Kyewalabye v Luwunga (Civil Appeal 77 of 2022) [2025] UGHC 195 (16 April 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA CIVIL APPEAL NO. 77 OF 2022**

**(Arising from Rakai Chief Magistrates Court Civil Suit No.005 of 2022 ) KYEWALABYE MOSES:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS LUWUNGA DISIMANSI:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **Before: HON JUSTICE LAWRENCE TWEYANZE**

## **JUDGMENT.**

# **Introduction/Background:**

- 1. This is an Appeal against the Judgment and orders of His Worship Ategeka Ignatius, Magistrate Grade One sitting at the Chief Magistrates Court of Rakai at Kyotera in Civil Land Suit No. 005 of 2021. The Respondent sued the Appellant in the Magistrate's Court for declarations that he is the rightful owner of the suit land/Kibanja, damages for trespass and conversion of property, an eviction order, a permanent injunction restraining the Defendant, his agents or servants from further trespass, general damages and costs. - 2. The disputed land is Kibanja located at Kyampagi, Kasaali Town Council Kyotera District approximately 4 acres which the Respondent stated to have received from his Grandfather Noah Balireete in 1964, the suit Kibanja was then bordered by that of late Paul Male Kayima(the Plaintiffs father)in the North ,Late Manswento in the South, his paternal Uncle Late Petero Samula in the East and Kafabogga stream in the West. It was further stated that in 2021 that the Appellant/Defendant purportedly without any colour of right trespassed on the suit Kibanja in possession of the Respondent. - 3. The Appellant in his Written Statement of Defence stated that he is not the rightful owner of the Kibanja in contention (the suit land) but that he was allowed into the suit property by the lawful owners (his paternal Aunties) in the year 2012 namely Nambooze Luyita,Nangoobe Falasca, Late Nakasize Resty,Nassimbwa Bena and Nansereko and for the last 9 years he


Page **1** of **7**

has played the caretaking role seriously without any interference from anybody, that the said owners are actually sisters to the Plaintiff/Respondent who are the real beneficiaries of the land deriving such interest from their father's Will which Will was presented to Court.

- 4. Civil Suit No.005 of 2021 against the Defendant/Appellant was decided in favour of the Respondent/ Plaintiff. The Appellant was dissatisfied with the judgment of the trial Magistrate, hence this Appeal. - 5. According to the Memorandum of Appeal, the Appellant appeals against the said decision and orders on the following grounds: - *1. That the Learned Trial Magistrate erred in law and fact when he excluded real evidence of a valid Will on a technicality that it was not translated in English thereby occasioning a miscarriage of justice.* - *2. That the Learned Trial Magistrate erred in law and fact when he relied on hearsay evidence of P. W.2 and P. W.3 who never witnessed the giveaway of the suit land thereby occasioning a miscarriage of justice.* - *3. That the Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence as to the true ownership of the disputed land/ Kibanja thereby occasioning a miscarriage of justice.* - *4. That the Learned Trial Magistrate erred in law and fact when he made orders as to excessive damages and costs without proof of establishment of the owners of the suit land thereby occasioning a miscarriage of justice.*

## **Representation and hearing.**

6. The Appellant was represented by Kawanga & Kasule Advocates. The Respondent was represented by Nnyanzi & Nnyanzi Advocates. Both Counsel filed written submissions that have been considered herein.

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

7. The duty of a first appellate Court was laid out in the case of *Fr. Narsensio Bugumisa & 3 others versus Eric Tiberaga SCCA NO. 17 of 2004) KALR236* thus:

"*The legal obligation of the 1st appellate Court to re - appraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1st Appeal, the parties are entitled to obtain from the Appeal Court its own decision on issues of fact as well as of law. Although in case of*

Page **2** of **7**

*conflicting evidence, the Appeal Court has to make the allowance for the fact that it has neither seen nor heard the witnesses''*

8. 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 the Appeal**

9. I will re-evaluate the evidence on the record as required of this Court and make independent findings on the same.

# *Ground 1*

- 10. That the Learned Trial Magistrate erred in law and fact when he excluded real evidence of a valid Will on a technicality that it was not translated in English thereby occasioning a miscarriage of justice. - 11. Counsel for the Appellant submitted that Male Paulo Kayiwa made his Will on the 29th of Sept.1996 distributing his Bibanja between her daughters, the Will was tendered in Court as "1D1" instead of "DE1" - 12. That on page 2 of the Trail Magistrate's judgement, it is clear that both parties were unrepresented. That it is not written anywhere in the record of proceedings that the Learned Trial Magistrate instructed the defence to translate the Will in order for it to be tendered in Court as an exhibit, rather he kept quiet well aware that if the evidence of the Will is not admitted, it would totally jeopardize the defence's case. - 13. Counsel submitted that the Learned Trial Magistrate states on page 8 of his judgement citing *Article 6(1) of the 1995* Constitution of the Republic of Uganda, that makes the English language the official language, he also relied on *Section 88 of the CPA Cap 71* to exclude the evidence of the Will because it was not translated in English However Clause 2 of Article 6 provides that subject to clause 1..*,any other language may be used as a medium of instruction in schools …or for legislature, administrative or judicial purposes as may be prescribed by law.*


- 14. That Article 6(1) is not mandatory but directive and clause (2) is optional as to which language the Judiciary may choose to adopt. Article 126(1) provides that judicial power is derived from people and shall be construed in the name of the people. Article 126. (2)(e) clearly provides that in adjudicating cases of both criminal and civil nature, the Courts shall, subject to the law, apply the principles of *…substantive justice which shall be administered without undue regard to technicalities.* - 15. Appellant's Counsel submitted that it was Court to find a way how this piece of evidence could be admitted at the trial bearing in mind that the parties were unrepresented and they had only Court to look at for guidance on the procedure in Court. That this case belonged to the people who wished to enforce their rights to own property, the Trial Magistrate was doing his job working for the people, it was wrong for him to apply the *law of admission of real evidence* in a strict sense without looking at the side of justice and fairness of his actions well knowing that he was dealing with old people over 75years who could hardly recall anything yet he greatly relied on their testimonies to give his judgment and he acted the *judge*, the *jury* and the *executione*r, he chose which questions to ask and which to ignore, who to ask ,what and who not to ask and which evidence to rely on at the end. - 16. The Respondent submitted that that the trial Court did not commit an error or irregularity by not admitting the alleged Will and that even if it was an error, it did not cause any miscarriage of justice, because even if it had been admitted Court would still have found that the Respondent was the owner of the suit Kibanja. - 17. The Appellant retaliated his earlier submissions in rejoinder.

## **Decision of Court.**

- 18. I have carefully studied the Judgment of the Trial Court, the record of proceedings, the Memorandum of Appeal and submissions of both Counsel in coming up with this decision. - 19. The contention of the Appellant is that, the Learned Trial Magistrate erred in law and fact when he excluded real evidence of a valid Will on a


Page **4** of **7**

technicality that it was not translated in English thereby occasioning a miscarriage of justice.

#### 20. The Trial Magistrate at pages 8-9 of the Judgment stated as follows: -

*"A close look at the Will it indicates that it was written in Luganda and a translated copy of the Will was not tendered in as an exhibit. Article 6 of the 1995 Constitution of the Republic of Uganda makes English the official language of Uganda. Section 88 of the Civil Procedure Act Cap 71 provides that: a) The language of all Courts shall be English.*

*b) Evidence in all Courts shall be recorded in English.*

*See; Nkalubo vs Kibirige [1973] EA 102, De Souza vs Senith Printing Works, Kenya C. C 1949 of 1959 and Elisa Kakwateki vs The Editor, Oromia Newspaper & Anor HCCS No. 461/2004*

*I am guided by the above provisions of the law and the authorities listed not to rely on the contents of the Will written in Luganda as evidence in this case. The Will was also not tendered in as an exhibit but as merely an identification document. In its current state it cannot be used as proof of ownership of land by the Defendant's Auntie, D. W.2.*

*In the circumstances, I find that ownership has been proved by the Plaintiff on the balance of probabilities."*

- 21. I have carefully perused the judgment and the record of Appeal on the issue of admissibility of a Will that was not translated in English language and I have not found any error in law when the Trial Magistrate rejected to admit the purported Will. Article 6 of the Constitution and Section 88 of the Civil Procedure Act are clear. The language of Court is English and the documents submitted as Annextures to pleadings must have an English translation not in any other language. A document which is not translated in the language of the Court which is English could not be admitted in evidence. - 22. I do not find merit in the Appellant's arguments and moreover, the Appellant claims only to be a caretaker of the suit land/Kibanja with no interest in the same. Ground 1 accordingly fails. - 23. In all grounds 1, 2, 3, and 4, the Trial Magistrate is criticized for the findings of fact he made leading to his conclusion as to the ownership of the suit land/Kibanja. These grounds will be jointly analyzed. It is argued that he accorded too much weight to the Respondent's oral evidence, while at the same time he unjustifiably disregarded the Appellant's evidence of a Will that was not in English language.

Page **5** of **7**

- 24. The determination of the dispute between the parties rested on establishing facts regarding the nature and character of the rights vested in the land/Kabana in dispute, the capacities of the parties to this suit and the legal and equitable implications of the Appellant's occupations of the suit land, which I proceed to address. - 25. The nature and character of the rights vested in the land in dispute relate to its ownership and trespass. Ownership is the most comprehensive right that one can have in any property. The concept of ownership of land is an aggregation of a number of rights, including: the right to possession, the right to control, the right to its use and quiet enjoyment, the power to allow others a right to use like the licenses, the right to privacy and to exclude others, the right to disposition or to transfer the land to someone else by selling, gifting or inheritance, and the right to use the land as collateral through a mortgage. - 26. It is not in dispute that the Appellant does not claim ownership of the suit land as by his pleadings and submissions herein, he claims that the land belongs to other named people who allowed him to occupy it as a caretaker. This indicates that he stands in a position of a licensee. The main question is as to whether he has any rights arising from the owner. - 27. The main rule is that ownership vests the owner with the most complete powers over land, In the instant case, it was the testimony of P. W.1, Luwunga Dismas that he acquired the land / Kibanja from his late father Noah Balilete and that he took over possession and started cultivating thereon. This was corroborated by the evidence of PW2, PW3 and PW4. On other hand, the Appellant/Defendant did not claim ownership but stated that the land is for other people, as already noted, since the said Will could not be relied on and the Respondent had proved possession prior to the Appellant's entry. - 28. In my view, the circumstances make it unlikely that the land belonged to any other person apart from the Respondent. For all intents and purposes, the Appellant having admitted being in the capacity of a caretaker (licencee) cannot claim interest in the suit land and therefore could not fault the Trial Magistrate's findings.

Page **6** of **7**

- 29. The Appellant also faults the Trial Magistrate that he erred in law and fact when he made orders as to excessive damages and costs without proof of establishment of the ownership of the suit land/Kibanja thereby occasioning a miscarriage of justice. - 30. Having found that the Trial Magistrate properly determined the dispute as regards to ownership of the suit land/Kibanja, I will thus address the ground of general damages. - 31. Damages are, in their fundamental character, compensatory, not punishment. In regards to trespass, the primary function of damages is to place the Plaintiff in as good a position, so far as money can do it, as if the matter complained of had not occurred. General damages, according to Lord Macnaghten in the oft-cited case of *Stroms Vs. Hutchinson,* are such as the law will presume to be the direct natural or probable consequence of the act complained of. - 32. Being discretional, the Trial Magistrate found that it is clear that the Plaintiff suffered inconveniences as a result of the actions of the Appellant/ Defendant and he awarded UGX 500,000/- as general damages. I find no reason to alter the Trial Magistrate's finding in regards general damages. The 4th ground also fails. - 33. From the re-evaluation of the evidence above, I find that the Respondent was the owner of the suit land/Kibanja and the Appellant has no interest therein. This Appeal fails and is hereby dismissed with costs to the Respondent.

It is so ordered

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

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