Manyindo v Kabigabwa (HC CV CA No. 0026 of 2009) [2012] UGHC 442 (18 May 2012)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

# **HC CV CA NO. 0026 OF 2009**

**MANYINDO ASTONE APPELLANT**

#### **VERSUS**

#### **KABIGABWA JOHN RESPONDENT**

## **BEFORE HON. JUSTICE MIKE J. CHIBITA**

#### **JUDGMENT-**

This is an appeal against the judgment and orders of His Worship Godfrey Kaweesa, Magistrate Grade <sup>I</sup> Fort Portal, delivered on <sup>22</sup>nd - fD May, 2009.

The Memorandum of appeal contains seven grounds of appeal, namely that:-

- 1. The learned trial Magistrate misdirected himself on the arrived at a wrong decision. erred in law and fact when he law of limitation and thereby — - 2. The learned trial Magistrate on the erred in law and fact when he ignored the Appellant's- evidence and largely relied respondent's evidence. - 3. The learned trial Magistrate erred in law and fact when he. misdirected himself on the doctrine of constructive notice and thereby weighed the same in favour of the Respondent hence a wrong decision. - 4. The learned trial (Magistrate erred in law and fact when he misdirected himself on the law of gifts and. thereby arrived at a wrong decision.

**i**

5. The learned trial Magistrate erred in law and fact when he based his decision on contents of a document which was never tendered in evidence by the Respondent and arrived at a wrong decision.

$\mathbb{C}$

6. The learned trial Magistrate erred in law and fact when he $-5$ made importations in the equitable maxim of competing equal entities and thereby made an erroneous decision.

$-D$

7. The learned trial Magistrate erred in law and fact when he overtly relied on proceedings at the locus which were not conducted according to the law.

The appellant was represented by learned Counsel Rashid Babu the while the respondent was represented by learned Counsel Moses Komunda, both of whom filed written submissions.

The brief background of the case is that the appellant sued the respondent in the trial Magistrates court for trespass seeking orders $\overline{5}$ for eviction and vacant possession.

He testified that he was given the land in question (two acres) plus another thirty acres by the chiefs in 1967. He obtained a certificate of title for the thirty acres but not the two.

In 1983 the respondent was apparently allocated the two disputed $\sim 2\mathcal{D}$ acres by another chief. He subsequently started utilizing it until 1995 when the appellant attempted to survey the land.

The trial Magistrate found for the respondent hence this appeal.

Indeed it is trite law that a first appellate court is under duty to subject the record of the lower court to fresh scrutiny and arrive at $-2$ a just conclusion. See Selle and another vs Associated Motor Boat Co. Ltd 1968 EA 123, among others.

$\overline{2}$

I have therefore had occasion to peruse and scrutinize the entire record of the lower court.

The issues framed at the trial were adequate to resolve the dispute. The grounds of appeal on the other hand are too numerous and superfluous to be of much help. They tend to cloud the issue.

$\overline{<}$

$-2i$

The issue of whether the suit land belonged to the plaintiff should have been enough to resolve the dispute. Indeed it helped resolve it save that the judgment went into other unnecessary areas hence attracting a long list of grounds of appeal.

There is evidence that the plaintiff was allocated the land in 1963 $-10$ and he surveyed off 30 acres, which is undisputed. What is disputed is a residue of two acres that was left out." $\alpha$

The learned trial Magistrate in his judgment had the following to say on that point:-

$-i\varsigma$ "However he failed to advance a convincing reason as to why he never surveyed and obtained a certificate of title for the entire land as already given him in 1964. Why didn't he have his entire donation secured in his land title?"

Ultimately the answer to this question should have disposed of the entire issue that was framed.

Whatever the answer, however, what is clear is that two acres were left out of the survey lines and therefore out of the certificate of title.

Just as the appellant had been allocated this land in 1963 by a chief. chief, in 1983 another chief established that the two acres were vacant and available. He therefore decided to allocate it to the respondent.

There is evidence on record too to suggest that indeed the respondent was allocated land by a chief in 1983. All this was public land and the chiefs were entitled to allocate it.

It follows logically that if the appellant had secured a certificate of title for thirty two acres, inclusive of the two now in dispute, no chief would have allocated that land.

<sup>I</sup> therefore find that the learned trial Magistrate was right in concluding that the answer to the issue was in the negative. The suit land does not belong to the appellant.

**n**

As to whether he arrived at that conclusion logically or not leads us to the grounds of appeal.

On ground one, whether limitation was an issue or not is therefore irrelevant and would not change the final conclusion reached.

Ground two is not backed by evidence. Judging from the conclusion arrived at, the learned trial Magistrate relied on the most relevant evidence and reached the correct decision.

Ground three concerns constructive notice and it is my finding that whichever way it was handled did not affect the resolution of the issue in a significant manner.

Whether the learned trial Magistrate misdirected himself on the law^\_ of gifts as alleged by ground four is immaterial. Both parties were allocated vacant pieces of public land by authorized chiefs. The discussion of the concept of gifts is immaterial to the issue.

Ground five relates to a document which <sup>I</sup> did not encounter in Counsel's submissions so it is assumed that it was abandoned. Even if it were not, the conclusion to the issue framed by the learned trial Magistrate would not have been resolved differently according to the evidence adduced.

**4**

Ground six was about competing equities and ultimately the resolution of the issue framed by the learned trial Magistrate would have been resolved in favour of the respondent regardless of how the resolution of competing was arrived at.

Finally on ground seven regarding the conduct of proceedings at the locus in quo, there is no evidence to show that any party asked qiid was denied the right to cross examine a witness.'

Consequently the learned trial Magistrate reached the right decision in evaluating the evidence at hand.

The appeal therefore fails and is dismissed with costs to the respondent.

The judgment and orders of the lower court are hereby upheld.

Dated at Fort Portal this 18th day of May. 2012

**LU**

I

**1**

JUSTICE MIKE J. CHIBITA

JUDGMENT READ AND DELIVERED IN THE PRESENCE OF:

1. BABU RASHID FOR APPELLANT

2. AMBROSE KOMUNDA FOR RESPONDENT

3. PARTIES: JOSHUA KABIGABWA

4. HERBERT MWESIGWA; COURT CLERK/INTERPRETER

OS'W **\*1** <sup>I</sup> **BY:**

MIKE J. CHIBITA

JUDGE

**5**