Mademaga v Dudua & Another (Civil Appeal 27 of 2019) [2024] UGHC 965 (3 October 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

## CIVIL APPEAL NO. 027 OF 2019

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# ARISING FROM ARUA CIVIL SUIT NO.30 OF 2012

SAID MADEMAGA:::::::::::::::::::::::::::::::::::

**VERSUS** 10

# **1 YUDAS DUDUA**

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2. DRILEYO GEOFREY::::::::::::::::::::::::::::::::::::

#### 15 **BEFORE: HON. JUSTICE COLLINS ACELLAM**

### JUDGEMENT

### Introduction

20 This is an Appeal arising from the decision of his Worship Kedi Paul, Magistrate Grade One delivered on the 26th day of September 2019 at Arua vide Civil Suit No. 30 of 2012 wherein judgement was entered for the Respondents on terms that;

The Plaintiffs/ Respondents are declared the lawful owners of the suit land, general damages of 25 8,000,000/= with interest at a court rate, vacant possession, permanent injunction against the Defendant/ Appellant and costs to the Plaintiffs/ Appellants.

The Appellant being dissatisfied with the decision of the lower court filed an Appeal for orders that the Appeal be allowed, the decision of the Trial Magistrate be set aside and the Respondent be ordered to pay the costs of this appeal and the costs in the court below on grounds that;

- 1. The learned trial Magistrate erred in law and in fact when he held that the Appellant was not the lawful owner of the suit land. - 2. The learned trial Magistrate erred in law and in fact when he failed to properly evaluate evidence hence occasioning a miscarriage of justice.

The Respondents/Plaintiffs brought a suit against the Appellant/Defendant for vacant

## Background

40 possession, fraud, trespass to land, permanent injunction to restrain the defendants and their agents from trespassing, harassing, intimidating or in any way interrupting the Plaintiff's/ Respondents use and enjoyment of land located at Oli D Cell, Oli Division, Arua Municipality measuring approximately 85 meters by 190 meters, general damages and costs of the suit. The Respondents/ Plaintiffs in their amended Plaint and written submissions in the lower court

averred that most of the land at Oli 'D' Cell was owned by a one Bilea who later divided the land 45

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- among the people squatting on the land and among the people who benefited from the division $\mathsf{S}$ were Adia Cherepke / the Respondents' grand father, Mohamed Awii Onyinda / the Appellant's father and others. That their grand father got 85 meters by 190 meters of the land herein referred to as the suit land and that its part of the land that the Appellant trespassed on the south western and north eastern corners and the trespass was 29 meters by 31 meters and 9 meters by 22 meters - respectively. That the Respondents' grand father died in 1960's and his land was inherited by 10 his son Ondrandua Finahasi (Respondents' father) who used the land for settlement, farming and planting trees up until his death in 2004 and left the land to the Respondents. And that in 2002 when the Appellant came back from exile he started fraudulently grabbing the land of the Respondents by orally asking for 29 meters by 31 meters for doing petty business. The Plaintiffs/ - 15 Respondents and their late father granted the Appellant the said permission. That since the business was not doing well, the Appellant contacted the Respondents and their late father to build commercial buildings of four rooms on the land which rooms would equally be shared by the two families to generate income. The Respondents also averred that in order for the Appellant to convince them and their late father, he claimed that Arua Municipal Council - 20 required all land owners in the Municipality to develop their land or else their land would be allocated to potential developers. The Respondents and their father fearing to lose the land innocently submitted to the Appellant's offer and that there was an option of the Appellant to buy the land with time. That After the death of the Respondents' father in 2004, the Appellant started claiming that he is the owner of the suit land and as result. The Respondents/Plaintiffs - 25 brought a suit against the Appellant/Defendant that he has no legal interest in the land whatsoever and that he is on the land unlawfully and without authorization by the Plaintiffs/ Respondents. The Appellant/Defendant on the other hand in his written statement of defence averred that at all material times has been the lawful owner of the suit land having inherited the same from his late father Mohammed Awii Onyinda. And that his family was in occupation of - 30 the land since time immemorial save for the time between 1979 – 1995 when the Appellant was in exile. That during that period the father of the Respondents only acted as the caretaker of the suit land and that upon the Appellant's return he willingly gave back the land to the Appellant. That the Respondents' father has never been the lawful owner of the suit land. That he has never entered in an agreement with the Respondents. The Appellant also denied any allegations of fraud, trespass and contends that he is in lawful occupation of the suit land. He then prayed that 35 - the suit be dismissed with costs.

To prove their case the Plaintiffs/Respondents led evidence of 6 witnesses while the Defendant/ Appellant led 4 witnesses in evidence. The trial Court visited locus in quo and recorded its observations, established the key features mentioned by the various witnesses in their testimony. Which formed part of the judgement.

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The issues raised for the Court's determination were as follows:

- Whether the Plaintiffs are the lawful owner of the suit land? $1.$ - Whether the Defendant trespassed on the suit land? $2.$ - 3. What are the available remedies to the parties?

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The trial court answered issues 1 and 2 in the affirmative in favour of the Respondents/ Plaintiffs 5 against the Appellant/Defendant as can be discerned in the lower Court's judgement as summarised herein above.

# **Representation and Hearing**

During the Hearing of the Appeal, the Appellant was represented by *M/s Mbeeta*, Kamya & Co. *Advocates* while the Respondents were represented by *M/s Bundu & Co. Advocates*.

Both parties filed their written submissions. The Appellant filed his written submissions on the 31<sup>st</sup> May 2023 while the Respondents filed their written submissions on the 12<sup>th</sup> of September 15 of 2024.

# Duty of the 1<sup>st</sup> Appellant Court

20 The duty of the 1<sup>st</sup> Appellate Court was well stated by the Supreme Court of Uganda in its land landmark decision of Kifamutwe Henry vs Uganda, SC, (Cr) Appeal No. of 2007 where it held that;

"The appellate court has duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate court must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it."

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and 30 make its own conclusions. See: Lovinsa Nankya vs Nsibambi (1980) HCB 81.

In considering this appeal, the above legal provisions are taken into account.

Grounds of the Appeal 35

The Appellant raised 2 grounds to prosecute his Appeal and they are as follows;

1. The learned Trial Magistrate erred in law and fact when he held that the Appellant was not the lawful owner of the suit land.

2. The Learned Trial Magistrate erred in law and in fact when he failed to properly evaluate evidence on record hence occasioning a miscarriage of justice.

## Determination of the Appeal

I have read and considered the pleadings, and written submissions of both parties, the record of 45 appeal and the lower courts file and I will rely on them to make my judgement. I have also noted and advised myself on the authorities cited by both parties and other authorities although not relied on by the parties but are important in settling this appeal.


#### 5 <u>Preliminary Objection.</u>

Before delving into the merits of the Appeal I will first of all deal with the Preliminary objection raised by Counsel for the Respondents.

In their written submissions, Counsel for the Respondents raised a preliminary objection that; 10 The two grounds are too general and that they should be struck out. Counsel continued to aver that the grounds offend the provisions of Order 43 Rule 1 and 2 of the Civil Procedure Rules which requires a memorandum of appeal to set forth concisely the grounds of the objection to the decision appealed against. To espouse on their submissions, Counsel relied on the case of Akol Henry vs Malinga Noah and others Civil Appeal No. 0022 of 2010 wherein Court held 15 that properly framed grounds of appeal should specifically point out errors observed in the course of Trial including the decision, which the appellant believes occasioned a miscarriage of justice. His Lordship further emphasized that courts frown upon the practice of advocates setting out general grounds of appeal that allow them to go on a fishing expedition at the hearing of the appeal hoping to get something they themselves do not know.

Counsel also referred this Honourable Court to the cases of Katumba Byaruhanga vs Edward Kyewalabye CA. No. 2 (1999) KALR 621 and Attorney General vs Florence Baliraine CA No. 7 of 2003.

25 Counsel then prayed that the two grounds be struck out with costs to the respondents.

Counsel for the Appellant did not respond to the preliminary objection.

I have read and considered the authorities cited by Counsel for the Respondents and I agree with them. 30

I have also considered other authorities wherein general grounds were raised and indeed Courts frown at raising general grounds of appeal for instance, in the case of Celtel Uganda Limited t/a Zain Uganda vs Karungi Civil Appeal No. 73 of 2013 (2021) UGCA 93 the wording of the ground therein was;

"The learned appellate judge failed to evaluate the evidence on record and made an erroneous decision."

- 40 In resolving this this matter, Hon. Justice Remmy Kasule while relying on the principle articulated in **Rachobai Shivbhai Patel Ltd and Another vs Henry Wambuga and Another** SCCA No. 006 of 2017, where court pointed out a similar error as in the instant matter, went on to strike off the grounds of appeal for offending the Civil Procedure Rules. - Further, in the case of *Okot and others vs Lamoo Civil Appeal No. 26 of 2018(2020)*, Justice 45 Stephen Mubiru who was faced with a similar situation wherein the ground of appeal was framed as

"........... the learned trial Magistrate erred in law and fact when he failed to properly. evaluate the evidence before him thereby arriving at an erroneous decision against the *appellants thus occasioning a miscarriage of justice.*" went on to hold that the ground

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is too general and offends order 43 Rule 1 and 2 of the Civil Procedure Rules which require a memorandum of appeal to set forth concisely the grounds of objection to the decision appealed against.

I therefore adopt both the holdings in the above authorities to the instant appeal where two 10 grounds were raised and they read as follows;

- 1. The learned Trial Magistrate erred in law and fact when he held that the Appellant was not the lawful owner of the suit land. - 2. The Learned Trial Magistrate erred in law and in fact when he failed to properly evaluate evidence on record hence occasioning a miscarriage of justice.

The grounds are indeed too general as they do not pinpoint the exact errors which this Court should fault the trial Magistrate by this appeal.

20 That being the case, I find the grounds of appeal so general intended to send this Court to a fishing expedition I therefore strike them off.

Accordingly, since I have resolved the point of law in the affirmative, then this appeal is inhibited on the basis that it does not comply with the provisions of the law under Order 43 Rule 1 and 2 of the Civil Procedure Rules.

Appeal dismissed for reasons stated above and costs of the Appeal awarded to the Respondents.

I so order

$2...$ day of ... Dated and signed this.

**Collins Acellam**

JUDGE

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