Kyogonza v Nyakato (Civil Appeal 31 of 2023) [2024] UGHC 843 (29 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 031 OF 2023**

## *(Arising From Civil Suit No. 02 of 2021 Before the Chief Magistrate's Court of Kamwenge at Kicheche)*

**KYOGONZA TORISI ::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**NYAKATO BETTY :::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and orders of His Worship Ahimbisibwe Kagumire Innocent, the Magistrate Grade 1 of the Chief Magistrate's Court of Kamwenge at Kicheche, delivered on the 3rd May 2023 wherein he, inter alia, decreed that the suit land belongs to the respondent.

#### **Background**

The appellant filed Civil Suit No. 02 of 2021 before the Chief Magistrate's Court of Kamwenge at Kicheche against the respondent seeking a declaration that she is the owner of the suit land situate at Kitigo Cell, Bwera Parish, Kicheche Sub-county in Kitagwenda District, a declaration that the respondent is a trespasser, an order for a permanent injunction against the respondent, general damages and costs of the suit.

The appellant's claim is that at all material times, she was the owner of the suit land having bought the same together with her husband, Njogoki Patrick, from Maryante Angelica on the 16th of July 2002. After purchasing the suit land, the appellant took possession of the same and started using it to grow crops and built a house on it for storage.

However, in or around 2004, her husband, Nkongoki Patrick, who had contracted another marriage with the respondent requested the appellant to allow him to use the storage house on the suit land as a temporary shelter for the respondent until he built for the respondent her own permanent home.

When the appellant's husband failed to build the respondent a house, the respondent left the suit property around 2006 in protest. However, in the year 2021, the respondent with the help of the RDC forcibly re-entered the suit land without the appellant's consent or permission.

In her written statement of defence, the respondent denied the claims by the respondent and stated that she is the owner of the suit land having acquired it as a share from her matrimonial property she jointly owned with her husband, Nkongoki Patrick.

In his judgement, the learned trial magistrate held that the suit land belongs to the respondent and awarded costs against the appellant.

Being dissatisfied with the decision of the learned trial magistrate, the appellant appealed to this court on the following grounds:

- 1. The learned trial Magistrate erred in law when he held that the suit land, which the appellant had been in possession for over 20 years, did not belong to her. - 2. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record thus coming to the wrong conclusion that the appellant did not own the suit land. - 3. The trial magistrate erred in law and fact when he failed to give reasons for his conclusions that the respondent was the owner of the suit land.

- 4. The learned trial magistrate erred in law and fact when he decided in favour of the respondent who did not produce any substantive evidence of ownership of the suit land. - 5. The learned trial magistrate erred in law when he concluded that the respondent could lawfully acquire the suit land from her husband who did not have a title to the same. - 6. The learned trial magistrate erred in law and fact when he considered valid the respondent's alleged document conferring her ownership of the suit land by her husband who himself had no ownership of the same. - 7. The learned trial magistrate erred in law when he concluded that he believed the respondent's version of events to be true without giving any reasons for such a finding.

## **Representation and Hearing**

Mr. Bantula Wycliffe represented the appellant whereas Ms. Wanjala Mercy represented the respondent. The hearing proceeded by way of written submissions. Both counsel filed written submissions which I have considered in this judgement.

# **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

*"It is a well-settled principle that on a first 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 a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

The memorandum of appeal sets out six grounds, all of which are repetitive, and this offends Order 43 Rule 2 of the Civil Procedure Rules. Each of the grounds as set out in the memorandum of appeal essentially challenges the trial court's finding that the suit land belongs to the respondent, pointing to the trial court's evaluation of evidence or lack thereof. Therefore, for convenience, I shall address all the grounds simultaneously.

## **Submissions by Counsel for the Appellant**

Counsel for the appellant argued that there is cogent evidence on record to show that the suit land belongs to the appellant. Counsel argued that at the trial, the appellant had led evidence to the effect that she purchased

the suit land from one Maryante Angelica for consideration of UGX. 20,000/= and 5 goats in the year 2002, and there was a sales agreement proving the purchase of the suit land.

Counsel argued that also the evidence on record showed that in 2004 when the appellant's husband came with the respondent as his other wife, they sought consent of the appellant to occupy the suit land temporarily until their husband would build a house for the respondent.

Counsel argued that when the respondent abandoned her marriage and the suit land, then the suit land reverted to the appellant who used it until 2021 when the respondent, with the help of the RDC, forcibly took possession of the same.

Counsel for the appellant argued that whereas the respondent told the court that he sold his plots of land in Mbarara to purchase the suit land by paying school fees for the appellant's son, there was no evidence led in court to prove that claim. Counsel also argued that whereas the trial court on page 4 of the judgement stated that it held a *locus in quo* visit, there was no record of the *locus in quo* visit.

Counsel for the appellant also argued that there was a contradiction of the respondent's evidence when she shifted from claiming ownership based on matrimonial property to that of purchase.

Counsel argued that the testimony of the appellant who testified as PW1 was corroborated by both PW2 and PW3. Counsel argued that PW3 who was the first owner of the suit land testified to have sold the same to the appellant and her husband, and therefore the contradictions in the testimonies of the appellant's witness were minor and could not affect the strength of her evidence, as a whole.

Counsel for the appellant also argued that there is evidence on record to show that the appellant's husband requested the appellant to use the suit land temporarily to house the respondent and the respondent did not challenge this evidence. Counsel cited the case of *Habre International Co.*

*Ltd v. Kasam & Others [1991] EA 115* to argue that omission or neglect to challenge the evidence in chief on a material or essential point by crossexamination would lead to the inference that the evidence is accepted subject to its being assailed as inherently incredible or possibly untrue.

Counsel for the appellant also argued that the respondent contradicted herself when, in her written statement of defence she stated that she had acquired the suit land as a share of her matrimonial property and later in her testimony she testified to have bought the suit land from her husband and the appellant by paying UGX. 1,200,000/= directly to them as school fees for their son.

Counsel for the appellant argued that such inconsistencies which hinge on the mode of acquisition, were central to the respondent's claim and that grave inconsistencies or contradictions unless satisfactorily explained will result in the evidence being rejected. Counsel referred this court to the case of *Alfred Tajar v. Uganda Crim. Appeal No. 167 of 1969*. Counsel argued that it was erroneous for the trial court to hold that the testimony of the respondent was consistent while the appellant's contradictions were grave.

Counsel for the appellant also submitted that the learned trial magistrate did not give a clear reason for holding that the suit land belongs to the respondent, yet the defendant had no led evidence to prove that she purchased the suit land. Counsel argued that it was the duty of the trial magistrate to give reasons and grounds for his findings which he did not do hence occasioned a miscarriage of justice to the appellant.

## **Submissions by Counsel for the Respondent**

Counsel for the respondent argued that according to the appellant pleadings, under paragraph 5(b) – 5(h) of her plaint, the suit land was purchased by her husband Nkongoki Patrick in 2002 and that she used the suit land up to 2004 when her husband gave the suit land to the respondent. Counsel argued that there was no documentary evidence showing that Nkongoki Patrick had given the suit land to the appellant.

Counsel argued that going by her pleadings, the appellant had only utilized the suit land for only 2 years, and not 20 years as alleged. Counsel for the respondent argued that there was no evidence on record to suggest that the respondent lost that possession or that the appellant retook possession of the same since 2006.

Counsel for the respondent also argued that it is trite that parties are bound by their pleadings. Counsel referred this court to the case of *Interfreight Forwarders (U) Ltd v. East Africa Development Bank SCCA No. 33 of 1993*.

Counsel for the respondent submitted that the evidence of the appellant was contradicting because although in her plaint she stated that she was given the suit land by her husband, in her testimony she told the court that she had purchased the suit land together with her husband. Even then, PW2, the husband to the appellant, told the court that the suit land was for the appellant because she bought it in the year 2002. Counsel for the respondent submitted that the purchase agreement showed that the appellant had signed as a wife to the purchaser and not as a purchaser herself.

Counsel for the respondent argued that, on the contrary, there was cogent evidence on record to show that the respondent took possession of the suit land with permission from the owner. Counsel argued that the appellant had the duty to prove to the court, on the balance of probability, that the suit land belonged to her.

Counsel for the respondent argued that Dexh 1, an agreement dated 19/11/2019, giving the suit land to the respondent and her children, was not challenged in court and there was no way the court could have ordered the respondent to vacate the suit land, yet the appellant had failed to prove her case on the balance of probability.

# **Court's Analysis of the Grounds of Appeal.**

In her plaint, the appellant states that she is the owner of the suit land having been given the same by her husband, Nkongoki Patrick, who bought it from Maryante Angelica in the year 2002. That she took immediate possession of the suit land immediately after the purchase but later in 2004, her husband requested her to allow the respondent, a co-wife, to occupy one of her storage houses in the suit land, temporarily, until he could build her own home. The appellant attached a sales agreement to the plaint, which was later admitted as Pexh 1.

In her testimony, the appellant testified that she bought the suit land together with her husband from one Maryante Angelica and that she paid UGX. 20,000/= for the suit land plus 5 goats that had been given to her by her father.

The husband of the parties herein, Nkongoki Patrick, testified in court as PW2. He told the court that when he learnt that Maryante Ngerika was selling the suit land, he did not have money and approached his wife, the

appellant, who insisted that they should buy the suit land. PW2 told the court that the suit land belonged to the appellant because she bought it using her own money in addition to 5 goats that had been given to her by her father.

Maryante Angelica, the original owner of the suit land, who testified as PW3, told the court that she sold the suit land to Nkongoki Patrick and the appellant as husband and wife, respectively. A sales agreement dated 16/07/2002 was led in evidence as Pexh 1 while a letter from PW2 requesting the appellant to allow him to temporarily settle the respondent on the suit land was admitted in evidence as Pexh 2. A letter from the Resident District Commissioner (RDC) dated 17th February 2021 authorizing the respondent to sell the suit land was admitted in evidence as Pexh 3.

On the other hand, the respondent in her written statement of defence stated that she is the owner of the suit land having received it as a share from her matrimonial property. However, in her testimony, as DW1, she told the court that she bought the suit land from her husband and the appellant at UGX. 1,200,000/= in or around 2004 when the appellant told her that she needed to pay school fees for her son.

It was the respondent's testimony that she bought the suit land from both the appellant and their husband, but no agreement was executed to that effect. That after the purchase of the suit land, her husband proceeded to build a house on it for her. An agreement dated 19th November 2019 stating that the Nkongoki Patrick has given the suit land to the children of the respondent was admitted in evidence as Dexh 1.

Decision of Hon. Justice Vincent Emmy Mugabo Page **9** of **17** I have addressed my mind to the record of the trial court and its judgement as well as the submissions of counsel and authorities cited and the law. It is trite law that in civil matters, parties are bound by their pleadings which have the potential to form the record of court, and no party shall be allowed to depart from its own pleadings except by way of amendment.

Order 6 Rule 7 of the Civil Procedure Rules provides thus:

*"No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."*

In the case of *Interfreight Forwarders (U) Ltd v. East Africa Development Bank (supra),* the Supreme Court held that:

> *The system of pleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. See Bullen & Leake and Jacob's Precedents of Pleading, 12th Edition, page 3. Thus, issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent*

## *with what he alleged in his pleadings except by way of amendment of the pleadings."*

From the foregoing authority, it is evident that pleadings must, with clarity and precision, set forth the material facts in controversy between the parties upon which they can prepare their respective cases and upon which the court is called to adjudicate. It is upon these pleadings that issues are framed, and evidence is adduced to support a party's case as covered and framed in issues.

In holding that the suit land belongs to the respondent, the trial magistrate held, inter alia:

> *"I have noted inconsistencies in the testimonies of PW1 and PW2. Firstly, whereas PW1 states in court that she jointly acquired the suit property with the husband from Muryante Anjelia, PW2 states that PW1 solely purchased the suit property. Secondly, while at the locus in quo, in her clarification, PW1 stated that she bought the suit property solely which is in total contradiction to her testimony in court, she won pleadings and contents of the purchase agreement…"*

Upon examination of the appellant's pleadings, annexures thereto, and the evidence on record, I find that the case or the claim of the appellant, as pleaded, is not materially inconsistent with what she set up at the trial or the one on which she led evidence. The centrality of her claim hinges on Pexh 1, a sales agreement of the suit land, which was annexed to the plaint, and there is no other case that she set up.

By all standards, the authorities in *Interfreight Forwarders (U) Ltd v. East Africa Development Bank (supra)* and *Jani Properties Ltd v. Dar-* *es-Salaam City Council [1996] EA 281* are still a good law. Nonetheless, these authorities ought to be applied while bearing in mind the unique facts and circumstances of each case. In the instant case, the appellant did not raise any new claim that is materially different from what she originally pleaded and therefore she does not offend Order 6 Rule 7 of the Civil Procedure Rules.

I will then address the issue of inconsistency in the testimonies of PW1, PW2 and PW3, as alluded to by the learned trial magistrate. In the case of *Oryem David v. Omory Phillip (supra),* the court held that:

> *"What constitutes a major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material, i.e. "essential" to the determination of the case. Material aspects of evidence vary from case to case but generally, in a trial, materiality is determined on the basis of the relative importance between the point being offered by the contradictory evidence and its consequences to the determination of any of the facts or issues necessary to be proved. It will be considered minor where it relates only to a factual issue that is not central or that is only collateral to the outcome of the case.*"

The court went on to state that:

*"It is trite law that grave inconsistencies and contradictions unless satisfactorily explained will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored."*

In the instant case, the appellant testified that she and the husband bought the suit land at a consideration UGX. 20,000/= and 5 goats. In his testimony, PW2, the appellant's husband, stated that he believed the suit land was for the appellant because she used her own money and goats that her father had gifted her to purchase the suit land. PW3, the original owner of the suit land stated that she sold the suit land to PW2 and the appellant as husband and wife, respectively.

At the *locus in quo* visit, the appellant clarified that she bought the suit land using her own goats and paid additional UGX. 20,000/=. This evidence was not contradicted.

There is evidence on record that the appellant took possession of the suit's land in 2002. But in 2004, as evidenced by Pexh 2, her husband requested her to accommodate the respondent in one of the storage houses on the suit land until he built for the respondent her own house. In 2006, the respondent left the suit land protesting the husband's failure to build her own home. It is clear that after 2006, the appellant quietly regained possession of the suit until 2021 when the respondent tried to forcibly reenter the suit land.

On the other hand, the respondent, who testified as DW1, told the court that she bought the suit land from her husband, Nkongoki Patrick and the appellant at UGX. 1,200,000/=. That the appellant first informed her that they needed money to pay school fees for their son, and she paid that consideration directly to her husband and the appellant. However, she did not produce any documentary evidence to that effect. DW2, the respondent's son told the court that the respondent bought the suit land at the time he was young and that although he was aware that there was an agreement to that effect, he could not tell the court in whose custody that agreement was.

It was further the testimony of PW2, that when the respondent left the suit land in 2006, they sold their plot of land in Mbarara and then he acquired another plot of land in Kyanya Mugara in Kitagwenda district, where she built a home for the respondent.

At the *locus in quo* visit, the respondent clarified to the court that in or around 2006, her husband started harassing her and she left the suit property together with her children to go and live at her parents' home, but the property was later given to her by her husband in 2019 by executing an agreement although she failed to take possession of it.

Citing the cases of *Oryme David v. Omony Phillip HCCS No. 100 of 2018* and *Jani Properties Ltd v. Dar-es-Salaam City Council [1996] EA 281*, the trial magistrate held that:

> *"It is my observation that the testimony of the defendant has been consistent while the plaintiff's contradictions are grave since they refer to the facts which are in her knowledge and are therefore deliberately intended to defraud the defendant of her property."*

The learned trial magistrate went on to state that:

*"I find that the plaintiff's evidence unreliable and has as a consequence failed to discharge her burden of proof of her claim on the balance of probabilities and as such, I declare that the suit property belongs to the defendant."*

Upon careful evaluation of the evidence on the record, as a whole, I find that the learned trial magistrate concentrated on the minor inconsistencies in the testimonies of the appellant's witnesses, moreover, in my view, which had been satisfactorily explained by PW3.

Decision of Hon. Justice Vincent Emmy Mugabo Page **14** of **17** Having led cogent evidence that the appellant together with her husband bought the suit land from Maryante Angelica and took possession of the same, the claim by the respondent that she bought land from the appellant and her husband imposed an evidential burden on her to prove so. I find no evidence on record to support the respondent's claim.

It is the finding of this court that, on the balance of probability, the appellant led cogent evidence that she is the owner of the suit land. The inconsistencies in her testimony are minor and satisfactorily explained in view of the issues framed by the trial court.

The factual issue at the trial was: who was the owner of the suit land? I find that inconsistencies in the appellant's testimony, as pointed out by the trial magistrate, are not collateral to the determination of that issue in favour of the appellant given the respondent's claim that she bought the suit land from the appellant and her husband. The respondent's claim that she purchased the suit land from the appellant and her husband constitutes an admission that the appellant initially had an interest in the suit land.

The respondent did not discharge her evidential burden to prove to the court that she bought the suit land. The respondent was equally inconsistent when in her written statement of defence she stated that she acquired the suit land as a share of her matrimonial property and then later in her testimony she testified that she bought the suit land from the appellant and her husband at a consideration of UGX. 1,200,000/= although she did not lead cogent evidence to that effect. On the whole, the inconsistencies of the appellant were minor and satisfactorily explained compared to those of the respondent which were major and ignored by the trial magistrate.

It was therefore wrong for the learned trial magistrate to declare that the suit land belonged to the respondent in the face of her failure to discharge her evidential burden of proof.

For the reasons given above, the instant appeal succeeds. The judgement and orders of the trial court are hereby set aside.

It is trite law that where the evidence upon the record is sufficient to enable the High Court to pronounce judgment, the High Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the High Court proceeds *(See: section 80 of the Civil Procedure Act and Order 43 Rule 20 of the Civil Procedure Rules).*

In the instant case, there is sufficient evidence on record on whose basis this court can determine this suit in its finality and give orders to that effect.

Resultantly, based on the proper re-evaluation of evidence on record, judgement is entered for the appellant in the following terms:

- (i) The judgement and orders of the trial court are hereby set aside. - (ii) It is hereby declared that the suit land belongs to the appellant. - (iii) The respondent is hereby declared a trespasser on the suit land. - (iv) A permanent injunction is hereby issued restraining the respondent, her agents or anybody claiming under her from interfering with the appellant's possession of the suit land. - (v) The respondent is hereby ordered to give vacant possession of the suit land to the appellant with immediate effect. - (vi) Each party shall bear its own costs in this court and the court below.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**