Mishaki Mazima v Byanyima and Another (HCT-05-CV-CA-014-2005) [2011] UGHC 207 (15 September 2011)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA

| | HCT-O5-CV-CA-014-2005 | |----------------------|-------------------------------------------------| | | (From (MBR-00-CS-CA-117-2001) | | | MISHAKI MAZIMA | | -VS | | | 1. BYANYIMA CHARLES) | | | | 2. KAFUREKA GEORGE ) | | | BEFORE: THE HON. MR. JUSTICE BASHAIJA K. ANDREW |

## JUDGMENT

- **1.** This is an appeal against the judgment and Decree of Magistrate Grade One at Mbarara, Her Worship Jolly Nkore, dated 3/5/2005. The Appellant, Mishaki Mazirna, represented by M/S Katembeko & Co. Advocates advanced six grounds of appeal. They are as follows:- - 1. The learned trial Magistrate erred in law in failing to address $2.$ herself to the standard and burden of proof which lay on the Plaintiffs and further erred in law and fact to enter judgment for them when they had failed to prove their case against the defendant on the balance of probability. - 2. The leaned trial Magistrate failed to analyze and properly $\sqrt{2}$ consider all issues framed and raised in the case and this failure resulted into a substantial miscarriage of justice. - 3. The learned trial Magistrate misdirected herself on the evidence on record when she held in her judgment that the plaintiffs were the registered proprietors of the suit land and that they held a lease for it when it was not so and this misdirection has caused a substantial miscarriage of justice.

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- erroneous 4. The learned trial Magistrate's conclusion that the plaintiffs had changed the boundary was based on premises in the face of overwhelming evidence of the technical witness, a surveyor (PW3) which proved that the plaintiffs had deviated from the correct boundary marked by the survey lines and mark stones to create a new and false one marked by shrubs and trees and which encroached on the defendant's land. - **<2 <sup>1</sup>** *&* and was (PW2 and PW3) which consistent, corroborative and proved on balance of probability that the suit land belonged to the defendant and that the plaintiffs had trespassed on it. 5. The learned trial Magistrate failed to properly consider and evaluate the evidence of the defendant and that of his two witnesses - **J-**6. The judgment of the trial Magistrate is bad in law as it introduces extrajudicial matters and was made in such perfunctory manner that it leaves many material issues unconsidered and has caused substantial miscarriage of justice.

The Appellant prayed for the following orders:-

- (a) That judgment and orders of the trial court be set aside. - (b)The That the plaintiffs' suit be dismissed with costs to the defendant - (c)The appellant's (defendant's) counter-claim be allowed and judgment thereon be entered for the defendant for the sum of Shs. 1,000,000/=, general damages.

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*I f* (d)That the plaintiffs jointly and/or severally be evicted from the suit land.

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- **a-**(e)That the plaintiffs jointly and or severally be permanently restrained from trespassing on or other cause dealing with the suit land. - **J-**(f) That the plaintiffs pay to the defendant costs in this court and in the court below. - /^M/s Ngaruye Ruhindi, Spencer & Co. Advocates represented the Respondents and opposed the appeal. Both counsel put in written submissions to argue their caife on appeal. Background facts:

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jf. The Plaintiffs and the Defendant were customary owners of their respective pieces of land at Bugwiraro, Rwentamo, Kinoni Nyabushozi in present day Kiruhura District. Their lands share a common boundary. The Plaintiffs, who are father and sons respectively, are the joint owners of their piece of land, contend that the Defendant went over their common boundary and trespassed on their land. The Defendant denied the allegations and made a counter-claim contending that the Plaintiffs are the ones who crossed over their common boundary and trespassed and wrongly encroached on his land, for a portion estimated to be about 20 acres. The trial court entered judgment for the 2nd and 3rd Plaintiffs (since the 1st Plaintiff had died and his case abated), and dismissed the counter-claim of the Defendant and condemned him to costs. Dissatisfied with the court's decision, the Defendant filed this appeal and advanced the six grounds

enumerated above. <sup>I</sup> will resolve them in the order they are presented.

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The duty ofthis court, as the first appellate court, is to re-evaluate the entire evidence of the trial court and subject it to fresh scrutiny and draw its own conclusions. But in doing so, court must make allowance for the fact that it never had the opportunity to observe or hear the witnesses testify at the trial. This principle on the first appeal is well settled and has been applied in Selle v Associated Motor Board Co. [1968] EA 123, and a number of other cases, and this court will be guided by it.

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- **I 5** Plaintiffs never called any other witnesses whom they had mentioned in their testimonies, but called only one witness (PW3), one Fred Rwaburima. ~ The complaint in Ground No.1 of the appeal relates to the o\* standard and burden of proof in civil cases. It was argued by the Appellant's counsel that the trial Magistrate never addressed her mind to the law and the burden and standard of proof, which lay on the Plaintiffs, before she made a decision in the Plaintiffs' favour. Counsel argued that it was not clear as to who of the three Plaintiffs owned the disputed land, and that the advocate for the Plaintiff only revealed the death of the 1st Plaintiff (father to the 2nd and 3rd Plaintiffs) to court on 20/4/2004, but the said Plaintiff did not give evidence even though he was still alive when the Plaintiffs closed their case 5/02/2004. Counsel submitted that the - Counsel for the Appellant further argued that the Plaintiffs' evidence had grave inconsistencies. Fie pointed out one such

**nd** *(,* instance in evidence of the 2nd Plaintiff (PW2) Charles Byanyima, when he testified that the common boundary between them and Defendant was first demarcated in 1989 in presence of the Plaintiff and one Nsereko - who was not called to testify. But in cross-examination, PW2 stated that the period was after 1988, but did not know when the common boundary was demarcated by community members, whom he also does not know. PW3 stated that the boundary demarcations were made in 1988 using sisal and "Bitoma trees" in presence of many people whose names he mentioned, but who differ from those mentioned by the 1sl Plaintiff.

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(on page 2.paragrah 2, where it was stated:- ^2, For his part M/s Ngaruye Ruhindi, Spencer & Co. Advocates for the Respondents responded arguing that the evidence of the Plaintiffs was consistent and cogent. That even the counsel for the Defendant was overwhelmed by the consistency of the evidence of PW1 and PW2 in his submissions in the lower court

> *"The two witnesses (PW1 and PW2) as Plaintiffs must have discussed, before coming to court the type of evidence they would give in court in order to sustain their case and therefore the similarity of their evidence should not surprise anyone".*

*J,-* Regarding the failure to call more witnesses by the Plaintiffs, counsel for the Respondent argued that there is no law that requires a particular number of witnesses to prove a fact in issue. <sup>I</sup> have had the occasion to look at the entire record of proceedings of the trial court in respect of the issues raised in Grounds No.

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*ft* and <sup>2</sup> of this appeal, which counsel for the Appellant choose to argue together. <sup>I</sup> have, however, not come across any of the alleged grave or serious inconsistencies in the testimonies of the Plaintiffs. What could only be ascertained from their evidence is that it was ordinarily consistent. The so-called inconsistence pointed out by counsel for the plaintiff regarding the particular year or period when the boundary demarcations were made is really nebulous. PW2 clearly stated that demarcations were put in place in 1989. Then in cross-examination, he stated that he was not exactly sure but that it was after 1988 when they were put in place. <sup>I</sup> fail to notice any perceived or actual contradiction in that regard. The year 1989 certainly comes after 1988. In any case, the fact in issue was really not the exactness of the year the demarcations were made, but whether the demarcations were made.

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In my view since the dispute resided in the issue whether either party went beyond the boundaries - both parties agree that boundaries exist - then the exact time they were made becomes less of an issue on which a contradiction by a witness could be founded. If there were any other contradictions, then <sup>I</sup> have failed — TLgp to find them.

<sup>I</sup> am also alive to the extract in Appellant's counsel's submissions at trial, which was cited by counsel for the Respondent, and reproduced above, that the witnesses (PW1 and PW2) had adduced matching evidence. Counsel for Defendant at trial even thought the witnesses had discussed what testimony they should adduce in court. Because the evidence was very consistent, learned counsel deduced that the witnesses had connived.

*I,* However, this deduction was unfounded because it would not be possible for the witnesses to anticipate or correctly second-guess what questions he would put to them in cross-examination. Besides, it makes learned counsel's argument self defeating in that the apparently coherent evidence of the Plaintiffs was at the same time contradictory.

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contradictory to merit imputing an untruthful'intent on them. The position of the law on inconsistencies and contradictions in the testimony of witnesses is well settled. The test is whether they are major contradictions and deliberate untruthfulness. See *Shokatali Abdulla Dhalla vs Sadrudin Meralli, SCCA No. 32 of 1994; Anthony Barugahare v Marita Ntaratambi [1987] HCB 95.* 'I have not found the evidence of the Plaintiffs to be

^•Regarding the failure to adduce evidence by 1st Plaintiff (who incidentally passed away before he could testify), and also of the other witnesses who were mentioned but did not testify, the position of the law is settled in that respect. According to *Section 133* of the *Evidence Act (Cap 6),* it states as follows:-

> *"Subject to the provision of any other law in force, no particular-number of witnesses shall in any case be required for proof of any fact."*

. In *Section 109 (supra)* the on burden of proof as to ownership appears to cast squarely on the shoulders of the Defendant. It states as follows:-

> *"When the question is whether any person is the owner of anything which he or she is shown to be in possession, the* **/'** *burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner."*

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- as - In my view these provisions provide the answer to the first two grounds raised in this appeal. There is no particular number of witnesses required to prove a fact. Therefore, it is not fatal for the Plaintiffs not to have called more witnesses as the Appellant/Defendant considered necessary. - On the burden and standard of proof required in civil cases, it would seem clearly that in the instant case, it shifted to the Defendant by operation of statute, to prove on balance of probabilities that the Respondents/ Appellants, who were in actual possession, were not the owners of the disputed land. This scenario is one of the few exceptions to the general rule that the burden of proving to the required standard lies bn the Plaintiff. To that extent, it was incumbent upon the Defendant to discharge that burden and not the Plaintiff. This court cannot fault the conclusions reached by the trial court in Grounds One and Two of the appeal, even though the trial court did not go to great length to give reasons for its findings. - y. In Ground No. 3, the Appellant criticized the trial court for only resolving the 1st issue and abandoning the other two issues in her judgment. Learned counsel argued that the trial Magistrate made a finding that the Plaintiffs are registered owners and lease holders in respect of the suit land, yet none of the witnesses had testified to that effect. He further submitted that the only evidence adduced was that the Plaintiffs were given a lease offer, but not

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/*"* that they had been granted <sup>a</sup> lease or that they were registered owners.

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- J), For his part, counsel for the Respondents argued that the trial Magistrate duly resolved all the issues. On the 1st issue she held that the suit land belonged to the Plaintiffs not the Defendant, and that the Defendant was a trespasser. Counsel also submitted that court entered judgment for the Plaintiffs and awarded them the damages while, at the same time, it dismissed the Defendant's counter-claim. The trial Magistrate also awarded the Plaintiffs costs of the suit. - 3. <sup>I</sup> have subjected the evidence at the trial to fresh scrutiny on the points raised, and the findings have led me to draw the following conclusions. - /^. Firstly, it is true that the trial court made an error in holding that the Plaintiffs were the registered owners/lease holders of the suit land. This was never canvassed in the testimony of the witnesses at all. The evidence on record only referred to the Plaintiffs having been given a lease offer. In my view, this did not translate into a lease or certificate of title, as the trial court seems to imply in its findings. The correct position, in my opinion, sho.uld have been — '"2- *C* that after obtaining a lease offer, the Plaintiffs (whether individually or jointly) caused the survey of the suit land in 1989. Clear demarcations were made in the common boundary by implanting survey mark stones, by a one late Bakuta. This, according to evidence of PW1 which was not challenged in that material particular, followed after an earlier common boundary established in 1980.

*^5* /*,* With the above clarification made regarding the evidence on record of the trial court, it needs to be re-evaluated in light of the fact in issue, i.e. *"whether there was any trespass committed on the disputed land by any of the parties."* Having found that the Plaintiffs had been given a lease offer over the suit land, which they caused to be surveyed following the earlier demarcations of 1980, it would seem clear that the boundaries of the suit land were clearly known, and the Plaintiffs were in occupation of the same. As already stated in Grounds Mo. <sup>I</sup> and 2 above, the statutory burden to prove that the Plaintiffs who were in occupation were not the owners lay on the Defendant. According to the finding of fact by the trial court, this burden was never discharged by the Defendant. <sup>I</sup> would also accordingly agree with the trial court's conclusion that if there was any trespass on the suit land, it was committed by the Defendant who went beyond the known demarcations, and laid claim on the suit land over which he could not prove ownership. <sup>I</sup> would respectfully disagree with the Appellant's arguments, and hold that in spite of the error on facts by the trial court that the Plaintiffs were registered owners and held a lease, it did not alter the conclusions reached as being correct. This ground of appeal therefore fails.

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^2. In Ground No. 4, the gist of the Appellant's complaint is that the trial court did not relay on the testimony of the surveyor, one Kagumaho Paul (DW3), to enter judgment for the Defendant. The Appellant argued that DW3 had told the trial court that he agreed with the boundaries which were demarcated earlier on in 1989 by the surveyor as the correct common boundary. The complaint about the disputed boundary had been taken to the LC III


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Counsel for the Respondent on his part attacked the evidence of DW3 as the worst kind of evidence, in that the witness claimed he was instructed by the Principal Staff Surveyor, yet he never addressed his report to the Principal Staff Surveyor but to the Sub-county Chief. In addition, the witness could not establish the acreage of the land which fell out of the survey causing the dispute. Counsel argued that whereas his instructions were to reopen the boundaries, he instead carved out a survey for the Defendant resulting into giving the land surveyed off that of the s to the Defendant. That DW3 admitted using police to intimidate the Plaintiffs to give their land to the Defendant, and also that his work was not checked for errors nor were the Deed prints he came up with signed by the Commissioner Surveys and Mapping — 2 nor the Principal Staff Surveyor. Also, the distances from one point to another are not indicated, and the prints were never sent to Entebbe for checking.

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**'A**

Without belabouring this particular ground, <sup>I</sup> find no justification for the counsel's criticism of the trial court's finding on this issue. It is clear that no reasonable court would attach much weight to the evidence of Kagumaho DW3. Firstly, he was given instructions to

*1<sup>1</sup>* reopen the boundaries in accordance with an earlier survey by done by the late Bakuta in 1989. Instead, DW3 proceeded to resurvey and came up with a totally different survey plan. This was erroneous to the extent that he deviated from his terms of reference. As it were, he compounded the problem rather than — *^5* offer a solution.

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- J2-Secondly, he made his survey report to the LC III Chairperson (Exhibit DI) rather than to the Staff Surveyor, Mbarara District, who had given him instructions. This would not have been a big problem had DW3 not coupled it with being paid for the work by VO the Appellant. It raises questions as to his partiality and on whose instructions he conducted the survey. - (J. Thirdly, DW3 admitted in cross-examination that he could not establish the total acreage of the land that fell outside the survey - which is actually the suit land. This was in addition to the other technical errors, such as not checking the prints he made for errors, and absence of the required signatures from Survey Department at Entebbe to authenticate the prints. It would seem clearly that DW3's evidence added no value, and the trial court was justified in .not attaching much weight to it. Ground <sup>4</sup> of the - appeal also fails. - ^. Ground No. 5 of the appeal once again raises the issue on the standard of proof in civil matters (balance of probabilities) and corroboration which have been addressed in Grounds No. 1, 2, 3 ' and to a great extent No. 4 above. <sup>I</sup> propose not to repeat them. Let me only add that the findings therein apply equally to Ground

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- /sNo.5 which is just a repetition. Accordingly, Ground No 5 of this appeal fails. - **I o** f7Z. Ground No. 6 has also been addressed in Grounds No. 2 and 3 above. Court maintains the view that although the trial Magistrate erred in holding that the Plaintiffs were leaseholders, when in actual fact, they had only secured a lease offer, the conclusion that the Appellant trespassed on the Plaintiffs' land is correct. The evidence clearly reveals that the Defendant breached the common boundary into the Plaintiffs' portion of land. Even though the Plaintiffs were not registered leaseholders, the boundaries of their land ware clearly marked with survey marks stones, and other natural plants and trees. To that extent, the trial court was justified in dismissing the Appellant's counter-claim. - **15** ^.1 find no merit in the argument that the trial Magistrate did not summarize, analyze or evaluate evidence of the Defendant and his witnesses. There is no legal requirement for court to summarize evidence by parties. As for analyzing and evaluation of evidence, the trial court's judgment speaks for itself, even though the Appellant may not agree with the evaluation or analysis. He needs not to agree. Ground 6 has no merit. It fails. The appeal is entirely dismissed with costs.

Bashaija KrrAndrew **f\*** Judge


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