Kissa v Chesang (Civil Appeal 56 of 2024) [2025] UGHC 50 (19 February 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CIVIL APPEAL NO. 0056 OF 2024

# (Arising from Civil Suit No. 46 of 2021)

#### KISSA BOSCO :::::::::::::::::::::::::::::::::::

#### **VERSUS**

<table>

CHESANG SINDET FRED ::::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### JUDGMENT

#### 1. Introduction:

2. The Plaintiff/Appellant instituted Civil Suit No. 46 of 2021 against the Defendant/ Respondent for a declaration that the Plaintiff is the lawful owner of the suit land, a declaration that the Defendant is a trespasser on the suit land, an eviction order doth issue against the Defendant, a permanent injunction be issued against the Defendant and his agents for further claims for trespass on the suit land, general damages for trespass and costs of the suit.

#### 3. Background:

- 4. The Appellant's claim in the lower court was that the Appellant is the lawful owner of the suit land having bought the same in 2008 from Sikoria E. K acting on behalf of court. That before the purchase of the suit land, the suit land was the property of Banan Moses (judgment debtor) vide MBA -23-MC 003 of 2007 and the same was attached for sale by court through Chema Sub-County Chief –Sikoria E. K. - 5. He contended that after the purchase of the suit land, he took possession and use of the same through cultivation of coffee, bananas among others. Unfortunately, the Defendant on the 11th of February, 2020 unlawfully

trespassed on the suit land when he leveled part of the suit land with a grader for construction and in the process cleared or cut down bananas, coffee and some trees.

- 6. The Respondent on the other hand in his written statement of defence denied the Appellant's allegations and averred that he is not a trespasser on the suit land but a lawful purchaser. He contended that the land in issue could not have been sold by Sikoria E. K who was not the owner and not sub-delegated by a court bailiff to execute any sale. - 7. The Respondent further averred that he is the current owner and user of the disputed land having purchased the same in December, 2019 without any other person until 2020 when he was summoned at police by the Appellant.

# 8. The issues for trial court's determination were-

- (a) Who is the rightful owner of the suit land? - (b) Whether the defendant is a trespasser on the suit land? - (c) What are the remedies available? - 9. The trial magistrate's findings were that the Plaintiff/Appellant did not lead evidence to show that the land in dispute ever belonged to the judgment debtor and hence, resolved that the suit land belonged to the Respondent as a bonafide purchaser and declared him the lawful owner. The trial magistrate further awarded costs to the Respondent. - 10. The Appellant was aggrieved with that decision hence this appeal.

#### 11. Grounds of appeal.

- (a) The learned trial magistrate erred in law and in fact when he held that the Appellant did not carry out due diligence before purchasing the suit land. - (b) The learned trial magistrate erred in law and fact when he held that the Respondent was not a trespasser thereby dismissing the Appellant's suit. - (c) The learned trial magistrate erred in law and fact in failing to consider the evidence collected from locus regarding the ownership, trespass,

construction of structures by the Respondent's witness onto the suit land.

- (d) The learned trial magistrate erred in law and in fact when he failed to adequately or at all to evaluate the evidence on court record as a whole and as a result, arrived at an erroneous decision that is prejudicial to the Appellant. - (e) The learned trial magistrate erred in law and fact when he condemned the Appellant to pay costs. - (f) The decision of the learned trial magistrate has caused a miscarriage of justice. - 12. He prayed that the appeal be allowed, the judgment and orders of the court below be set aside and the Appellant be awarded costs.

### 13. Legal representation

- 14. Counsel Iman Ali represented the Appellant and Counsel Nancy Cheptoik holding brief for Counsel Gabriel Cheptoik represented the Respondent. - 15. At the hearing, the parties agreed to proceed by way of written submissions and all parties complied. I will consider them as and when necessary in the judgment.

## 16. Duty of the first appellate court

17. I must note that when a matter comes to court as an appeal, we have already been guided by the Supreme Court in **Fr. M. Begumisa & Ors V.**

E. Tibegana SCCA No. 17 of 2003 when it held that-

"The appellate court has to bear in mind that its duty is to rehear the case and the court must consider the trial before the *Judge with such materials as it might have decided to admit. The court must then make up its own mind not disregarding the* judgment appealed from but carefully weighing and considering it and not shrinking from over ruling it if on full consideration, the court comes to the conclusion that the judgment is wrong"

18. Failure to take the above approach into account was faulted by the Supreme Court in Moses Bogere V. Uganda SC Crim. App. No. 10 of **1997** where their Lordship stated that;

> "What causes concern to us about the judgment, however is that it is not apparent that the Court of Appeal subjected the *evidence as a whole to scrutiny that it ought to have done ........ While we would not attempt to describe a format in which a* judgment of the court should be written, we think that where a material issue of objection is raised on appeal, the appellant is entitled to receive an adjudication on such matter. On such issue from the appellate court".

19. The Apex Court ended this point by referring to its own earlier decision of **Kifamute V. Uganda SC Crim. Appeal No. 10/1997** where it held that:

> "Failure by the first appellate court to evaluate the material *evidence as whole constitutes an error in law".*

- 20. Also see SC Crim. Appeal No. 03/2013 Akbar Hussein Godi V. Uganda - 21. I will answer the grounds the way the appellant elected to frame them from the very first.

#### 22. Analysis of court

- 23. Ground No.1: The learned trial magistrate erred in law and in fact when he held that the Appellant did not carry out due diligence *before purchasing the suit land.* - 24. I have reviewed the court record and noted the Appellant's claim that they purchased the suit land from DW5, who was instructed by the Kapchorwa Chief Magistrate's Court to conduct an attachment and sale of the property. This property allegedly belonged to the judgment debtor, Benan Moses, in Family Cause No. 00013 of 2007 - 25. Order 22 rule 10 of the Civil Procedure Rules SI.71 provides that-

$\overline{4}$

"Where an application is made for the attachment of any immovable property belonging to a judgment debtor, it shall contain at the foot-

(a) a description of the property sufficient to identify it, and, in case the property can be identified by the boundaries, or numbers in Government records or surveys, a specification of those boundaries or numbers; and

(b) a specification of the judgment debtor's share or interest in *the property to the best of the belief of the applicant, and so far* as he or she has been able to ascertain the share or interest.

- 26. In essence, the aforementioned legal provision mandates sufficient due diligence regarding the land subject to an intended attachment and sale before a court order can be issued. - 27. In this instance, DW5, who claimed to have been instructed to attach and sell the suit land, stated that upon receiving the instructions, he visited the suit land and was informed that the land did not belong to the judgment debtor, Benan Moses. - 28. That evidence indicates that the judgment creditors in Family Cause No. 00013 of 2007 did not do the necessary due diligence required by the above quoted provision of the law. Hence, gave court wrong information. - 29. The Appellant testified that a relative informed him about the sale of the suit land after seeing an advertisement on the sub-county notice board. Upon seeing the advertisement, the Appellant was obligated to conduct further investigations into the advertisement's validity and the land's ownership, but he failed to do so. - 30. If he had done so, it would have come to his notice that the suit land did not belong to the judgment debtor like DW5 found. - 31. According to the court record, no document was tendered in court to prove that the suit land ever belonged to the judgment debtor Benan Moses. - 32. Therefore, the trial magistrate was right to find that the Appellant did not carry out the necessary due diligence before purchasing the suit land.

- 33. Ground No.1 is answered in the negative. - 34. Ground No.2: The learned trial magistrate erred in law and fact when he held that the Respondent was not a trespasser thereby dismissing the Appellant's suit. - 35. I have carefully reviewed the trial court's judgment and observed that while determining whether the Respondent was a trespasser or not, the trial chief magistrate relied on the locus classicus case of Justine E. M. N Lutaya V. Sterling Civil Engineering Co. Ltd (2003) KALR 79 which outlines the ingredients to be considered in establishing the existence of trespass. - 36. Those ingredients include; whether the disputed land belong or is owned by the Plaintiff, whether the defendant entered upon the suit land without the Plaintiff's consent or lawful authority and whether the entry is unlawful since it was made without the Plaintiff's permission. - 37. The ingredients stated above therefore requires that before establishing whether there is trespass or not, ownership must be established. - 38. From the court record, the Respondent who testified as DW1 told court that he purchased the suit land from a one Tyole Shafic a son of Mwanga Moses at a consideration of Ugx: $45,000,000/$ = and an agreement was made in the presence of the LC. 1 Chairperson and the clan head of Kapchay. - 39. His evidence was supported by DW2 Tyole Shafic who testified that the suit land belonged to his late father Mwanga Moses having purchased the same from Chebet Moses on 15th of October, 2006. He said after purchase, his father took possession of the suit land and later in 2012 donated it to him. He adduced in court the sale agreement between his late father Mwanga Moses and Chebet Moses and it was admitted in court for identification purpose. - 40. DW2 further told court that he does not know a person by the names of Benan Moses and that the suit land has never belonged to him. DW2's evidence was buttressed by DW3 and DW4.

$\Delta$

$\mathsf{6}$

- 41. On the other hand, the Appellant alleged to have purchased the suit land through a court auction but the person (DW5) who was allegedly instructed to carry out the said sale by auction, denied conducting the said activity. DW5 further denied selling the suit land to the Appellant. He added in re-examination that the handwriting for his name and the signature in the agreement for the sale of the suit land to the Appellant is not his. This evidence was not rebutted by the Appellant. - 42. Secondly, I have looked at the Appellant's sale agreement which was tendered in court as PEXH.4. The said document is not witnessed and the month within which the agreement was made is not indicated. - 43. According to the court record, it is also not indicated whether a clear description and size of the land was ever delivered at court before attachment and sale. - 44. There is further no evidence to show whether the said land was valued before attachment and sale. - 45. In addition to the above, the person alleged to have conducted the attachment and sale was a sub-county chief and not a bailiff as required by the law. - 46. DW5 testified that after finding out that the suit land did not belong to the judgment debtor, he did not take any further step. In other words, he denied selling the suit land to the Appellant. - 47. In light of the above, it is clear that the process through which the Appellant allegedly acquired the suit is tainted with so many illegalities which this court cannot condone. - 48. The trial magistrate, was therefore right when he found that the Respondent was not a trespasser on the suit land. - 49. Ground No.2 is answered in the negative. - 50. Ground No.3: The learned trial magistrate erred in law and fact in failing to consider the evidence collected from locus regarding the ownership, trespass, construction of structures by the Respondent's witness onto the suit land.

$\overline{7}$

51. In Mukasa V. Uganda (1964) EA 698 at page 700 Sir Udo Udoma CJ $(R. I. P)$ stated that-

> "a view of a locus in quo ought to be, I think, to check on the evidence already given and, where necessary, and possible, to have such evidence clearly demonstrated in the same way a court examines a plan or map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view a judge or magistrate should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be substituted for evidence.

- 52. Generally, the purpose of locus proceedings is to enable court check on the evidence given by the witness in court, and not to fill gaps in their evidence for them. - 53. I have reviewed the locus proceedings on pages 24 to 27 of the record of proceedings and noted that, instead of demonstrating the boundaries, size, possession, and neighbors of the suit land to the court, the witnesses provided new testimony. - 54. As stated in the above authority, the purpose of a locus in quo visit is primarily to establish the boundaries of the disputed land, rather than to fill in evidentiary gaps for the parties. - 55. I have also read the judgment of the trial magistrate and I am satisfied that the trial magistrate properly considered the evidence at locus. - 56. Ground No. 3 is answered in the negative. - 57. Ground No.4: The learned trial magistrate erred in law and in fact when he failed to adequately or at all to evaluate the evidence on court record as a whole and as a result, arrived at an erroneous decision that is prejudicial to the Appellant.

58. Order 43 rule 2 of the Civil Procedure Rules SI.71 provides that-

"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively."

- 59. In National Insurance Corporation V. Pelican Air services, Civil Appeal No. 15 of 2003 the Court of Appeal while citing rule 86 of the rules of that court relied on the Supreme Court decision in Sietico V. Noble Bulibers (U) Ltd SCCA No. 31 of 1995 and held that- "a ground of appeal must challenge a holding, a ratio decidendi and must specify the *points which were wrongly decided.*" - 60. In the case of Arim Felix Clive V. Stanbic Bank (U) Ltd, CACA No. 101 **of 2013,** the Court of Appeal struck out a ground of appeal which was framed as follows- "That the learned trial judge erred in law and in fact *when he did not properly evaluate the evidence on record and thereby came to a wrong conclusion and occasioned a miscarriage of justice to the appellant.*" The court stated that the ground was too general and allows the Appellant to go on a fishing expedition to the prejudice of the Respondent. - 61. In this case, the fourth ground as quoted is similar to the ground which was struck out by the Court of Appeal in the case of **Arim Felix Clive V. Stanbic Bank (U) Ltd (Supra)** for being too general. I am bound by that holding. - 62. The position in National Insurance Corporation V. Pelican Air services (Supra) is that the grounds of appeal must relate to the ratio decidendi and specify the issues which were wrongly decided. However contrary to that provision, in the instant case, grounds No.4 of this appeal does not relate to the *ratio decidendi* nor specify the issues which were wrongly decided. - 63. In the circumstance, Ground No.4 is struck off the court record for offending the provision of the law. - 64. Ground No. 5: The learned trial magistrate erred in law and fact when he condemned the Appellant to pay costs.

65. Section 27 (2) of the Civil Procedure Act provides that-

"the fact the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of the powers in subsection (1); but the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order."

- 66. Following the above provision, the Respondent having been the successful party in Civil Suit No. 46 of 2021, the trial magistrate was right to award costs to him since costs follow event. - 67. Ground No. 5 is answered in the negative - 68. Ground No. 6: The decision of the learned trial magistrate has caused a miscarriage of justice. - 69. Considering my analysis in the body of this judgment, it is obvious that the decision of the trial magistrate did not occasion any miscarriage of justice to the Appellant. - 70. This appeal is accordingly dismissed in the terms below- - (a) The lower court decision, judgment and orders are upheld. - (b) Costs of this appeal are awarded to the Respondent.

I so order.

# LUBEGA FAROUQ Ag. JUDGE

Judgment delivered via the email of the Advocates of the parties on 19th day of February, 2025.