Kutambaki Augustine v Byaruhanga Paul (Civil Appeal No. 65 of 2012) [2019] UGCA 2125 (25 September 2019)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

lCoram: Egonda-Ntende, Barishaki Cheborion, Tuhaise, JJAI

Civil Appeal No.65 ol20l2

(Arisingfron High Court Civil Appeal No. 74 of 2010 on appeal from FPT-2 1- CV-CS-030/ 2004 ar Kyeniojo)

## BETWEEN

Kutambaki Augustine: Appellant

## AND

Byaruhanga Paul Respondent

(On appeal from the Judgntent of the High Court (Chibita, J.) delivered on the 25't' August 2009 at Fort Portal)

# JUDGMENT OF FREDRICK EGONDA-NTENDE JA

## oduction

- This is a second appeal from the decision of the High Court of Uganda at Fort Portal. 'l'he appellant was the del'endant in the original suit in the magistrates' court at Kyenio.lo. Thc respondent was the plaintifl. The respondent had filed this action against his uncle the def'endant in trespass. He contended that the def'endant had taken over his land, approximately 5 acres which he had inherited from his late tather. rvho passed away in 1978. The appellant on the other hand contendcd that he had bought the suit land.jointly with his brother, the father of the respondent. And that they had divided it up. It was the respondent now who was laying claim to his portion of the land. - In the court of tirst instance judgment was delivered in tavour of the appellant. The respondent appealed to the High Court. The High Court reversed the judgment ofthe magistrates' court and dccreed the land to the respondent. The appellant dicd and is now represented b1'his legal representative James Agaba.

t3l The appellant appealed against that decision to this court setting fbrth 5 grounds of appeal which I set out below.

> '( I ) The learned.iudge erred in law and fact when he l'ailed to properly re-evaluate the evidence on record of the lower courl leading [o an erroneous decision.

> (2) The learned.iudge ofthe High Court in his re-evaluation of the evidence of the L,ower Court as to the difference between a "road" and a "path" and the contents and intent of the late Alif'unis Nsisi as conlained in his will daled 4rh April 1978.

> (3) 'Ihe leamed .iudge of the High Court erred in law rvhen he disregarded the lindings ofthe Lower Court when at lhe scenc in quo while he had neither personally visitcd nor seen or appreciated the demeanour ofthe rvitness.

> (4) the Learned Judge ofthe High Court made an enoneous decision when he reversed the decision of the High Court on no legal basis.

> (5) The Learned Judge ofthe High Court erred in law when he fhiled to ref'er the matter back to the l,ower Court for hearing de novo since the evidence at the /oclr.l in qrc did not lbrm part ofthe record ofproceedings.'

t4l The respondent opposes the appeal and supports thejudgment ofthe High Court on appeal.

#### Submissions of Counsel

- t5l The appellant is represented by Mr Richard Rwabogo. The respondent is represented by Mr James Ahabwe. Both counsel filed written submissions. - t6l The appellant abandoned -qrounds I to 4 and remained with onl), ground 5 as the sole ground ofappeal in this matter. It was contended tirr the appellant that the learned trial judge made an error ol'larv in failing 1o order a re-trial once it was established on appeal that the trial court had relied on evidencc obtained during the visit to the locus in quo while no note was available olsuch evidence in the record of proceedings o1'the trial court.

- It rvas submitted fbr the appellant that the leamed trialjudge noted that the lower court had rclied heavily' on the proceedings at the locus in qao when such proceedings rvere actuall,v- not captured on the record ol'proceedings. The failure olthe trial magistrate to capture the entire record olproceedings at rhe locus in quo and f'ailure to draw a sketch plan meant that the learned trialjudge on appeal could not arrive- at a corrcct decision occasioning a miscarriage of justice. Reference was made to Yowasi Kabisuruka v Samuel Byarufu-l20l0 UGeA 7: Yeseri Waibi v H,disa Lusi Bvandala 1982 <sup>I</sup> IICt] 28 and Mukasa v Usanda <sup>I</sup>19641 l: A 698 in support olthe case I'or the appellant, ,rf - It was submitted for the respondent that the sole ground ofappeal is not tenable and the ordcr tbr a re-trial is not called tirr. l'here is sufficient evidence on record lbr both parties that enabled the leamed.ludge on appeal to arrive at the decision he did. It is conceded that the trial rnagistrate made a mistake in failing to draw a sketch map ot'the suit land and l'ailing to record his observation at the /ocLs in quo lor which he was faulted by the leamed trialjudge. However, the leamed judge on appeal did not base his decision on the proceedings at the locus in quo. -l-he learned trial judge on appeal relied on othcr evidence on record to come to the conclusion he came to that the land rightfully belonged to the respondent. "i - It rvas lurther subrnitted tbr the respondent that in the instant case there are no compelling circumstances fbr ordering a re-trial in light of the fact the appellant is dead and his legal representative \\as not a r.r itness during the trial and the other witnesses are ofadvanced age. They are either too old or dead. It is argued that a re-trial would cause injustice. Relerence was made to Vicent Ntambi v t]qanda Coun ol' Appeal Criminal Aopeal No. 78 of 2012 (unrcponed) in support of this submission. - Lastly it was argued fbr the respondents that the leamed trial judge was not under a duty to award a remedy that had not been prayed fbr by either party. '['he appellant had not sought in the court below tbr an order fbr a retrial as he had not filed a cross appeal. The respondent prayed that this appeal be dismissed with costs. t 'ol

## lysis

'Ihis is a second appeal. What is permitled to be appealed against are questions crf law pursuant to sections 74 and 72 ol'the Civil Procedure Act. I am satist'ied that the solc ground ofappeal involves a question of law. Secondly on second

Page 3 of 9

appeals this court is not required to re-evaluate the evidence of the trial court unless the first appellate court failed to do so.

[12] I will start by re stating the relevant facts to the above appeal. The learned trial magistrate who heard and determined this case at first instance visited the *locus* in quo. He heard the testimony of one witness, PW8 (really PW6), which he recorded. He did not produce a sketch plan of the land in dispute or the disputed boundary. He did not record any observations of what he saw at the *locus in quo* or whether he heard any other person including previous witnesses that had testified. In his judgment he stated in part,

> 'Hence court having visited the locus in *quo* and seen the land in dispute and the will having mentioned not to cross the road and paths and not Mpunda as denied by PW2 and counsel for the plaintiff yet court was able to identify a path that is between the plaintiff and the disputed land and also as shown by DW6. It is clear that the road or paths talked about in the will could not have been the one to Mpunda but that separating the plaintiff and the disputed land since even Agaba's house son to the defendant and various plantations like avocadoes claimed to have been planted by the defendant all fall in the disputed land and not the land of the plaintiff. And with the same I will find the plaintiff to have failed to prove that the land in dispute belongs to him.'

[13] The first appellate court, quite rightly in my view, criticised the learned trial magistrate for taking into account observations and evidence adduced at the locus in quo which is not available on the record of the trial. The learned appellate judge stated,

> 'It was conceded by both Counsel that the locus was visited and that the trial magistrate relied heavily on the proceedings at the locus in his judgment. Indeed the last witness testified from the locus. The Trial Magistrate should have indeed taken greater care in capturing the record at the locus and following the procedure.'

[14] The learned appellate judge then evaluated the evidence on record and concluded that the learned trial magistrate had made several errors that led him to reach the wrong conclusion. Firstly, that the defence witnesses the trial magistrate believed were not credible given that they denied a crucial bit of the evidence that related to the sale of the disputed land by the appellant to Bamanya which the appellant was pressurised to abandon by the clan. The appellant refunded the purchase price to the buyer. The inference the judge drew from this was that those del'ence witnesses \vere not telling the truth as the appellant could only be forced by the clan to cancel the sale if the land did not belong to him. Secondly that the trial rnagistrate introduced a path rvithout evidentiary basis as the boundary between the appellant and the del'endant yet the wilt had talked of a road and the witnesses had identilled the road as the road to Mpunda rvhich scparated the land ofthe appellant and the disputed land.

- ] The leamed appellate judge allowed all the grounds of appeal and concluded that the land belonged to the respondent. - The leamed appellate judge is faulted lbr deciding the case on basis of reevaluating the evidence on record which was incomplete as it did not have part of the proceedings at the locus in quo. lt is contended that he should have ordered a retrial. For the respondent it is contended that a re{rial was neither prayed fbr by the respondent nor the appellant in the first appellate court. The leamed.iudge should therefbrc not be taulted fbr not ordering a re-trial. - Neither party in the court below prayed for a rc-trial on account of the trial magistrate having f-ailed to conduct thc locus in quo in accordance with the accepted procedure.'Ihe appellant (respondent in the High Court) supported the decision of the coun of first instance. The respondent (appellant in the High Court) prayed tirr setting aside the.ludgment of the trial court and substituting it with a declaration that the disputed land belonged to the respondent on the evidence on record. 'l'he appellant is therefore raising this prayer ofa re-trial fbr the flrst time on a second appeal. ,,{, - The procedure trial courts are to lbllorv on conducting proceedings at locus in 4ro. as provided lbr in case law, ( See J. W. Ononee v Okallang [ 19861 HCB 63 & Badiru Kabalesa v SeDiriano Musangu, (Hieh Court Civil Appeal No. 7 of 1987). I I 9921 KALR I l0), has now been codified in Practice l)irection No. I of 2007 and is as lbllorvs:

# '3. Visit to the Locus in Quo

During the hearing of land disputes the court should take interest in visiting the locus in zTrro and while there.

(a) Ensure that all the parties, their witnesses and advocates (if any) are present.

(b) Allow the parties and lheir witnesses to adduce evidence at the locus in qrro.

(c) Allow cross examination by either party or his or counsel.

(d) Record all the proceedings at the locus in rTrrr;

(e) Record any observation. view. opinion or conclusion of Ihe cou(. including drarving a sketch plan. ifnecessary.'

[9] Discussing the purpose ol'a visit to the /ocr1s fu quo. Ongom. Ag. J..(as he then was). in Badiru Kabelega v Seoiriano Mugangu (supra), stated.

> ' ... it is rvell established thal the purpose olvisiting the locus in r7lr.r is fbr each party to indicate what he is claiming. Each party musl lestify on oalh and be cross examined by the opposite party. Similarl,v". witnesscs who have alreadv testified in court arc required al lhe locus in rTao to claritl, what they were stating in court to indicate tbatures or boundary marks. if an1,. to the court. An\_v. observation made or noted by the trial magistrate at the locus in rTro must be noted and recorded and must lbnn part ofthe record. Unless it is requested or intimated in advance. the court should not allow liesh rvitnesses to be called at the locus in r7rrr. If'the Irial courl l'ails to lollorv this accepted procedure at the locus in rTrro and bases his judgment largely on the trial at the locus in quo. thal omission is lhtal to the wholc trial.'

- l20l Where the trial court relies in its judgmcnt, signiticantly or largcly on proceedings al the locus in quo which has not been conducted lbllowing the above procedure, or where no record of it is properly made or available that would vitiate the proceedings leading to a re-trial according to rnost High Court decisions that lhave read. Scc J. W. Onon e v Okallan 1986 IICB 63 l]adiru Kabale av Se iriano Mu iI II <sup>I</sup>Ii Court Civil A al No. 7 of' 1987). Il992lKALR I l0) - [21] I do think that this fbrmulation is somewhat too rvide. 'l'he more precise lbrmulation should be. in my vieu', that rvhere the trial court relies in its judgrnent, signiticantly or largely on the proceedings at the locus in qao, which have not been conducted in the accordance with the procedure set out above, would be fatal to the judgment and not necessarily to the u,hole trial. The result of this finding may otien be to order a re-trial if the trial in the court below is not salvageable. The appellate court should be able to determine rvhether on the evidence on record it is possible to arrive at a decision that would conclude the case rvithout causing a miscarriage ol'justice. Where it so finds it may determine the case afier a re-evaluation of the evidence and the law. 11. however. this is not possible, the appellate court would then have to order a re-trial. - Re-trials should generally be ordercd only where it is in the interests ol'justice to do so, or. put ditl'erently. where a nriscarriage ofjustice would occur. if no re-trial is ordcred. Courts should as much as possible help to bring cases to an end rather than prolong litigation where it is possible to do so. I t'. on a review ol'the el idence on record, it is possible to tbirly determine a matter it would be in the intcrests ot'justice to do so and bring to an end such litigation. This would avoid the pitfalls caused by delay in concluding litigation, which include possible death ofparries. unavailability of witnesses, deterioration of merrories of some rvitnesses and the escalating costs associated rvith prolonged litigation. 't, - In Yowasi Kabieuruka v Sarnuel Byarulu (supra) this court aflirmed a decision of the High Court on appeal that ordered a re-trial in a matter where the trial court had not visited the locus in quo. The Court of Appeal held that failure to visit the locus in quo was not an illegality. However, a retrial was ordered where the interests ofjustice requircd the court to visit the locus in qlro in order to be in a position to ad.iudicate the dispute between the parties. rzir - In the instant case the leamed judge on appeal noted that the leamed trial magistratc had not lbllorved the accepted procedure fbr visiting a locus in quo. However, he did not order a re-trial. Ncither party had prayed for a rc-trial. The leamed judge on appeal re-evaluatcd the evidence on record lbr each side and arrived at a conclusion that the land in question belonged to the respondent. Did the approach of the leamed.judge on appeal occasion a miscarriage ofjustice? trj, - I think not in the circumstances of this case. The appellant in his written statement of defence had stated. rrrl

'l and my brother shared out this land and demarcated it in the traditional way. We then built our houses and each one of us started to work fiom his part of' this land-Unfortunately. a f'ew years later. my brother ALIFUNSI NSISI died. His land remained under the ownership of his wife and children. Later atier the death oftheir tather. these children were taken by their rnother to her home side where they stayed lor years. Mysell- I remained here making sure thal their part of the land was not tampered rvith while I was working fiom my part ofthe land. I did not go beyond the boundaries rvhich are even clearly indicated in the will of their t'ather (b)' brother ALIFLINSI NSllSl).'

Page 7 of 9

### [26] The will of the late Alifunsi Nsiisi was tendered in evidence and it stated in part,

Therefore Augustine should not cross the road from down to go up to disturb my children. He is bordering Kyamanywa and down there is a Gasiya tree, bordering with Ndora.'

- [27] Augustine is the Appellant. The question therefore is what was the road the appellant was not supposed to cross? PW2 stated that it was the road to Mpunda. While denying this the appellant admitted in cross examination to have encroached on the plaintiff's land in 1990. He also admitted that he had sold the disputed land which he had claimed was his land but complaints were raised and he had to refund the money to the buyer on the intervention of his clan members. This was in direct contradiction to his own witnesses that had claimed that he had not sold land to Bamanya or been forced to refund the money by the clan. This largely discredited DW2, DW5 and DW8 (who ought to be DW6) since they denied knowledge of any sale of the disputed land. - [28] DW3 testified that the appellant had in 1990 encroached on the plaintiff's land. And that the appellant had wanted to sell the land to Bamanya. Much as he maintained that the land in dispute belonged to the appellant this was really inconsistent with the evidence that the appellant was compelled by the clan to rescind the sale of the land to Bamanya because the disputed land did not belong to him. The disputed land belonged to the respondent. - [29] The testimony of PW3 largely corroborated the testimony of PW2. PW3 was a neighbour to the disputed land; brother to the appellant and uncle to the respondent. This testimony was not discredited on cross examination. He firmly stated that the disputed land belonged to the respondent and its boundaries had been stated in Alifunsi Nsiisi's will. He gave the background to why the PW2 and her children left their home to go to their maternal uncle for some time. He detailed the attempts of the appellant to take over the disputed land, including the aborted sale to Bamanya. - [30] The learned judge on appeal determined, on the evidence, that the boundary between the appellant and the respondent was the road to Mpunda. The appellant in his written statement of defence had stated the boundaries of the land belonging to the plaintiff were set out in his father's will. The will had stated that the appellant should not cross the road. On the evidence of PW2 this road mentioned in the will was the road to Mpunda. The appellant's land therefore stopped on the road to Mpunda.

- rl The appellant abandoned all grounds of appeal that had related to the leamed judge on appeal's evaluation ofthc evidence. I take it that the appellant does not contest the lhctual findings made by the leamed judge on appeal or that the leamed judge made an error in law in re-evaluating the evidence on record other than what is contained in the only ground of appeal argued betbre us. The appellant's only complaint is that the leamed judge did not order a re-trial in light of his finding that the proceedings at the locus in quo did not lbllow the accepted procedure tbr conducting visits to the locus in quo. The leamed judge on appeal vacated thejudgment ol'the trial court on both this account as well as on account of the lact that the leamcd rnagistrate had rvrongly accepted the appellant's version of the case which had been seriously discredited and was not worthy ol beliefl - O[ course, this may have been the ideal case lbr a visit to the locus in quo. Unfortunately, the proceedings ol'the visit to the locus in quo were not fully recorded by the trial court. However. it is possible on a review of the evidence available on record that was properly received to determine ownership of the disputed land. I am satisfied that the leamed judge on appeal reached the correct conclusion that the disputed land bekrnged to the respondent, without relying on the visit to lhe locus in quo. And no miscarriage of justice was thereby occasioned. I would decline to order a re-trial.

### rsron

- I would dismiss this appeal with costs here and below. As Barishaki Cheborion and Tuhaise, JJA, agree this appeal is dismissed with costs. - <-K C \* ed. dated and delivered at Kampala this P6s, o1 ->:^d+- 2}lg

v

Justice of Appeal

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL FOR UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Barishaki Cheborion, Percy Night Tuhaise, JJA]

## Civil Appeal No. 65 of 2012

(Arising from High Court Civil Appeal No. 74 of 2010 on appeal from FPT-21-CV-CS-030/2004 at Kyenjojo)

Kutambaki Augustine....................................

### Versus

<table>

Byaruhanga Paul....................................

(On appeal from the Judgment of the High Court (Chibita, J.) delivered on the 25<sup>th</sup> August 2009 at Fort Portal)

# Judgment of Hon. Lady Justice Percy Night Tuhaise, JA

I have had the benefit of reading in draft the Judgment of my brother Hon. Mr. Justice Fredrick Egonda-Ntende, JA.

I agree with his analysis, reasoning, and conclusion that this application has no merit and should be dismissed with costs here and in the court below.

**Dated** at Kampala this $\sqrt{25}$ day of $\sqrt{2019}$ .

Rubank

**Percy Night Tuhaise** Justice of Appeal.

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 65 OF 2012

KUTAMBAKI AUGUSTINE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

BYARUHANGA PAUL:::::::::::::::::::::::::::::::::::: 10

(An appeal from the decision of the High Court of Uganda at Fort Portal delivered on 25<sup>th</sup> August, 2009 in Civil Appeal No. 74 of 2010 by Chibita, J)

**CORAM:** HON. MR. JUSTICE FREDRICK EGONDA - NTENDE, JA

#### HON. MR. JUSTICE CHEBORION BARISHAKI, JA

HON. LADY JUSTICE PERCY NIGHT TUHAISE, JA

### JUDGMENT OF CHEBORION BARISHAKI, JA

I have had the benefit of reading in draft the judgment of my brother Fredrick Egonda – Ntende, JA and I agree that the learned appellate Judge reached the correct conclusion that the disputed land belonged to the respondent.

This appeal is therefore dismissed with costs. 20

$\mathsf{S}$

Signed, dated and delivered at Kampala this $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2$

**Cheborion Barishaki**

**JUSTICE OF APPEAL**