Kisoke and Another v Katalihwa (Civil Appeal 20 of 2021) [2024] UGHC 219 (19 April 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

## 3 **CIVIL APPEAL NO. 020 OF 2021**

#### **(ARISING FROM FPT – 00 –CV – CS – 008 OF 2016)**

# **1. ALICE KISOKE**

## 6 **2. KISEMBO EDSON :::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

# **KATALIHWA RUHUNGA ::::::::::::::::::::::::::::::::::::::::: RESPONDENT** 9 **BEFORE: HON. JUSTICE VINCENT WAGONA**

# **JUDGMENT**

#### **Introduction:**

12 The appeal is against the judgment and orders of His Worship Robert Mukanza, Ag. Chief Magistrate Kyenjojo delivered on 26th August 2021 asking this court to set aside the said judgment and declare that the appellants are the lawful owners of the 15 suit land, being their family land which they acquired by first occupancy.

#### **The case of the Plaintiff/Respondent:**

The Respondent filed Civil Suit No. 008 of 2016 against the appellant seeking: (a) 18 order that the suit land belongs to the plaintiff (Respondent); a declaration that the defendants were trespassers thereon; general damages for trespass; an order of eviction and vacant possession; an injunction restraining the defendants, their agents 21 or successors in title from committing further acts of trespass and costs of the suit.


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It was averred by the Respondent that he was the owner of the suit land inherited from his father Ruhunga Denis who had inherited it from the plaintiff's Grandfather

3 one Kadoma Kyampamba. The plaintiff's grandfather acquired the suit land as first occupant with approval from a local chief (*Mukungu*).

In 1989, the 1 st appellant's husband Kisoke who was a neighbor crossed the common 6 boundaries and encroached on the suit land that was under the care of the plaintiff's uncle Kiiza Jeles as the plaintiff lived in Luwero. Kiiza sued the 1 st appellant's late husband in the L. C.1 Court for trespass and court ordered him to vacate and removed 9 the temporary structures he had put on the land.

Around 2003, the late Kisoke again trespassed on the suit land and the plaintiff sued him the L. CIII Court of Rwekitegye but he died before the case was concluded. In 2008, the plaintiff emerged successful in L. C. III and the 1st 12 defendant was ordered to vacate the suit land which she declined and blocked the plaintiff from using the same. The acts of continued stay on the land by the defendants amounted to trespass 15 and their actions greatly inconvenienced the Respondent to which he sought to

recover general damages.

# **The case of the Defendants/Appellants:**

- The 1st 18 defendant was the lawful owner of the suit land equivalent to 300 acres having been the first settler with the late William Kisoke in 1973 and later applied for same from Fort Portal and was granted a leasehold offer. The 1st appellant and - 21 her husband took possession of the said land, planted eucalyptus trees, avocado, jack fruit trees, food crops and other crops and put a farm thereon.


The 2nd appellant grew up on the said land and when he became of majority age, his father divided the land into small portions and gave it to him where he has a house

- 3 and a family. In 2004, the late Kisoke sold part of the suit land to Kalinte Yowan (3rd defendant) who took possession and developed the same with seasonal crops and fruit trees without any disturbance from the plaintiff. Whereas there was a case - 6 filed in L. C. III, no boundaries were planed and no order of eviction was issued against the defendants. In 2009, the Chief Magistrate Fort Portal wrote a letter ordering for a fresh trial before a court with competent jurisdiction which the 9 plaintiff ignored. The defendants thus asked court to have the case dismissed with - costs for non-disclosure of a cause of action against the defendants.

# **Trial Judgment:**

- 12 The trial Magistrate after a full trial, made judgment in favour of the Respondent with orders that: the suit land belonged to the Respondent/plaintiff; a declaration that the defendants/appellants were trespassers; an order of eviction/vacant possession; - 15 a permanent injunction; general damages of shs 12,000,000/= and costs of the suit. The appellant being aggrieved with the said decision appealed to this court and framed seven (7) grounds for consideration by this Court.

# 18 **The Grounds of Appeal:**

**(1)That the learned trial Magistrate erred in law and in fact when he held that the Respondent was a direct descendant of Kadoma Wampamba** 21 **who owned the suit land by first occupation whereas not hence occasioning the appellant a miscarriage of justice.**


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- **(2)That the learned trial Magistrate erred in law and in fact when he relied on the judgments of local council Courts which did not have the** 3 **jurisdiction at the time to hold that the suit land belongs to the Respondent hence occasioning the appellant a miscarriage of justice.** - **(3)That the learned trial Magistrate erred in law and fact when he exhibited** 6 **bias during the hearing by admitting the evidence of witnesses without the appellants being represented hence occasioning a miscarriage of justice.** - 9 **(4)That the learned trial Magistrate erred in law and in fact when he held that KiizaJelese was a care taker of the suit land yet there was no evidence on record appointing him to that effect hence occasioning a miscarriage** 12 **of justice.** - **(5)That the learned trial Magistrate erred in law and in fact when he failed to evaluate the evidence on record and find that the appellants had** 15 **occupied the suit land for over 15 years and thus were bonafide occupants of the same hence arriving at a wrong conclusion and thus occasioning the appellants a miscarriage of justice.** - 18 **(6)That the learned trial Magistrate erred in law and in fact when he failed to evaluate the evidence on record and failed to find that it was the 1st appellant's late husband who was the first occupant and not the late** 21 **Kadoma Wampamba hence occasioning the appellant a miscarriage of justice.**

**(7)That the learned trial Magistrate erred in law and in fact when he failed** 24 **to evaluate the evidence on record and find that the Respondent's evidence was full of irreconcilable contradictions and deliberate**


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**falsehoods which go to the root of the case hence occasioning the appellants a miscarriage of justice.**

## 3 **Representation and hearing:**

*Mr. Bonefance Ngaruye* appeared for the appellants while *Mr. Wahinda Enock* appeared for the Respondent. Both counsel addressed me by way of written 6 submissions which I have duly considered herein.

## **Duty of the first appellate Court:**

This being a first appeal, my duty is to subject the evidence at trial to a fresh and 9 exhaustive scrutiny and a re-appraisal of all the evidence on record before reaching my own decision. I will make due regard to the fact that I did not see the witnesses testify to observe their demeanor. I will thus weigh the evidence and the 12 contradictions therein to drawn my own inference. *(See Fr. NanensioBegumisa& 3 others Vs. Eric Tiberuga, SCCA No. 17 of 2014 [2004] KALR 236).*

## **Point of law:**

- 15 At trial, Mr. Wahinda, learned counsel for the Respondent raised a point of law challenging the amended memorandum of appeal subsequently filed by the appellants without leave of Court. Mr. Wahinda contended that the amended 18 memorandum of appeal was filed after 30 days within which the appellants were supposed to appeal without seeking leave. He relied on section 79 (1) of the Civil Procedure Act and the case of *Migadde Richard Lubinga & 2 others v Nakibuule* - 21 *Sandra & 2 others, Civil Appeal No. 0053 of 2019* where it was held that an amended memorandum of appeal filed without seeking leave offends the law and


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should be struck off with costs. He thus made a prayer to have the appellants' amended memorandum of appeal struck out for having been filed without leave.

- 3 In reply Mr. Ngaruye contended that section 79 (1) of the Civil Procedure Act does not state that leave must be sought before filing an amended memorandum of appeal. The section is to the effect that an appeal must be filed within 30 days after the - 6 decision is made by court. He argued that the record of proceedings in the suit were issued on 22nd September 2021 and a certified copy of the judgment on 7 th September 2021. That on the same day learned counsel was served with the certified record of - proceedings on 22nd 9 September 2021, he filed an amended memorandum of appeal. That the prayer by counsel for the Respondent should be rejected since under paragraph 8 of the first memorandum of appeal, the appellants had indicated that - 12 further grounds shall be formulated upon being availed a record of proceedings. Indeed upon securing the certified record of proceedings, the appellants filed an amended memorandum of appeal. Counsel asked court to reject the prayer by Mr. - 15 Wahinda for want of merit. In the alternative he contended that if court is inclined to grant the prayer, then court should consider the first memorandum of appeal filed by the appellants.

### 18 **Decision:**

Under section 79 (1) of the Civil Procedure Act Cap 71 an appeal to the High Court must be filed within 30 days from the date of the decree or order. Under Order 43

21 rule 1; "*Every appeal to 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 that purpose*."


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Amendment of memorandum of appeal filed before the expiry of the 30 days within which to file an appeal would not require leave of court. Amendments filed after the

- 3 30 days have lapsed, require leave of court. In *Migadde Richard Lubinga& 3 others v Nakibuule Sandra & 2 others, Civil Appeal No. 0053 of 2019, Justice Immaculate BusingyeByaruhanga* commented thus: *"Much as Order 6 rule 19 of* - 6 *the Civil Procedure Rules allows amendments to pleadings at any stage of the proceedings the rule shows that it is court to allow the amendments. Where the pleadings have been closed, parties have to seek permission from court to amend* - 9 *the pleadings. In this case where an amended Memorandum of Appeal was filed without leave of court renders the amended memorandum incompetent'. In this Appeal, the amended Memorandum of Appeal filed on 1st September 2020 is* 12 *incompetent."*

In the case before me, the decision that the appellant appealed against was delivered on 26th August 2021. Therefore, the 30 days within the appellants were to appeal

- lapsed on 24th 15 September 2021. The amended memorandum of appeal was filed on 26th September 2021 outside the 30 days within which the appellants were to appeal. Therefore, the amendment required leave of court which was not sought prior to - 18 filing the same. The mere inclusion of a paragraph in the memorandum of appeal that further and particular grounds of appeal shall be framed upon securing the certified record of proceedings does not grant a party an automatic right to file an - 21 amended memorandum of appeal without seeking leave first. I thus agree with Mr. Wahinda for the Respondent that the amended memorandum of appeal was filed without leave of court and the same is struck out. I will consider the first memorandum of appeal filed by the appellants on 22nd 24 September 2021 which details the grounds of appeal stated herein above.


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# **SUMISSIONS OF THE PARTIES:**

# **GROUND 1:**

- 3 Mr. Ngaruye contended that the evidence of PW1, PW2, and PW3 proved that Kadoma Kyampamba was not a married man and neither did he leave any children. That it was confirmed by PW1 who in cross examination stated that by the time - 6 Kadoma got land, his wife had already deserted him. The two did not have children. Kadoma died without a wife. That PW1 further clarified that the mother of Ruhunga Denis was Kapimpi Janet who resided in Kigaya away from the suit land. That PW2 - 9 (Omuhereza Nyanjura) also corroborated the evidence of PW1 when she stated that; "*I do not know the plaintiff's father, I did not find the plaintiff's mother and that Kadoma was staying alone in the bush without a wife."* That she also stated that - 12 from the time of death of Kadoma to the filing of the suit, it was the defendant's family in possession of the suit land. Mr. Ngaruye thus contended that the evidence clearly indicated that the Respondent is not a direct beneficiary to the late Kadoma - 15 Kyampamba and the trial Magistrate ought to have taken into account such facts to arrive at the right decision that the plaintiff was not the rightful owner of the suit land. - 18 In reply, Mr. Wahinda contended that the Respondent's suit was about ownership of the land which he acquired from his father Ruhunga Denis. The Respondent being the only son of Ruhunga Denis was the lawful owner of the suit land and he included - 21 such a prayer in the plaint and was declared as such. The declaration was on the evidence submitted by the Respondent and the witnesses who testified to that effect. That the Respondent was found to be a beneficiary of the suit land having acquired - 24 the same from his father who in turn acquired it from the late Wampamba. The


Page **8** of **23** Respondent was a biological child of the late Ruhunga Denis and a direct beneficiary under his estate and a beneficiary under the estate of the late Kadoma as a grandchild.

3 The learned trial Magistrate thus rightly decreed the suit land to the Respondent and this the ground of appeal ought to fail.

# **GROUNDS 2, 4, 5, 6 & 7:**

- 6 Mr. Ngaruye contended that the learned trial magistrate erred when he relied on the judgments of L. C.1 of Kitongole Village and LC.2 of Rwaitegya Parish which had been nullified by a letter by the Chief Magistrate. He cited the case of *Nyakiyumba* - 9 *Growers Co-Operative Society Ltd v Tembo K Salongo, Revision Cause No. 01 of 2017* where Oyuko J cited the case of *Phillips v Cooping (1935) 1 KB 15* where Lord Scruiton observed that; It is the duty of the Court when asked to give a - 12 judgment which is contrary to the statute to take the point although litigants may not take it. That in Nyakiyumba (supra) Oyuko J observed that amendment to the Land Act of 2004 placed the original jurisdiction over land matters in Parish councils. - 15 That the chief Magistrate exercising his supervisory powers over L. C Courts under section 40 of the Local Council Act guided by a letter dated 4th June 2009 declaring the decision of the L. C 1 and LC.2 a nullity. That in the case of *Makula* - 18 *International Ltd v His Eminence Emmanuel Cardinal Nsubuga and Rev. Dr. Kyeyune CACA No. 4 of 1981 or 1982 HCB 11* court observed that: *"A court of law cannot sanction what is illegal, an illegality once brought to the attention of* - 21 *Court, it overrides all questions of pleadings including any admission thereof and court cannot sanction an illegality."* That since the decision of the trial magistrate is based on decisions which were nullified by court, the decision itself is a nullity.


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Mr. Naruye also asserted that the learned trial magistrate erred when he held that Kiiza Jelesi was a caretaker of the suit land yet there was no evidence on record to

- 3 that effect. That in cross examination, the said Kiiza stated that the land was vacant, bushy and infested by wild animals and that Kadoma died in 1979 leaving the land vacant and it remained so for 9 years. - 6 Learned counsel further contended that the trial magistrate erred in law and fact when he failed to evaluate the evidence on record and find that the appellants had occupied the suit land for unbroken period of over 15 years prior to the filing of the - suit which qualified them as bonafide occupants. The 1st 9 appellant in the written statement of defense indicated that her and her late husband Kisoke William had applied for the land from the District Land Board of Fort Portal, paid fees and even - secured a lease offer. The 1st 12 appellant and her late husband acquired the land as first occupants.

The 1st appellant testified that after acquiring the suit land, they developed the same 15 with eucalyptus trees, jackfruits, food crops and other crops and put a farm. This automatically qualified them as bonafide occupants since they were on the land before the coming into force of the 1995 Constitution. I was referred to section 29(2) 18 of the Land Act as amended and the decision in *Bugembe v Eriaku& Anor, Civil Suit No. 202 of 2016*.

Mr. Ngaruye further asserted that the trial Magistrate erred in law and fact when he failed to find that the 1st 21 appellant's husband was the first occupant of the suit land and not Kadoma Wampamba. The late Kisoke Samson acquired the suit land in 1973 by way of first occupation. Later in 1991, he embarked on the process to secure a 24 lease and was granted a leasehold offer though at the time of his death, the title had


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not been issued. The late Kadoma Kyampamba came to Kitongole village from Kiswala in about 1976 and was not survived by any child. The 1 st appellant and the 3 late Kisoke Samson were the first occupants on the suit land.

Learned counsel also claimed that the trial magistrate did not evaluate the evidence on contradictions in the Respondent's evidence which went to the root of the case. 6 There were contradictions in the evidence of P1, PW2 and PW3 which were never evaluated. PW1, PW2 and PW3 stated in their witness statements that the late Kadoma left a son but they contradicted themselves in cross examination. PW1 9 indicated that by the time Kadoma got the land, he had no wife since his wife had deserted him and the two did not have children thus Kadoma died lonely without a

wife. PW2 confirmed that Kadoma did not have a wife and stayed alone. PW3 stated 12 that the father of the Ruhunga was Kadoma Kyampamba and then stated that he was not the biological father but just paternal uncle and stated that he did not know the father of Ruhunga Denis. If the learned trial magistrate had addressed himself so 15 such contradictions, he would not have arrived at the wrong decision that the defendants were trespassers.

In reply Mr. Wahinda contended that 6 witnesses presented by the Respondent all 18 confirmed that the suit land formerly belonged to his grandfather Kadoma who acquired it by first occupancy where he had a residential house and was buried there. The acquisition by the late Kadoma was approved by George Busige the *Mukungu*

21 then. After the death of Kadoma, the land was inherited by the Respondent's father, the late Ruhunga Denis who died in 1985 leaving the land to the Respondent. Since the Respondent stayed in Luwero, the land was placed under PW3 as a care-taker to 24 ensure that it is not encroached upon. When the late Kisoke attempted to encroach


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on the same, PW3 opened up cases against him in LC1 and LC2 courts and judgment was made in his favour. This was further supported by PW4 and PW5 whose 3 evidence was not challenged during cross examination. The evidence on record supports the decision by court that the land belongs to the Respondent.

Learned counsel further argued that there was sufficient evidence on record to prove 6 that a one Kiiza Jelesi was a care-taker of the suit land. This was supported by PW6 and PW5 (Karatunga Aston), the area chairperson. The evidence of PW5 was not challenged. There was ample evidence to prove that Kiiza Jelese (PW3) was a 9 caretaker of the suit land.

Mr. Wahinda also submitted that the appellants did not plead that they were bonafide occupants on the suit land as such court could not find them as such. That this ground 12 should equally fail.

### **GROUND 3:**

Mr. Ngaruye contended that the trial Magistrate erred in law when he proceeded to hear the case in the absence of the appellant's counsel on 11th 15 July 2018. That the appellants had informed court that their lawyer was absent and asked for an adjournment. That the trial magistrate exhibited bias when he declined the 18 adjournment and went ahead to admit the evidence of witnesses for the Respondent in the absence of the appellant's counsel. Mr. Ngaruye asserted that this was in contravention of Article 28(1) of the Constitution which provides for a right to a fair

21 trial. Counsel invited court to the case of *Marvin Byaruhanga v Attorney General, HCMA No. 149 of 2016* where court noted that; Court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless


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if minded persons would think that in the circumstances there was a likelihood of bias then he should not sit and of he does, his decision cannot stand. He thus 3 submitted that this ground ought to succeed.

In reply Mr. Wahinda argued that issues of bias were not raised during trial as outlined in *Marvin Byaruhanga (supra*). That the appellants' counsel made a prayer 6 to recall PW4, PW5 and PW6 for cross examination a prayer which was granted and he chose to cross only PW6 and informed court that he did not intend to cross examined PW4 and PW5. That the appellants whose advocate chose not to cross 9 examine PW4 and PW5 cannot claim they were denied a right to be heard. That this ground ought to fail.

## **CONSIDERATION BY COURT:**

### 12 **GROUND 1:**

The plaintiff's evidence of ownership of the suit land is that he inherited it from his father Ruhunga Denis, who had also inherited it from his father Kadoma 15 Kyampamba, who had acquired it as first occupant with authority and approval of the local chief (*Mukungu*) and constructed a residential house thereon, in which he lived until his death in 1979 and was buried on the suit land. The plaintiff's evidence 18 was supported by that of **PW1 (Kabatongole Erinora)** who however stated in cross examination that Kadoma Kyampamba had no children and that the mother of

21 That Katalihwa was the husband of Janet Kapimpi and Bikomora was the plaintiff's grandfather; that the plaintiff had never used the suit land.

Ruhunga Denis was Kapimpi Janet who resided in Kigaya away from the suit land.


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**PW2 (Omuhereza Nyanjura Rusoke)** testified that the land initially belonged to Kadoma Kyampamba. PW2 found Kadoma Kyampamba on the suit land and he 3 used to say that upon his death, his land would go to his son Ruhunga. In cross examination PW2 stated that Kisoke was a neighbor and was 2km away. PW2 did not know the plaintiff's father and did not find his mother there. Kadoma 6 Kyampamba was buried at Nyaningo and PW2 attended burial. From the death of Kadoma Kyampamba to the time of filing the case, it was the family of the defendants that were in possession of the suit land. That Kadoma Kyampamba died 9 40 years ago. The plaintiff had never used the suit land.

**PW3 (Kiiza Jeles)** testified that the land belonged to Kadoma Kyampamba the grandfather of the plaintiff. Kadoma Kyampamba acquired the suit land by first 12 occupancy with approval from PW3's father George Buzige. Kadoma Kyampamba died in 1979 leaving the land to his son Ruhunga Denis. Because Ruhunga stayed in Kampala, George Buzige remained as a care-taker. George Buzige died in 1981

- 15 leaving the care-taker ship of the suit land to PW3. In 1985, Ruhunga Denis died and the land was left to his son Katalihwa Rugunga (plaintiff). In 1989, Kisoke Samson put temporary structures on the land and PW3 filed a suit against him in RC1. Kisoke - 18 Samson again trespassed in 2008 and a case was reported in LC.2 court and a map was drawn showing the boundaries of the land. In cross examination PW3 stated that he won the case against Kisoke as a family member of Kadoma. That the father of - 21 Ruhunga was Kadoma. That Kisoke had been on the suit land for more than 15 years. That Ruhunga has never used the suit land.

PW4 and PW5 testified that the land belonged to Kadoma which was inherited by 24 his son Ruhunga and upon the death of Ruhunga, the land was passed to the


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Respondent. PW4 stated that he knew Kadoma and used to stay on the suit land. Kadoma had a residential house on the said land and he was buried on there. That

- the 1st 3 defendant was a neighbor to the suit land and there were clear boundary marks. That during the life time of Kadoma, Kisoke (1st appellant's husband) never claimed the suit land. - 6 PW1 stated in cross examination that that Kadoma did not have children. That he died lonely without a wife. That the mother of Ruhunga Denis was Kapimpi Janet who resided in Kigaya away from the suit land. That Katalihwa was the husband of 9 Janet Kapimpi and Bikomora was the plaintiff's grandfather. It was clarified by - PW1, that the plaintiff's grandfather Katalhwa was a brother to Kadoma. This demonstrated that the late Kadoma was not the father of Ruhunga Denis and not a

12 grandfather of the plaintiff. Kadoma was a brother of the grandfather of the plaintiff.

The fundamental question however is whether the late Kadoma passed over his interest in the suit land to the late Ruhunga, the father to the plaintiff. From the 15 testimonies of the plaintiff's witnesses, the late Ruhunga never used the suit land. PW1 who was a key witness for the plaintiff testified that from the time of death of the late Kadoma, it was the defendant's family in use of the land. This was also 18 supported by the testimony of PW2 in cross examination who stated that the defendant's family had been in use of the land for over 40 years. PW3 stated in cross examination that the defendants had been in possession of the suit land for over 15

- 21 years. There is no evidence pointing to ownership or use of the suit land by Ruhunga. There is equally no evidence that the late Kadoma passed over his interests in the suit land to the Ruhunga. Any such interest if at all existed, appears to have through - 24 passage of time, passed to the late Kisoke through the doctrine of adverse possession.


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The evidence by PW3 that he was a care taker of the suit land appears to have been an afterthought. The aspect of George Buzige being a care taker was not pleaded.

3 The theory is challenged by the testimonies of the plaintiff's witnesses who confirmed that from the time Kadoma passed on, the suit land was used by the defendant's family. This ground of appeal therefore succeeds.

## 6 **GROUNDS 2, 4, 5, 6 & 7:**

#### *(a)Reliance on L. C.1 & L. C. 2 Judgments:*

I have perused the record of the lower court and established that court admitted the 9 judgment of R. C1 of Kitongole as PE1 and the one of L. C.2 of Rwaitengya as PE2 through PW4. It was contended by the defendants in their written statements of defense that these had been set aside by the Chief Magistrate and attached a letter dated 4th 12 June 2009. The record is however silent on the defendants tendering in the letter dated 4th June 2009 as part of their evidence.

The learned trial Magistrate is his judgment at page 6 and 7 in his evaluation of 15 evidence, seems to have heavily relied on the same in his final decision. He stated that the evidence of PW4 (Manyindo Samson) who was the vice chairperson of Rwaitegye L. C. II and who tendered in PE2 and that of PW5 (Karatunga Aston) the 18 former chairperson of Kitongole in 1989 who heard the dispute and tendered in PE1

- were not cross examined. The evidence of PW4 and PW5 in my re-evaluation centered most on the two impugned judgments. Whereas the appellants claimed that - 21 the judgments of L. C.1 and LC2 were declared a nullity by a letter issued by the Chief Magistrate, the letter was not tendered in evidence. It remained as a mere


Page **16** of **23** annexure to the defense. Further, the appellants and their witnesses did not testify about the fact that the said judgments were nullified by the Chief Magistrate.

3 The pertinent issue would then be whether the trial magistrate could rely on such evidence. Court is duty bound if an illegality is pleaded to investigate the same. *(Makula International Ltd v His Eminence Emmanuel Cardinal Nsubuga& Anor,* 6 *C. A. C. A No. 4 of 1981or (1982) HCB 11*).

In this case, the defendants had attached a letter from the Chief Magistrate dated 4th June 2009 where he had guided invoking the supervisory powers over L. C Courts

- 9 under Section 40 of the Local Council Courts Act 2006 where he ordered a retrial of the matter before a court with competent jurisdiction. In this case, the letter by the Chief Magistrate dated 4th June 2009 by implication nullified the judgments of L. C1 - 12 and LC2 upon ordering a retrial. The Chief Magistrate was exercising his supervisory powers over L. C Courts under Section 40 of the Local Council Courts. His guidance in the circumstances could not be ignored. Otherwise, if the trial - 15 Magistrate was to consider the said judgments as valid, the matter before him would have been res-judicata.

I thus agree with learned counsel for the appellants that the learned trial Magistrate 18 erred when he relied on the judgment of R. C1 of Kitongole admitted as PE1 and the one of L. C.2 of Rwaitengya as PE2. This ground this succeeds.

## *(b)Kiiza Joseph being a care taker:*

21 Mr. Ngaruye for the appellants contended that the trial Magistrate erred in law and fact when he considered Kiiza Jeles as caretaker as there was no evidence to that effect. Mr. Wahinda on the other hand averred that there was ample evidence from


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Kiiza Jeles and PW4 and PW5 to the effect that Kiiza Jeles was a caretaker of the suit land for an on behalf of the plaintiff.

- 3 I have examined the evidence. PW3 testified that the suit land belonged to the late Kadoma and upon his death, his father the late George Buzige became the caretaker. That after the death of his father in 1981 PW3 became caretaker. He did claim to - 6 have been appointed care taker of the suit land by the plaintiff. In cross examination PW3 stated that Ruhunga never used the suit land. PW3 sued Kisoke Samson in his capacity as a nephew of Kadoma. PW1 in cross examination also stated that after - 9 the death of Kadoma, it is the defendant's family that remained in use of the land. PW3 clearly indicated that he had never met the plaintiff and the plaintiff had never used the suit land. One wonders how he could then become a care taker of someone - 12 unknown to him and for land he was never in possession. I thus agree with Mr. Ngaruye that the learned trial magistrate erred in concluding that Kiiza Jeles was care-take.

## 15 *(c) The appellants being bonafide occupants:*

It was argued for the appellants that 1st appellant and her late husband had been on the suit land for a long time and developed the same with eucalyptus trees, avocado 18 tress, jack fruits, food crops and had a farm thereon. That as such they qualified as bonafide occupants. In reply, Mr. Wahinda submitted that the appellant did not plead bonafide occupancy and court could not declare them as such.

21 Order 6 rule 19 is to the effect that parties are bound by their pleadings. Thus a party cannot be allowed to succeed on a claim that is not set out in the pleadings (*See Muhammed Sempa v Baliraine Saul, Civil Appeal No. 022 of 2016)*. I have


considered the written statement of defense by the appellants and their evidence in chief; it is not stated anywhere that they claimed to be bonafide occupants. I agree 3 with the submissions of Mr. Wahinda for the Respondent that the appellants could not be allowed to succeed on a claim which was not pleaded. This ground fails.

*(d)The 1st appellant and her husband being the 1st occupants and* 6 *inconsistencies in the Respondent's evidence:*

Mr. Ngaruye insisted that the 1st appellant and her husband were the 1stoccupants of the suit land as opposed to the late Kadoma. Mr. Wahinda on the other hand 9 contended that there was uncontradicted evidence about the late Kadoma being the 1 st occupant and court rightly found him as such.

**PW1 (Kabatongole Erinora)** stated that the suit land initially belonged to Kadoma 12 Kyampamba having acquired the same as a first occupant with approval from her husband, George Ruzige who was the Mukungu. In cross examination she stated that by the time Kadoma got the land, his wife had already deserted him.

15 **PW2 (Omuhereza Nyanjura Rusoke)** testified that the land initially belonged to Kadoma Kyampamba. In 1975 PW2 found Kadoma Kyampamba already on the land. Kadoma Kyampamba had bananas on the suit. Kisoke was a neighbor and was 18 2km away. That Kadoma Kyampamba was buried at Nyaningo and she attended burial. From the death of Kadoma Kyampamba to the time of filing the case, it was the family of the defendants that were in possession of the suit land. Kadoma died 21 40 years ago. The plaintiff had never used the suit land.

**PW3 (Kiiza Jeles)** testified that the land belonged to Kadoma who was a grandfather of the plaintiff. Kadoma acquired the suit land by first occupancy with approval from


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his father George Buzige. Kisoke had been on the suit land for more than 15 years. Ruhunga has never used the suit land.

- 3 PW4 and PW5 testified that the land belonged to Kadoma which was inherited by his son Ruhunga and upon the death of Ruhunga, the land was passed to the Respondent. PW4 stated that he knew Kadoma and used to stay on the suit land. He - had a residential house on the said land and was buried there. The 1st 6 defendant was a neighbor to the suit land and there were clear boundary marks. That during the life time of Kadoma, Kisoke (1st appellant's husband) never claimed the suit land. PW6 - 9 informed court that the suit land initially belonged to his grandfather Kadoma Kyampamba who acquired it by way of first occupation with authority and approval from the local chief locally known as the Mukungu (George Ruzige). - 12 **DW1 (Kisoke Alice)** stated that the suit land belonged to her and her late husband Kisoke Samson who died in 2008. That the said land was acquired in 1973 by first occupation and in or about 1974, they started occupying the same to date. Later, her 15 husband applied for a lease over the suit land and in 1991, he was granted a lease offer thought the title had not been processed. That Kadoma was a distant relative of her husband who came to the village from Kiswala village about 1976 seeking - 18 treatment because he was suffering from an ailment in the genitals. They cared for him until he died. Because of the political environment and distance, Kadoma was buried on the suit land and she attended burial. DW1 had been using the suit land - 21 since time immemorial. The plaintiff attempted to fence off the suit land in 2016. DW1 had been on the suit land since 1974.

**DW2 (Kisembo Edson)** testified that he was a son to the late Kisoke Samson, the 24 original owner of the suit land. The land is about 300 acres. In 1985 when he became


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of majority age, his father gifted him a portion of the land and he constructed a home and started cultivating. He has been in occupation of the suit land since then.

- 3 **DW3 (Rwakiseta George)** testified that he was the chairperson of Isomoro village and has been acting for 10 years. DW3 shifted from Kitongole in 1981 and found Kisoke Samson and his family on the suit land. - After re-evaluating the evidence, I find that the 1st 6 defendant's story of how she acquired the land with her late husband was more believable. DW1 was certain on when they acquired the suit land and even made efforts to secure a land title for the - 9 suit land. She clearly indicated how the late Kadoma got on the land and how Kadoma was buried on the suit land. Her evidence of occupation since 1974 was not successfully challenged. PW2 confirmed that since the death of Kadoma, the 1st - 12 appellant's family remained in possession of the suit land throughout. This was supported by PW1 and PW3 who stated that neither Ruhunga nor the Respondent were in possession of the suit land; that the appellant's family had been in possession - 15 of the suit land for a period beyond 40 years.

I therefore agree with learned counsel Mr. Ngaruye that the trial magistrate did not critically examine the evidence on record and the contradictions therein to arrive at

a proper finding. If he had done so, the probable conclusion was that it was the 1st 18 appellants who were the owners of the suit land and who had been in possession for so many years under the watch of the plaintiff. This ground therefore succeeds.

## 21 **GROUND 3:**

The online Black's Law Dictionary defines the term "bias" as an Inclination, bent or prepossession. That it is a preconceived opinion, a predisposition to decide a cause


or an issue in a certain way, which does not leave the mind perfectly open to conviction. That connotes "*a [particular](https://thelawdictionary.org/particular/) influential power, which sways the*

- 3 *judgment; the inclination of the mind towards a particular object*." Bias may be express or implied. It goes beyond mere apprehension concerning a judicial officer or the fact that a decision was made which was not desirable to a party alleging bias. - 6 (See *Male Mabirizi K. Kiwanuka v The Kabaka of Buganda, SCCA Ni. 13 of 2018*).

I have considered the evidence on record. The matter came up in court on 10th May 2017 and court heard evidence of PW1, PW2 and PW3 and it was adjourned to 11th 9 July 2018 for further hearing in the presence of the appellant's counsel Mr. Muhumuza. On the 11th July 2018, counsel for the Respondent appeared with three 12 witnesses for further hearing of the plaintiff's case. The appellants/defendants informed court thus; "*our lawyer told us that he is not coming. He did not tell us why. He simply said that we should apply for another date."* The trial Magistrate 15 made a ruling to the effect that no sufficient cause was advanced by the defendant's counsel court to warrant an adjournment. On 17th July 2019, Mr. Muhumuza. Learned counsel for the defendant made a prayer to recall the witnesses for cross 18 examination since the case was heard in his absence on account that he was not served with a hearing notice. He stated that he intended only to cross examine the plaintiff. Mr. Ahabwe (RIP) for the Respondent indicated in reply that the matter 21 was adjourned in the presence of the defendants' counsel and it did not require a hearing notice. Court granted the prayed to recall PW6 who the defendants were interested in cross examining. In my re-evaluation there was no bias exhibited by the

24 trial Magistrate during hearing and this ground therefore fails.


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Grounds 1, 2, 4, 5 and 7 have succeeded while grounds 3 and 5 fail. In the result the appeal succeeds with the following orders:

- 3 **1. The judgment and orders issued by the trial Magistrate in FPT – 00 – CV – CS No.08 of 2016 are hereby set aside.** - **2. A declaration doth issue that the suit land belongs to the 1st appellant and** 6 **the estate of the late Kisoke Samson.** - **3. The respondent is hereby ordered to vacate from the suit land within 3 months from the date of delivery of this judgment in default of which an** - 9 **eviction order herewith issued shall be executed against the respondent.** - **4. Costs are granted to the appellant only in the High Court.**

**I so order.**

Vincent Wagona

**High Court Judge / Fortportal**

15 **DATE: 19/04/2024**