Mahe v Tumuhairwe (HCCA 29 of 2022) [2024] UGHC 703 (26 July 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCCA 29 OF 2022** 5 **(ARISING FROM ISG-36-CV-CS-10-2014)**

| DAVID MAHE --------------------------------------------------------- | APPELLANT | | |----------------------------------------------------------------------|-----------|--| | | | |

**VERSUS**

**GERESOME TUMUHAIRWE ------------------------------------ RESPONDENT**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **JUDGMENT**

#### 15 **REPRESENTATION**

The Appellant was represented by M/s Bezire D'Bango & Co Advocates, while the Respondent was represented by M/s Ojok Advocates.

#### **INTRODUCTION**

20 The appellant is a son of the late Mpara Paul. That the late Paul Mpara got land as a result of sharing that was in in lease offer in 1977 give to 10 people that don't include the respondent or his father. The land shared by Mpara Paul is comprised in LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 hectares was on 17.8.04 registered in the names of Mpara Paul. On 22/03/2017 the land 25 was registered in the names of David Mahe and Joy Mpara as administrators of the estate of the late Mpara Paul vide HCT 05-CS-AC-243 -2007.

On the other hand, the respondent is a son of the late Rwitirimba James claimed to have been a beneficiary of 59 hectares as his share of land of Mugungu group 30 society. That the land was owned by members including the appellants father. That each member was to share 59 hectares, and alleged the respondent's 59 hectares were included in appellant's title LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 hectares.

## **BACKGROUND**

The Appellant sued the Respondent in the Chief Magistrate's court for; a declaration that the Respondent and all persons under him have no ownership over the suit land grabbed by the Respondent from the estate of the late Paulo

5 Mpara, an eviction order, a permanent injunction and costs of the suit.

It was the Appellant's case that he is a joint administrator of the estate of his deceased father (the late Paulo Mpara) and that their father employed the Respondent and his father before him as a herdsman and permitted him to erect 10 a shelter and plant a garden contingent upon his continued employment. That later on, the late Mpara dismissed the Respondent as a herdsman, but the latter

stubbornly refused to vacate the suit land but instead grabbed the same and

- 15 The Respondent argued in his defence that he has never been a herdsman to the late Mpara; but that with a host of other people including the Appellant's father, the Respondent's father was a beneficiary of a scheme which saw them subdivide communal land into respective individual landowners. That the Respondent currently occupies his deceased father's share measuring 20 approximately 59 hectares situate at Mugugu, Busheka, Bukanga – Isingiro District, which the Appellant fraudulently included as his when obtaining a certificate of title for his father's land.

#### **AGREED FACTS IN LOWER COURT**

brought other settlers thereon.

- 25 (see page 4 of the record of proceedings) The parties agreed - 1. That the plaintiff is the administrator of the estate of the late Mpara Paul. - 2. The registered title for 118 hectares is in the names of Mpara Paul - 3. The defendant occupies part of the land - 30

## **ISSUES IN THE LOWER COURT**

(see page 4 of the record of proceedings)

The issues for determination before the trial Court were;

1. Whether the Defendant/Respondent has any legal interest in the part of 35 the land he is occupying or is a trespasser.

- 2. Whether the Plaintiff/Appellant fraudulently acquired a land title over the disputed land. - 3. What are the remedies available to the parties? - In a judgment delivered on 20th 5 April 2022, the learned trial Magistrate held that - 1. The Plaintiff (appellant herein) had failed to prove his case on a balance of probabilities and dismissed the suit with costs to the defendant (respondent herein). - 10 2. The defendant (respondent herein) proved that he owns the suit land and is declared the rightful owner of the suit land. - 3. The defendant (respondent herein) proved that the certificate of title was acquired fraudulently and is entitled to apply for consequential orders. - 15 The appellant being dissatisfied with that decision of His Worship Muhangi Gibson, lodged this appeal.

## **GROUNDS OF THE APPEAL**

The grounds supporting the appeal as stated in the memorandum of appeal are;

- 20 1. The learned trial Magistrate erred in law and fact when he held that the Plaintiff did not prove his case on a balance of probabilities and dismissed it with costs to the Defendant thereby reaching a wrong decision. - 2. The learned trial Magistrate erred in law and fact when he held that the Defendant proved that he owns the suit land and is declared the rightful 25 owner of the suit land thereby reaching a wrong decision. - 3. The learned trial Magistrate erred in law and fact when he held that the Defendant proved that the certificate of title was acquired fraudulently and is entitled to apply for consequential orders thereby reaching a wrong decision. - 30 4. The learned trial Magistrate failed to properly evaluate the evidence as a whole thereby arriving at a wrong decision. - 5. The learned trial Magistrate erred in law and fact by failing to consider the total lack of evidence for the survey claimed by the Defendant thereby reaching a wrong decision.

- 6. The learned trial Magistrate displayed extreme bias and complicity in favor of the Defendant and occasioned a miscarriage of justice to the Appellant when he refused to investigate to a logical conclusion the disappearance of several pages of the Defendant's concluded oral testimony from the court 5 file under his direct custody and lock and instead hastened to admit Defence Witness Statements with concocted documents. - 7. The learned trial Magistrate displayed extreme bias and complicity in favor of the Defendant and occasioned a miscarriage of justice to the Appellant when he conducted the Defendant's side of the case like a 10 plebiscite/referendum during the visit of the locus in quo.

The Appellant thereby prayed for orders;

- i. That the appeal be allowed and judgment and orders of the lower Court set aside. - 15 ii. That judgment be entered for the Appellant with remedies prayed for in the plaint. - iii. That costs of the appeal and of the lower Court be awarded to the Appellant.

#### 20 **SUBMISSIONS**

The Appellant's submissions were filed on 13th February 2023 while the Respondent's submissions were filed on 9th March 2023.

#### **Appellant's submissions**

#### 25 **Ground one**

It was argued that the Appellant fulfilled his burden of proof through the testimonies of PW1 and PW2 and documentary evidence which proved that the suit land was part of 118 hectares owned by Mpara Paulo as got after 10 beneficiaries of a historical lease offer of 22nd July, 1977 shared the land amongst

- 30 themselves. That James Rwitirimba the Respondent's father, was not among the said 10 offerees but came onto the land as Mpara's herdsman. It was further submitted that surveying of the suit land took place under the Respondent's watch and he did not raise any complaint nor lodge a caveat. Counsel contended that it was incumbent upon the Respondent to prove the survey he relied upon - 35 to claim ownership of the suit land.

#### **Ground two**

Counsel submitted that under **Section 59 of the Registration of Titles Act Cap 230**, a certificate of title is conclusive evidence of ownership of land, and that 5 the Appellant as administrator of the estate of the late Mpara, lawfully holds the latter's certificate of title. That the Respondent did not caveat or contend the said certificate in any way before it was issued. And that by being a laborer for the land owner, the Respondent's father and consequently the Respondent, does not have any color of right over the suit land.

#### **Ground three**

Counsel relied on **FREDRICK ZAABWE VS ORIENT BANK & OTHERS SC CIVIL APPEAL No.4 of 2006**, to define fraud. It was argued that there was nothing to prove the intentional perversion of truth by the Appellant and that the Appellant 15 acquired a certificate of title over his father's property after a thorough survey process which was not queried by the Respondent. Counsel blamed the Respondent for coming to Court with dirty hands by claiming to own 59 hectares yet he indicated 70 hectares in the Land Ownership Verification Form, in addition to DW3 claiming that 12 people were beneficiaries of the lease offer, yet the

- 20 Lease Offer Form indicates 10 people exclusive of the Respondent and his father. Counsel cited **C. R. PATEL VS THE COMMISSIONER LAND REGISTRATION & OTHERS HCCS No.87 of 2009** for the position that fraud must be specifically pleaded and proven beyond a mere balance of probabilities, and further relied on **KAMPALA BOTTLERS LTD VS DAMANICO (U) LTD SCCA No.22 of 1992** for the 25 holding that a party alleging fraud must prove that the fraud is attributed to the - transferee. It was contended that the trial Court did not show the standard at which fraud had been proved thereby reaching a wrong conclusion.

#### **Grounds 4 and 5**

- 30 Counsel cited **ODONGO OCHAMA VS RAJAB CIVIL APPEAL N0.119 of 2018** to argue that evaluation of evidence must be approached as a whole and a Court ought not consider the Plaintiff's story in isolation of the Defendant's story. Counsel faulted the trial Court for not finding out why the Respondent withdrew an earlier case he had filed against the Appellant, and for ignoring the fact that - 35 the Respondent's witnesses testified to undertaking of a survey of the

Respondent's land but did not adduce a survey report. That the trial Court made its decision based on assumptions and conjectures leading to erroneous findings, which counsel invited this Court to interfere with **(**see **OKOT & OTHERS VS LAMOO CIVIL APPEAL NO.26 of 2018).**

#### **Grounds 6 and 7**

Counsel accused the trial Court of bias for not investigating how pages 38 and 42 of the record bearing the Respondent's testimony disappeared off the record, but instead proceeded. It was further submitted that the trial Court heard from 10 other witnesses while at the locus in quo who were not among the witnesses who testified in Court. It was prayed for the appeal to be allowed.

## **Respondent's submissions Ground one**

- 15 It was contended that the trial Court came to a right decision after exhaustively analyzing evidence and the testimonies of the 4 Defence witnesses which proved how the Respondent's father acquired the suit land. That Court rightly considered the fact that the Respondent's father was buried on the suit land and that the Respondent has an old semi-permanent house thereon. Counsel further - 20 argued that there was no survey done for the 118 hectares the Appellant's claims to own as the only survey done was witnessed by all beneficiaries of the lease from which they subdivided and each got 59 hectares. Counsel prayed for this ground to be allowed.

## 25 **Ground two**

Counsel submitted that even though a certificate tile of land is conclusive evidence of ownership, the same can be cancelled if it was obtained fraudulently. That the defence witnesses clearly testified as to how the Respondent's father contributed money like other members of the Mugugu

30 group, shared 59 hectares and the Respondent's occupation of the same by establishing a mud wattle house and a banana plantation. And that Court was right in holding that the subject property rightly belonged to the Respondent.

#### **Ground three**

Counsel reiterated his submissions on the foregoing ground and added that there was no survey carried out prior to the Appellant's father obtaining a certificate of tile over the suit land and that his action was condemned by the

5 other lease beneficiaries.

#### **Grounds 4 and 5**

Counsel argued that the trial Court considered and analyzed both side's evidence before coming up with its conclusion and went on to reiterate his earlier 10 submissions.

**Grounds 6 and 7**

Counsel contended that there could be no bias given that the matter had been tried by five Magistrates over a period of 14 years. And that the documents 15 tendered at locus in quo had already been included in the scheduling memorandum. Counsel added that Court spent eight months looking for the missing records of the Respondent's testimony after which the Appellant was allowed to cross examine the Respondent. Counsel prayed for the appeal to be dismissed with costs.

## **DUTY OF APPELLANT COURT**

The duty of a first appellate court was laid out in the case of **FR. NARSENSIO BEGUMISA AND 3 ORS V. ERIC KIBEBAGA SCCA NO. 17 OF 2002** that;

25 *"The legal obligation of the 1st appellate court to reappraise 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 conflicting evidence, the appeal court has to make due* 30 *allowance for the fact that it has neither seen nor heard the witnesses."*

The above principles will guide this court in the determination of the grounds of appeal that will be determined as here below stated. ### **DETERMINATION**

It is trite law that the party that alleges has duty to prove the same as stipulated in section 101 – 103 of the Evidence Act and was also held in **KARAMIRA V KIGGUNDU. HIGH COURT CIVIL APPEAL 93 OF 2018.**

This appeal is based on the claim that the respondent has no claim to be on the suit land and should be evited. in essence it's a matter revolving around trespassed on the suit land. *The East African Court of Appeal in SHEIK MUHAMMED LUBOWA VERSUS KITARA ENTERPRISES LTD C. A NO.4 OF 1987,*

10 noted that; -

*"In order to prove the alleged trespass, it was incumbent on the Appellant to prove that the disputed land belonged to him, that the respondent had entered upon that land and that the entry was unlawful in that it was* 15 *made without his permission or that the respondent had no claim or right or interest in the land".*

It is trite that facts that have been admitted by the parties at the hearing need not be proved as is stated in section 57 of the Evidence Act. In this case, the 20 parties agreed at the scheduling that;

- 1. The registered title for 118 hectares is in the names of Mpara Paul - 2. The defendant occupies part of the land (see page 4 of the record of proceedings)

### 25 **I will address ground 1,2,4,6 & 7 together**

I have perused the court record and find that a certificate of title exists whose particulars are LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 hectares that was on 17.8.04 registered in the names of Mpara Paul. On 22/03/2017 the land was changed into the names of David Mahe and Joy Mpara as 30 administrators of the estate of the late Mpara Paul vide HCT 05-CS-AC-243 -2007. This corroborates the agreed fact at scheduling that the title of 118 hectares exists, and it is now in the names of the appellant and another.

I have also noted that the other agreed fact at scheduling was the fact that the 35 respondent (defendant in lower court) occupies part of the land comprised in

Page **8** of **13**

LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 hectares. This is further corroborated by the appellant who in his testimony as PW1 stated during cross examination that;

# 5 *"Currently (me and the defendant) we stay together on the suit land."* (see page 9 of the record of proceedings)

This evidence confirms that the respondent is in occupation of the land. This means that in order for the appellant to be entitled to an eviction order, they 10 have to prove that they had land, and without their consent of the respondent moved onto the land, which in essence is would amount to proving trespass.

The appellant herein stated that his father and nine others applied as Mugungu group for a lease offer in 1977, but the defendant's father was not among the 10 15 persons in the lease offer (see page 7 of the record of proceedings). On his part the respondent herein stated that his father joined Mugungu group as a member. he stated that upon his father's death, his mother was recorded in the society books and money was paid. He contended that their family was also entitled to a share of the land (see paragraph 2 to 4 of the respondent's witness 20 statement as DW1). Despite making these allegations and each party bringing witnesses to support their positions, the parties did not exhibit on court record the relevant documents such as the lease offer of 1977.

The evidence of sharing the land is stated by PW2 Tumwine Enos during cross 25 examination at page 11 of the record of proceedings and paragraph 4 of Dw1, Gersom Tumuhairwe's witness statement. The evidence on record shows that in 1996 or 1997 the members of Mugungu group abandoned pursuit of the land as a group as was allegedly given to them in the lease offer of 1977 and instead shared the land with each party applying for its own piece of the land.

I have to determine how long the respondents were on the land while it was not titled, that is before the appellant father applied for the suit land.

1. The appellant while testifying at PW1 stated during cross examination that *"before my father died he said at one point the defendant brought a form* 35 *for him to sign…. I don't know when my father joined Mugugo group . my*

*father died in 2006. It was in 1996 when my father started chasing The defendant until they went to court"*. (see page 9 of the record of proceedings)

2. Pw2 Tumwine Enos testified during cross examination that

5 "*Paul (appellant father) started chasing them (respondents) in 2000. It had taken 15 years after Rwitirimba died"* (respondents father) (see page 11 of the record of proceedings)

In my analysis, I know that lease offers have a clause that the offer is subject to 10 the land being available and undisputed. The appellants own evidence is that "*It was in 1996 when my father started chasing The defendant until they went to court"* see page 9 of the record of proceedings), clearly this shows that there was a dispute regarding the land. It therefore follows that the lease offer of 1977 was subject to settling whatever dispute existed between the families of the 15 appellant and respondent.

It is worth noting that the appellant's own witness Pw2 Tumwine Enos testified during cross examination that

20 "*Paul (appellant father) started chasing them (respondents) in 2000. It had taken 15 years after Rwitirimba died"* (see page 11 of the record of proceedings)

The above evidence of PW2 shows that the respondents had been on the land 25 for more than 12 years before the appellants' father tried to evict them. This evidence has to be weighed against that of the appellant who testified that;

> *"before my father died he said at one point the defendant brought a form for him to sign…."* (see page 9 of the record of proceedings)

I have considered the above evidence and find that the respondent attempted to process his own land hence necessitating him to request the appellants father to sign for him the land form , in the same vein, the evidence on record shows that the respondents family stayed on the land when it was not yet titled or owned by the appellant, and appellant father attempted to chase them after they had been on the land for more than 12 years after their father had died.

Considering that the fact that the respondent's occupation is an admitted fact 5 even by the appellant, I find that when the appellants father obtained the certificate of title for LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 hectares he enclosed therein land that belonged to the respondent's family.

The respondent alleges that his father was a member of the society and also 10 shared 59 hectares, he has brought a witnesses in support, but in the same vein the appellant had witnesses that state that the respondents family did not share. what is not in doubt from the statements of both parties, is that the respondents father was not part of the original 10 people in the stated lease offer. It is claimed he joined the society later. I note that the respondent did not put on court record 15 documentation as exhibits to show how his father shared.

I therefore find that the evidence is not sufficient to state that his father obtained a share at the time of sharing, but as discussed above the evidence on court record shows that the respondent's family was in occupation of the land for

- 20 more than 12 years when the land had no title. It would therefore mean that the respondents family acquired a right as bonafide occupants to the land they occupy, which was later surveyed and is now part of the land comprised in LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 hectares. - 25 The Trial Magistrate had found that the respondents herein are the owners of the suit land, in my view that statement must be explained to avoid it being misinterpreted. It is my finding that based on the evidence on court record, the respondent's family are bonafide occupants to part of the land thereon, that they are occupying and utilising on land comprised in LRV 3265 Folio 7 Plot 26 - 30 Isingiro Block 71 measuring 118 hectares.

### **I will now address ground 3 & 5.**

The grounds 3 & 5 require court to determine whether the appellant illegally obtained the certificate of title of the land comprised in LRV 3265 Folio 7 Plot 26

35 Isingiro Block 71 measuring 118 hectares

I have perused the court record and I find that the respondent has not proved fraud to justify court to reach the conclusion that the certificate of title of the land comprised in LRV 3265 Folio 7 Plot 26 Isingiro Block 71 measuring 118 5 hectares was obtained illegally. The land granting body can after following the

- steps set out in the law and producing reports recognising the occupants on land, can grant land to a person with occupants thereon, which means the land shall be granted subject to the occupants. - 10 The respondent ought to have at least obtained and attached to their pleadings the landforms on which the appellant or his father applied for and obtained the land. It is these documents that would have made it possible for court to evaluate any fraud in the process, or if any steps laid out in the law were skipped. None of these documents were exhibited in support of the respondents claim.

I find that the respondent did not put on court record evidence that is sufficient to enable this court to reach the conclusion that the title of land comprised in LRV 3265 Folio 7 Plot 26 Isingiro Block 71 was obtained illegally. In that regard, I don't agree with the holding of the Trial Magistrate that the suit land is for the 20 respondent, and he can apply for consequential orders. I find that the evidence on court record does not support that finding of the learned Trial Magistrate.

## **REMEDIES**

The High Court's powers when handling an appeal include confirming, varying or 25 reversing a decree from which an appeal is preferred as is stated in order 43 rule 26 of the Civil Procedure Rules and can pass any decree or make any order which ought to have been made as is provided in order 43 rule 27 of the Civil Procedure Rules.

- 30 In conclusion, I vary the decision and orders of the Trial Magistrate and I substitute the said orders with the following orders that include orders in this appeal. I order that; - 1. The appeal is allowed in part. - 2. The appellants are the proprietors of the land comprised in LRV 3265 35 Folio 7 Plot 26 Isingiro Block 71.

- 3. The respondent's family are bonafide occupants on LRV 3265 Folio 7 Plot 26 Isingiro Block 71. - 4. The respondents shall survey and demarcate the land they are occupying on LRV 3265 Folio 7 Plot 26 Isingiro Block 71. - 5. The parties shall each cater for their legal fees in the Magistrates court and this appeal in the High Court.

WEAR. .......................................

**NSHIMYE ALLAN PAUL M. JUDGE** 26-07-2024

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