Kume v Kirya (Civil Appeal 119 of 2019) [2024] UGHC 1107 (12 December 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CIVIL APPEAL NO. 0119 OF 2019

[Arising from Kibuku Chief Magistrate Court Civil Suit No. 05 of 2017]

ELEANOR MARJORIE KUME ::::::::::::::::::::::::::::::::::::

### **VERSUS**

# KIRYA EDWARD ::::::::::::::::::::::::::::::::::::

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

### **JUDGMENT**

### 1. Introduction:

2. This Appeal arises from the decision of Adong Molly Alice a Grade One that case, the Plaintiff/Appellant sued the Magistrate. In Defendant/Respondent for recovery of about 10 acres of land, permanent injunction restraining the defendant from further encroaching to the suit land, declaration that the suit land belongs to the Plaintiffs, general damages and costs of the suit.

### 3. Background:

- 4. The Appellants facts in the trial court were that the Plaintiff acquired the suit land after the death of her father Mudenya Ernest who died in 1961. That her father also got the said land from Kimumgha Matayo and his sister called Namugonsa who both died around 1946 and the Plaintiff has been on the suit land since her birth in 1942. - 5. The Respondents facts in the trial court were that the Appellant has no interest whatsoever in the suit land and that the Plaintiff's father, the late Mudenya Ernest did not acquire any interest equitable or legal in the suit land. That the said land passed on from Lago Kyamukwayite the Respondent's great grandfather to his four children namely; Kimungha

Matayo, Namba Gongobelo, Samba Simon and Kabejja Namaiso. That the late Mudenya Ernest was a Munyole by tribe from the Bebengo Clan of Kikaalu village Butaleja District who was a brother to Namugosa Mendera (wife to late Kimungha Matayo).

- 6. The Respondent further stated that the late Mudenya Ernest was invited on the suit land by Namugosa Mendera as a licensee and the late Mudenya Ernest came to the suit land with his children the Appellant inclusive. That the Appellant's father Mudenya Ernest died and was buried on the suit land because Babengo clan members could not transport the body to Bunyole. - 7. The Respondent added that after the death of Mudenya Ernest, the Appellant and her siblings relocated to Bunyole and only visited relatives Like Namaiso Soga (a daughter to Namugosa Mendera) who lived on the suit land. He contended that the Appellant last resided on the suit land in 1962 and only encroached and trespassed on the same in the year 2015 after attending the burial of her Auntie Namaiso Soga.

# 8. Issues for the trial court's resolution

- 9. The issues for trial court's resolution were as follows- - (a) Whether or not the Plaintiff owns the suit land? - (b) What remedies are available to the parties? - $10.$ The above issues were resolved in favour of the Respondent. In her judgment the trial magistrate found that the Appellant failed to prove that the suit land was given to her late father Earnest Mudenya. - The Appellant was dissatisfied with the above decision hence this 11. appeal.

#### 12. Grounds of appeal

- 13. The Appellant framed nine grounds of appeal and they are as below- - (a) That the learned trial magistrate did not evaluate the evidence properly at all as a result she reached a decision which is insupportable; - (b) That the decision of the learned trial magistrate is tainted with fundamental miss-direction and non-direction in law and in facts;

- (c) That the decision of the learned trial magistrate is against the weight of the evidence: - (d) That the learned trial magistrate erred in law and fact upon her failure to exercise the judicial function to adequately appraise and evaluate the evidence and legal arguments as a whole thus occasioning a miscarriage of justice; - (e) That the learned trial magistrate erred in law and fact upon her failure to declare the party to whom the suit land belongs; - (f) That the learned trial magistrate erred in law and fact when she held that the plaintiff had failed to prove that late Matayo Kimungha gave the suit land to the plaintiff's late father Mudenya Ernest; - (g) That the learned trial magistrate erred in law and fact when she held that the plaintiff's evidence of her continued stay and construction of a permanent house on the suit land was contradictory as such occasioning a miscarriage of justice; - (h) That the learned trial magistrate erred in law and fact upon her failure to exercise the judicial function to adequately appraise and evaluate the evidence and legal arguments as a whole thus occasioning a miscarriage of justice; - (i) That the learned trial magistrate erred in law and fact when she dismissed the plaintiff's suit with costs to the defendant. - 14. She prayed that the appeal be allowed, the judgment and decree in the court below be set aside and that she be awarded costs of the appeal and for the court below.

#### **15. Legal Representation**

- Counsel Obedo Deogratius represented the Appellant and the 16. Respondent was represented by Counsel Obbo Alex. - At the hearing, parties requested to proceed by written submissions. 17. Their prayer was granted and schedules for the same were given. Both parties complied. I will consider them in the determination of this matter.

### Duty of the first Appellate court 18.

This court is aware of its duty as the first appellate court to subject 19. the evidence adduced in the trial court to fresh scrutiny and come to its own conclusion not forgetting that it did not get the chance to see the demeanor of the witnesses. For brevity see the case of Fr. M. Begumisa &

Ors V. E. Tibegana SCCA No. 17 of 2003.

#### 20. *Preliminary objection.*

- Before I delve into the merit of this appeal, I will consider the 21. preliminary objection raised by Counsel for the Respondent in his submissions first. - Counsel for the Respondent submitted that grounds 1, 2, 3, and 4 22. of the memorandum of appeal are too general and do not specifically point out the exact error of law or fact which the learned trial magistrate is accused of having wrongly decided. - He cited Byebiroha Protazi V. Bajungu Aida & Anor Kabale High 23. Court Civil Appeal No. 0037 of 2020 where it was held that- "Grounds of appeal must be concise and devoid of arguments or narrative. The Grounds of appeal must also specifically point out the errors observed in the course of the trial including the decision which the appellant thinks cause a miscarriage of justice." - Counsel for the Appellant however on the other hand submitted that $24.$ grounds 1, 2, 3, and 4 are not concise but the same is not fatal. He cited Fredrick K. K Zaabwe V. Orient Bank Ltd & Others Supreme Court Civil Appeal No. 04 of 2006 where court observed that some grounds of appeal offended the rules of law but in the interest of justice, court considered them despite the defectiveness. He prayed that grounds 1, 2, 3, and 4 be determined by this court.

#### **Determination of court** $25.$

Order 43 rule 2 of the Civil Procedure Rules SI.71 provides that-26. "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."

$\ln$ National Insurance Corporation V. Pelican Air services, Civil $27.$ 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."

In the case of Arim Felix Clive V. Stanbic Bank (U) Ltd, CACA No. 28. 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.

In the instant case, the grounds being challenged by counsel for the 29. Respondent are-

- (a) That the learned trial magistrate did not evaluate the evidence properly or at all as a result she reached a decision which is insupportable - (b) That the decision of the learned trial magistrate is tainted with fundamental miss-direction and non-direction in law and in fact. - (c) That the decision of the learned trial magistrate is against the *weight of the evidence* - (d) That the learned trial magistrate erred in law and fact upon her *failure to exercise the judicial function to adequately appraise and* evaluate the evidence and legal arguments as a whole thus occasioning a miscarriage of justice.

$\mathsf{S}$

- On proper reading of the above grounds of appeal, it is clear that 30. they do not challenge the ratio decidendi nor address the points of grievance, but rather are too general contrary to order 43 rule 2. - For the above reason, I agreed with the submissions of counsel for 31. the Respondent that the said grounds are not specific. - Counsel for the Appellant however argued court to ignore the 32. defectiveness and instead consider the grounds for determination. With due respect I do not agree with counsel. - It should be noted that courts can only answer clear questions where 33. the grievance complained about can easily be identified. However, at a glance on the above grounds, one cannot establish the points of grievance that the Appellant is complaining about. Therefore, if the Appellant does not know what he is complaining about, then how can court assist him? - 34. In the circumstance, Counsel's objection is accordingly sustained. Grounds 1, 2, 3, and 4 are struck off the court record for offending the provision of the law. - According to the Appellant's submission, he abandoned ground 8. 35. Hence, this court is now left with grounds 5, 6, 7, 9 and 10 for consideration.

#### 36. **Analysis of court**

I will determine grounds 5, 7, 9 and 10 first. Ground 6 will be 37. handled last.

**38.** Ground No. 5: That the learned trial magistrate erred in law and fact upon her failure to declare the party whom the suit land belongs.

39. I have looked at the trial court's judgment and found that the trial magistrate stated that-

> "The plaintiff in cross-examination admit that it was resolved that the suit land belongs to the defendant who was to look after her as his mother, meaning she conceded that the suit land belongs to the defendant...................................

> > 6

plaintiff has failed to prove that the suit land was given to her late father Ernest Mudenya. Ernest Mudenya only stayed on the suit land as an in law and never acquired any interest in the suit land.... Therefore, the first issue is resolved in the negative and I hold that the suit land does not belong to the *plaintiff*"

- 40. The issue which the trial magistrate was resolving was *whether the* plaintiff owns the suit land? Following the statement quoted above, it is clear that the trial magistrate found that the Appellant failed to prove that the suit land was given to her late father hence, it did not belong to her but to the defendant. - 41. In the view of the above, I find that the trial magistrate clearly indicated her position in the judgment. - 42. Ground No. 5 is answered in the negative. - 43. Ground No.7: That the learned trial magistrate erred in law and fact when she held that the plaintiff's evidence of her continued stay and construction of a permanent house on the suit land was *contradictory as such occasioning a miscarriage of justice.* - According to PW1, PW2, PW3 and PW4, it clear that the Appellant 44. lived on the suit land since she was born. The witnesses said the Appellant only left the suit land when she went abroad for further studies and returned in 2016. Since then, she has been in occupation of the suit land to date. - 45. I have therefore not found any major contradiction in the evidence of the said witnesses regarding the Appellant's continued stay on the suit land. - 46. However, regarding whether the Appellant constructed the house where she stays or not, the evidence of the Respondent was that the said house was constructed by late Namaiso Elisa Soga using the money she got after selling her ten cows. This piece of evidence was not rebutted by the Appellant.

$\overline{7}$ In the circumstances, this court takes it that the house where the 47. Appellant stays was constructed by late Namaiso Elisa Soga.

Ground No. 7 partially succeeds. 48.

- 49. Ground No. 9: That the learned trial magistrate erred in law and fact when she dismissed the Plaintiff's suit with costs to the defendant. - Section 27 of the Civil Procedure Act Cap 282 provides that costs 50. follow the events. Therefore, the Appellant's suit having been dismissed by court, the trial magistrate was right to order for costs in favor of the Respondent. - 51. Ground No. 9 is answered in the negative. - Ground No. 6: That the learned trial magistrate erred in law 52. and fact when she held that the plaintiff had failed to prove that late Matayo Kimungha gave the suit land to the Plaintiff's father Mudenya Ernest. - I have studied the entire trial court's evidence and noted that 4 53. witnesses testified for the Appellant and 3 witnesses testified for the Respondent. - 54. From the evidence on the court record, PW1 and PW4 who are daughters of late Ernest Mudenya claim that the suit land belongs to their late father having acquired the same from Matayo Kimungha. However, while PW1 claims that the entire land was given to their late father, PW4 said that their late father was only given a piece of the suit land but she does not know the size of the land nor its boundaries. She claimed that during that time, there used to be no boundaries. I do not believe in that piece of evidence. - For time immemorial, there have always been demarcations marking 55. boundaries that separate one piece of land from another. Unregistered land is typically divided using agreements among neighbors, natural features, or planted boundary markers, which help community members

distinguish their respective pieces of land. Therefore, the claim that boundaries did not previously exist is inaccurate.

- Secondly, PW4 and PW1 said that Matayo Kimungha gave a piece of 56. the suit land to their late father but there was no documentation. However, if this was to be true, the said land should have been given in the presence of some witness. For example, the elders of Bakatikoko clan where late Matayo Kimungha belonged should have known about the same or any of his brothers or wives, but none had such information. - Thirdly, this court wonders how a person who left behind wives and 57. children could give his entire land where he was to be buried to someone who did not belong to his clan or tribe. This is unbelievable. - Be the above as it may, what is however clear from the evidence of 58. both sides, is that the Appellant's late father Ernest Mudenya came on the suit land with his sister Mendera Namugosa when she was getting married to Matayo Kimungha. He lived with them on the suit land, married from there and produced children from the suit land. - The above evidence clearly indicates that the Appellant was born 59. and grew up on the suit land hence, she considered the suit land as home. - 60. It is also not in dispute that the Appellant is related to Mendera Namugosa one of the wives of late Matayo Kimungha which means she is part of the family though not from the same clan or tribe. - 61. The evidence of PW3 the casual laborer who used to work on the suit land indicates that the Appellant lived on the suit land before the Respondent was brought on the suit land. She cultivated and constructed houses thereon. PW3's evidence was further corroborated by PW2. These two witnesses are not related to the Appellant and the Respondent but they are neighbors to the suit land, who for a long time used to see the Appellant live and cultivate the suit land.

- The two witnesses further indicated that there is a period when the 62. Appellant left the suit land and she still controlled and supervised the same. - 63. On the other hand, the Respondent's evidence is that he came on the suit land as a care taker to look after Mendera Namugosa, Nankoma Sarah and Namaiso Elisa Soga. This is evident from DW1's testimony when he said that- "Aslem Kyamukwatte Kome and the family of the late Kimungha Matayo including Mendera Namugosa, Nankoma Sarah and Namaiso Elisa Soga asked me with the permission of my father to care take the suit land and the burial grounds thereon and also look after Mendera Namugosa, Nankoma Sarah and Namaiso Elisa **Soga**." His evidence in that regard was corroborated by DW2 and DW3.

Following the above request, the Respondent started to stay on the 64. suit land and built a grass thatched house thereon as he helped with domestic chores in the homestead.

The Respondent who testified as DW1 further said that the entire 65. land of late Kimungha Matayo was given to him officially on 4<sup>th</sup> of August, 2014 while Namaiso Soga was still alive and she duly thumb printed the document handing over the land to him. However, the said documentation was never tendered in court for court to take judicial notice of the same.

66.

Section 103 of the Evidence Act Cap 8 provides that-

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any particular person."

67.

Further section 106 of the same Act provides that –

"In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person."

- 68. Therefore, the Respondent having claimed that the suit land was given to him and the fact that there was a documentation of the same, he ought to have adduced the said document in court to prove that fact. - 69. I have perused the court record and came across DEX.1 which is a notice that was written by Molokochomo LC.1 village. Still in that letter, the Respondent is described as a care taker of the suit land. - Therefore, in absence of any evidence to the contrary, it is taken by 70. this court that the Respondent is only a care taker of the suit land. For that reason, he has no rights whatsoever to chase the Appellant who was born on the suit land away from it. The Respondent's powers are only limited to taking care of the suit land and also to protect it from trespassers. The Appellant does not however fall under that category being a family member. - The issue that the Appellant did not construct any house on the suit 71. land, cannot erase away the fact that she has been in occupation of the suit land since she was born. - From the court record, it is evident that the late Matayo Kimungha 72. was allocated the suit land, measuring approximately 10 acres, in his capacity as a village chief. This indicates that the land belonged to him. He was married to four wives and had children, who in turn had grandchildren. Consequently, the descendants outlined in this paragraph are the rightful beneficial owners of the suit land, holding full rights over it. - No power of attorney was shown to have been given to the 73. Respondent to manage and control the suit land in order to chase away family members from the suit land. - 74. The Supreme Court of India in Civil Appeal No. 722 of 2016 Government of Goa through the Chief Secretary V. Maria Juietta D'souza D & Others stated that-

"While inquiring into whether a fact is proved, the sufficiency of *evidence* is to be seen in the context of standard of proof, which in civil cases is by preponderance of probability."

75. Further the same court in Debbarma (Dead) Through Legal Representative V. Prabha Ranjan Debbarma and Others, 2023 SCC, the court held that-

> "In a Suit seeking Declaration of Title and Possession with respect to a property, the Defendants cannot be dispossessed unless the Plaintiff is able to establish a better title over the property.

> This is because a person in possession of a property assumes the character of an 'owner' and has a legal right against the entire world except the rightful owner of that property. In other *words, a person in possession would be entitled to protect and* save their possession, "unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession."

> The Court also discussed Section 102 of the Evidence Act that stipulates that "if both the parties fail to adduce evidence, **the suit must fail."** According to the Court, the onus of proof in a case continuously shifts from the Plaintiff to the Defendant and vice versa, but this shifting of onus would happen in a Suit for Title and Possession only when the Plaintiff is able to create a high degree of probability in her favour by adducing appropriate evidence. The Title must be proved..."

76. In the instant case, from the analysis above and the evidence on the court record, it is clear that both the Appellant and the Respondent are in possession of the suit land. However, none of them has any better title than the other over the suit land whether equitable or legal.

77. The Appellant claimed to have obtained interest in the suit land from her late father who acquired the same from late Matayo Kimungha but as

discussed in the body of this judgment, she failed to prove her claim to the required standard.

Hence, the trial magistrate did not error in that regard as claimed. 78.

Ground No. 6 is answered in the negative. 79.

- The above notwithstanding, what is clear from the court record is 80. that the Respondent is a mere care taker who was brought on the suit land to help with domestic chores. Ordinarily, care takers do not possess legal or equitable interest in the land. - The suit land belongs to the family of late Matayo Kimungha. By 81. family, I mean his biological children and grandchildren. - However, given that the Appellant claims the Respondent is 82. attempting to evict her from the suit land, and she asserts that she was born on the property, it would serve the interests of justice considering her age of 76 years to allow her to remain on the suit land for the remainder of her life. - Therefore, based on the above reasoning, and considering that the 83. suit land measures approximately 10 acres, the Appellant shall retain possession of the house and continue using the portion of the land she has been utilizing during her lifetime. Upon her passing, the said land and house shall revert to the family of the late Matayo Kimungha. - In a nutshell, this appeal partially succeeds in the terms below-84. - (a) The trial court's Judgment and orders are set aside. - (b) It is declared that neither the Appellant nor the Respondent has equitable or legal interest in the suit land. - (c) The appellant shall stay in the house and use of the piece of land she has been using for her lifetime - (d) Each party shall bear its own costs for this court and of the court below.

I so order. **LUBEGA FAROUQ** Ag JUDGE

Judgment delivered via the email of the Advocates of the parties on $12^{th}$ day of December, 2024

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