unless it is satisfied that the trial court in exercising its discretion has misdirected itself in some matter and as a result, arrived at a wrong decision or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of discretion and that as a result there has been a miscarriage of justice, see Stewards of Gospel Talents Ltd Vs Nelson Onyango H. C. C. A. No. 14/2018 & National Insurance Corporation Vs Mugenyi [1987] HCB 28. - In the instant case, this case being a $1^{st}$ appeal from the judgment $[8]$ and orders of the Magistrate Grade I, this court bear an obligation to re-examine, re-appraise and re-evaluate the evidence on record and come to its own inference of facts and conclusion.

Both Counsel in this appeal opted to argue both the $1<sup>st</sup>$ and $2<sup>nd</sup>$ $[9]$ grounds of appeal together because both the grounds rotate around how the trial Magistrate evaluated the evidence before him to arrive at the decision he made. This court shall also deal with the 2 grounds together and ground 3 separately.

Ground 1 & 2

(a) That the learned trial Magistrate erred in law and in $[10]$ fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong decision in Civil Suit No. 77 of 2011 that the suit land belongs to the Respondents.

(b) That the learned trial Magistrate erred in law and in fact when he totally disregarded the Appellants' evidence thereby arriving at a wrong decision in Civil Suit No. 77 of 2011 that the Appellants had not proved their case on a balance of probabilities.

- [11] Counsel for the Appellants submitted that as per the evidence on record of the Appellants, PW1 - PW4, the suit land which is about 10 acres was encroached upon by the Respondents in 2011 by way of crossing the known boundaries and started cultivating it without the consent of the Appellants who inherited the suit land from the late Abumereki Kironde as per the WILL (P. Exh.2). That the late Abumereke Kironde purchased part of the portion of the suit land from his sister Zebiya Bagadira in 1996 as per the sale agreement dated 31/10/1996 (P. Exh.1). According to Counsel for the Appellants, the above evidence sufficiently discharged the burden of proving that the suit land belonged to the Appellants. That had the trial Magistrate paid due attention and given thorough evaluation of this evidence, he should have found that the suit land belongs to the Appellants. - [12] Counsel for the Respondents on the other hand submitted that the Respondents adduced evidence which was not challenged during cross-examination, that they customarily owned their respective

occupied portions of land as was appreciated by the trial Magistrate in his judgment.

- [13] In the determination of the 2 grounds of appeal at hand, this court shall pay due attention to the sale agreement dated 31/10/1996, (P. Exh.1), upon which Abumeriki Kironde bought part of the portion of the suit land and **Abumeriki Kironde's Will** (P. Exh.2) which are the basis or form the gist of the Appellants' claims as beneficiaries of the late **Abumeriki Kironde**. - [14] Upon perusal and critical examination of both the sale agreement of kibanja (PW1) between the late Abumeriki Kironde and his sister Zebiya Bagadira (P. Exh.1) from whom and where the Appellants claim to derive their interest from and Abumeriki Kironde's WILL dated 19/5/2004 (P. Exh2), I find no evidence to show that either P. Exh.1 or P. Exh.2 relate to the suit land. - [15] Firstly, the boundaries of the suit land as described by the $1^{st}$ Appellant (PW2) and the $3<sup>rd</sup>$ Appellants (PW1) in court alongside with those described in the agreement (P. Exh.7), especially the Kijura Road on the North, Nyakabale hill and Kigorobya -Kijanja Road were neither shown to the trial Magistrate at locus in quo to support their case nor an explanation given as to the changes in the boundaries if any, since the alleged trespass. In brief, as found by the trial Magistrate, no clear boundaries of the suit land were shown to court by the Appellants by way of proving the alleged extent of trespass. The Appellants' gardens and homesteads of PW1's step mother were also neither shown to court at locus nor evidence of their earlier existence or an explanation as to what happened to the homesteads if indeed there were there. - [16] Secondly, the sale agreement of the kibanja by **Zebiya Bagadira** and Abumeriki Kironde (P. Exh.1) from whom the Appellants claim to derive interest of the suit land, as rightly found by the trial Magistrate, the sale agreement was neither witnessed by neighbours of the land nor endorsed by the witnesses who testified in court and associated themselves to it. The purported purchase

of the kibanja, was not endorsed by the late **Abumeriki Kironde** as the buyer. His name was merely mentioned in the body of the agreement. For the agreement to bind Abumeriki Kironde so as for his children and grandchildren, the Appellants to derive interest from it, it ought to have been endorsed by Abumeriki **Kironde** as the purchaser of the portion of the suit land. Under **Ss**. 2 & 10 of the Contract Act, 2010, for an agreement to be enforceable at law, there has to be evidence of the intention to contract and *ad idem*, see, Green Boat Entertainment vs City Council of Kampala H. C. C. S. No. 580 of 2003. No explanation was given by the Appellant as to why the buyer **Kironde** did not endorse on the agreement. In the absence of the endorsement of **Kironde** as a party to the Agreement, I find that there would be no evidence that the buyer Kironde accepted to purchase the suit land and that there was consensus *ad idem*, the meeting the two minds of the parties to the contract. P. Exh.1 therefore is a document that does not bind Kironde and his beneficiaries cannot benefit from it. Besides it is not enforceable at law as against or for the benefit of Kironde and or his beneficiaries. As rightly observed by the trial Magistrate in his judgment, there is doubt as to whether Zebiya actually sold the suit land or that agreement was only made to defraud the Defendants of their land.

- [17] Thirdly, as regards the WILL left by **Abumeriki Kironde** (P. Exh.2) it is not true as Counsel for the Appellants submitted that the suit land was mentioned in the WILL so as to be inherited by the Appellants. The WILL did not spell out the properties left by the deceased Abumeriki Kironde to include the suit property. Besides, there is also no evidence that was adduced by the $1^{st}$ Appellants/PW2 that upon application for the Letters $\mathsf{of}$ Administration for the estate of the late Abumeriki Kionde, the suit land was listed among the properties left by the deceased for the $1^{st}$ Appellant to administer. - [18] From the foregoing, it appears to me that the trial Magistrate faced with this kind of evidence adduced by the Appellants would find no basis to find that the suit land belongs to the Appellants against

the Defendants who adduced unchallenged evidence of long occupation and utilization of the land by their predecessors.

[19] In conclusion, I find that the trial Magistrate properly evaluated the evidence before him and arrived at the right decision that the Appellants failed to prove their case on a balance of probabilities and that the suit land belonged to the Respondents. The $1^{\rm st}$ and $2^{\rm nd}$ grounds are found to be devoid of merit and they accordingly fail.

That the learned trial magistrate erred in law and in Ground 3: fact when he failed to address himself as to the correct procedure to be followed at locus in quo thereby occasioning a miscarriage of justice to the appellants.

- [20] Counsel for the Appellants submitted that the trial Magistrate failed to address himself as to the correct procedure to be followed at locus in quo when he failed to draw the sketch map of the disputed area to indicate the boundaries as alleged by the witnesses and failing to give the parties the opportunity to show the developments on the land and be cross examined. - [21] Counsel for the Respondents did not agree. He submitted that the parties to the suit were present during locus and the proceedings show that the parties testified and were cross examined. - [22] Upon perusal and examination of the locus proceedings this court finds that it is not true that witnesses were not given an opportunity to testify and therefore show court their respective developments on the land if any. - [23] As per the practice Direction No. 1 of 2007 Guideline 3 it is provided that during locus in quo visit, court should ensure the following: - That all parties, their witnesses and advocates if any are $(a)$ present. - $(b)$ Allow parties or their witnesses to adduce evidence at the locus in quo.

- All cross examination by either party or his/her counsel. $(c)$ - $(d)$ Record all the proceedings at the locus in quo. - $(e)$ Record any observation etc. including a sketch plan. - [24] In the instant case, the record of locus proceedings shows that all the parties and their respective Counsel were present, parties testified and were cross examined accordingly. With the guidance of their advocates who were present, it is inconceivable that the parties would be denied an opportunity to testify at locus and be cross examined as counsel for the Appellants allege in his submissions. - [25] The trial Magistrate properly recorded the evidence at locus and his observations and reserved his conclusion in the judgment upon evaluating the locus evidence with evidence adduced in court, his failure to draw the sketch map of the suit land is found not fatal to the locus proceedings because that requirement is not mandatory. It all depends on the circumstances of each case. In this case, court having found that the Appellants had failed to clearly give or show the boundary demarcations of the suit portion of land, a sketch plan may be found uncalled for. - [26] All in all, I find that the trial Magistrate addressed himself as to the correct procedure to be followed at locus in quo and there was therefore no miscarriage of justice that occurred to the Appellants. The $3<sup>rd</sup>$ ground of appeal is found devoid of any merit and it also accordingly fail. - [27] In conclusion, I find that the appeal lacks merit. The judgment and orders of the trial Magistrate are accordingly upheld and the appeal is dismissed with costs to the Respondents.

Dated at Hoima this $2^{nd}$ day of August, 2024.

Byaruhanga Jesse Rugyema **IUDGE**