Kiwanuka v Muwanga (Civil Appeal 13 of 2022) [2025] UGHC 198 (16 April 2025)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 13 OF 2022 ARISING FROM CIVIL SUIT NO. 0062 OF 2018 AT THE CHIEF MAGISTRATE 'S COURT OF RAKAI AT KALISIZO)**

**KIWANUKA DEZIDERIO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

#### **VERSUS**

**MUWANGA KAMAGU ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

# **JUDGMENT**

#### **Introduction.**

1. This is an Appeal in which the Appellant being dissatisfied with the Judgment and orders of His Worship Mfitundinda George Magistrate Grade One at the Chief Magistrate s Court of Rakai at Kalisizo in Civil Suit No.062 of 2018, brought this appeal seeking orders that the Appeal be allowed, the Judgment and decree of the Trial Magistrate Court be set aside and the costs of this Appeal and the Court below be awarded to the Appellant.

### **Brief Background to the Appeal.**

- 2. The background as per the lower Court is that the Appellant /Plaintiff instituted Civil Suit No. 062/2018 against the Respondent /Defendant seeking for a declaration that the Defendant is a trespasser on the Plaintiff's Kibanja situate at Kakoma village, Kalisizo Town Council, Kyotera District, eviction orders against the Defendant permanent injunction restraining the Defendant from further trespass, general damages, interest on general damages and costs of the suit. - 3. From the record of the lower Court and in the Plaint, the Appellant/ Plaintiff averred that he bought the suit Kibanja from the late Mujuzi in 1989 at Ug. Shs.

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5000/=(Five Thousand Shillings Only). That he took possession of the same and has been using it to grow seasonal crops. That in 2018, the Defendant trespassed on the said property and started clearing it for cultivation. That the Defendant has been so provocative to the Plaintiff because he was sued for trespassing on the Plaintiff's neighbouring Kibanja to the Kibanja in dispute. That the case was decided against the Defendant and now he has trespassed on another Kibanja for the Plaintiff.

- 4. For the Respondent/Defendant he denied the allegations in the Plaint and averred that he is not a trespasser on the suit Kibanja. That the Defendant acquired the suit Kibanja by way of donation by his late father Deziderio Ssedamuka in 1980. That the Defendant's father paid Envujjo for this Kibanja, and attached copies. That immediately after the said donation, the Defendant got possession and started utilizing his Kibanja. That the Defendant developed the suit Kibanja, he planted Eucalyptus forest, banana plants and seasonal crops thereon. That the suit Kibanja has clear demarcations (trenches) and the Defendant has been all along cultivating within the boundaries of his Kibanja. - 5. That the Defendant's Kibanja shares boundaries with the Plaintiff's Kibanja but the Defendant has never encroached onto the Plaintiff's Kibanja. That it is the Plaintiff who encroached onto the Defendant's Kibanja in 2014, closed the trench that separates both parties' Bibanjas and planted Eucalyptus trees thereon. - 6. The Trial Magistrate Court found in favour of the Respondent/Defendant and wrote a judgment to that effect. The Appellant being dissatisfied with the said Judgment delivered on the 23rd February 2022 filed this Appeal.

# **The Grounds of Appeal.**

- 7. The Appellant raised four (4) grounds of appeal in his Memorandum of Appeal namely that: - *1. The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate evidence on record as a whole thereby arriving at a wrong conclusion which led to miscarriage of justice.*

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- *2. The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence of PW1 Deziderio Kiwanuka that proved that he acquired the suit Kibanja.* - *3. The Learned Trial Magistrate erred in law and fact when he failed to consider the sale agreement tendered in by the Appellant proving ownership of the suit Kibanja thereby arriving at a wrong conclusion.* - *4. The Learned Trial Magistrate erred in law and fact when he wrongly held that the suit Kibanja was customary land without any proof.*

## **Representation and hearing.**

8. The Appellant was represented by M/s Sanywa, Wabwire & Co. Advocates, while the Respondent was represented by M/s Xander Advocates. The parties were directed to file written submissions but only Counsel for the Appellant filed submissions. There are no submissions from the Respondent on record, and in case the Respondent filed submissions, it has not been brought to my attention at the time of this Judgment, I have made this judgment without submissions from the Respondent.

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

- 9. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*. - 10. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).*

#### **Consideration of Appeal**

11. I have read the record of the lower Court, the judgment, and pleadings. This Court is required under Section 80 of the Civil Procedure Act Cap 71scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. See: *F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006* (supra).



- 12. I shall therefore proceed to reappraise the evidence and come to my own conclusion as required by law. In so doing, I am of the view that although the Memorandum of Appeal sets forth 4 grounds, they actually relate to the following two questions a determination of which will dispose of this appeal: - *1. Who is the rightful owner of the suit Kibanja?* - *2. What remedies are available to the person envisaged in (1) above?* - 13. Court shall proceed to answer the above questions in turn. 1. *Who is the rightful owner of the suit Kibanja?* The Appellant and the Respondent all lay claim to the suit property. At the Trial Court, the Appellant claimed that he bought the suit Kibanja from the late Mujuzi in 1989 at Ug. Shs. 5000/=(Five Thousand Shillings Only). That he took possession of the same and has been using it to grow seasonal crops. On the other hand, the Defendant/Respondent claimed that he acquired the suit Kibanja by way of donation by his late father Deziderio Ssedamuka in 1980. That the Defendant's father paid Envujjo for this Kibanja, and attached copies. That immediately after the said donation, the Defendant got possession and started utilizing his Kibanja. That the Defendant developed the suit Kibanja, he planted Eucalyptus forest, banana plants and seasonal crops thereon. - 14. The Trial Magistrate held at page 3 of his judgment that:

*"In the instant case, whereas the Plaintiff said that he was paying Busuulu, the said Busuulu receipts were not tendered in Court as exhibits. Photocopies of receipt dated 5th October, 1964 was tendered for identification purposes. In addition to the above PWl and PW2 told Court that they were grazing on the Kibanja in dispute, however on the visit to locus there was no evidence of such activities. Considering the above, I find that the Kibanja in dispute does not belong to the Plaintiff."*

- 15. The Trial Magistrate further found that the Appellant/Defendant was not a trespasser on the suit Kibanja. In coming to the above conclusions, the Trial Magistrate considered the evidence of PW1, Kiwanuka Deziderio, and PW2- Mujuzi Livingstone, and the evidence on record. This implies that the Trial Magistrate considered the evidence on record and the testimonies before coming to a conclusion. - 16. Upon clear scrutiny of the record, I find that the Appellant during his testimony did not present sufficient evidence to indicate that the suit Kibanja belonged to him. According to Page 6 of the record of proceedings, the Appellant as Plaintiff

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presented an agreement dated 7th March 1989 and it was admitted as PEX1. I have looked at the said agreement, and I note that at the trial Court, there was and even in this Court record there is no English translation of the same, it is in Luganda language which is not the language of Court. Section 88 of the Civil Procedure Ac provides that "*the language of all Courts shall be English and evidence in all Courts shall be in English*". In this case, the said agreements in Luganda language would not have been admitted in the first place without the English translation; and the Trial Magistrate, it had no evidential value since it was in breach of Section 88 of the CPA, and Court cannot rely on it. Be that as it may, the said document only indicates the purchaser as Deziderio Kiwanuka but does not indicate who the seller was, also the said agreement does not identify any Kibanja. In my view, PEX1 lacks the basic characteristics of a valid document that disposes or sells property, since it misses identifying the important party, the vendor and also the subject matter as a Kibanja is not mentioned. As noted earlier, the said agreement had no evidential weight in Court.

- 17. Moreover, as noted by the Trial Magistrate , the Appellant as Plaintiff did not prove that he had ever used the suit Kibanja at locus. To the contrary, the Respondent/ Defendant was found to be in actual use and possession of the suit Kibanja. Even if the Appellant/ Plaintiff had an interest in the suit Kibanja, which he did not prove, uninterrupted and uncontested possession of land for a specified period, hostile to the rights and interests of the true owner, is considered to be one of the legally recognized modes of acquisition of ownership of land (**See** *Perry vs. Clissold [1907] AC 73, at 79*). - 18. In this case, the Plaintiff did not prove any occupation nor any usage of the suit Kibanja at any point in time. In civil proceedings, the burden of proof lies upon the person alleging. *Sections 101,102 & 103 of the Evidence Act* provide that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless any law provides that the proof of that fact shall lie on any particular person. Such proof in civil matters is on the balance of probabilities, which evidence should be of such a quality that a tribunal properly directing its mind to the law and the facts would think that it is more probable than not. *(see Miller vs Minster of Pensions (1947) 2 All ER 372*). - 19. 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

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burden. When a Plaintiff has led evidence establishing their claim, they are said to have executed the legal burden. The evidential burden thus shifts to the Defendant to rebut the Plaintiff's claims **(***See Asha Ali Suleman and another Versus Nassanga Aysha Salma and another Civil Suit No. 338 of 2015 (2022).*

- 20. These principles were instructive in determining this suit before the Trial Magistrate. The Plaintiff did not lead any sufficient evidence to prove that he owns the suit Kibanja. This indicates that there was no sufficient available evidence for the Trial Magistrate to find in favour of the Appellant who failed to discharge his burden of proof. It is my finding that the Trial Magistrate rightly found that the suit Kibanja belonged to the Respondent/ Defendant. - 21. From the re-evaluation of the evidence above, I absolutely have no doubt in my mind that, that the Respondent is the rightful owner of the suit Kibanja and the Appellant has no protected interest therein. - 22. This appeal fails and is hereby dismissed with costs awarded to the Respondent. The judgment and orders of the Trial Magistrate are upheld. I hereby make the following orders: - a. This Appeal is dismissed. - b. The judgment and orders of the Trial Magistrate are upheld. - c. Costs of this Appeal and the Court below are awarded to the Respondent.

It is so ordered.

Judgment signed and delivered electronically at Masaka this 16th day of April, 2025

…………………………………… **LAWRENCE TWEYANZE JUDGE. 16th April, 2025.**