Mrs Kayanja and Others v Kiggundu (Civil Appeal No. 39 of 2018) [2023] UGHCLD 36 (20 February 2023)

## THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 39 OF 2018

(ARTSTNG OUT OF CtVtL SU|T NO. 39 OF 2011 rN THE CHTEF MAGTSTRATES COURT OF NABWERU AT NABWERU)

- 1. MRS. KAYANJA <sup>K</sup> - 2. WALAKIRA PATRICK - 3. BUGEMBE EMMANUEL::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS

#### VERSUS

KIGGUNDU GERALD:::::::::::::::::::1::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

### JUDGMENT

The said appellants having been dissatisfied with the Judgment and orders of the trial court in the said case delivered on the 18th January 2018 now appeal to this Court on the following grounds:

- 1. That the trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to the conclusion that the dispute was not about ownership but a boundary dispute. - 2. That the trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record and came to the conclusion that the respondent did not trespass on the appellant's la nd. - 3. That the trial magistrate erred in law and fact when she failed to subject the entire evidence on record to a thorough and exhaustive scrutiny and hence reached an erroneous decision of dismissing the suit with costs to the defenda nt. - 4. That the trial magistrate erred in law and fact when she proceeded to dismiss Miscellaneous Application No. 231 of 2Ol7 on the ground that it was overtaken by events without hearing the same.

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The appellant is now seeking for the following remedies:

- i. That the appeal be allowed. - ii. That the judgment and orders of the trial court be set aside and /or quashed. - iii. That the costs of the appeal be provided for.

# BACKGROUND

The appellants/Plaintiffs instituted the said suit against the respondent /defendant seeking for declaratory orders that they were the rightful owners of the suit kibanja, they were also seeking for compensation to the tune of eight million shillings (8,000,000/=), a permanent injunction restraining the defendant from trespassing on the suit kibanja.

The defendant claimed that he was the son of Late Mukasa Yekoyasi who owned land comprised in Kyadondo Plot 103 currently Plot2404 Block 195 situate at Sabaddu Sub-County Mengo at Kyanja. That since his father died he had been using the suit land for agricultural purposes and caretaking the same on behalf of the other beneficiaries. He claimed that the Plaintiffs had in 2011 trespassed on the suit land and that he was the rightful owner of the suit land.

After analysing the evidence that was adduced by the parties, the trial magistrate held that the Plaintiff had failed to prove their case against the defendant and dismissed the case with costs to the defendant.

Counsel for the appellants and counsel for the respondent then filed written submissions the details of which are on record and which I have considered in determining th is a ppea l.

## Preliminary Obiections

The Respondent raised a preliminary objection to the effect that the appellants filed a supplementary record of appeal and that it was illegal and ought to be struck off with costs. Counsel contended that upon lodgement of <sup>a</sup> Memorandum of Appeal, it was the duty of the Court to send a notice to the Magistrate's Court which in turn would send all the papers as may be specifically called for as provided for under Order 43 Rules 10(1) and (2) of the Civil Procedure Rules.

The appellants never responded to this preliminary objection.

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## Decision of Court on Preliminarv Obiection

Order XLlll Rule 10 of the Civil Procedure Rules provides that;

- (1)When a memorandum of oppeal is lodged, the High Court sholl send notice of the appeol to the court from whose decree the appeal is preferred, - (2)The court receiving the notice sholl send with oll procticoble dispatch all material papers in the suit, or such pdpers os moy be speciolly colled for by the High Court. - (3) Either party moy opply in writing to the court from whose decree the oppeol is preferred, specifying ony of the popers of the court of which he or she requires copies to be made; ond the copies shall be mode at the expense of, ond given to, the opplicant on poyment of the requisite chorges."

It is true that the supplementary record of appeal was not certified by the Court which it purported to originate from and hence its authenticity is doubted.

Section 60 of the Evidence Act Cap 6 provides lhat "The contents of documents moy be proved either by primory or by secondary evidence."

Section 52 ofthe Evidence Act Cap 6 provides that Secondary evidence means and includes-

- a) Certified copies given under the provisions hereafter contoined; - b) Copies mode from the original by mechanicol processes which in themselves ensure the occurocy of the copy , the copies compored with those copies; - c) Copies mode from or compored with the originol; - d) Counterparts of documents as agoinst the parties who did not execute them; - e) Orol occounts of the contents of a document given by some person who has himself or herself seen it."

The supplementary record does not fall within the ambit of Section 62 of the Evidence Act Cap 6 and hence is inadmissible.

The record of appeal was equally not certified and hence its authenticity is ellant to ensure that the record f the equally doubted. lt is the duty of the app

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lower court is properly certified before it is submitted to the High Court for <sup>a</sup>ppea I pu rposes.

The entire appeal willtherefore be struck out with costs on grounds that the lower court record was not certified.

The preliminary objection to that effect is therefore upheld.

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Hon. Ju ce John Eud s Ke nma

20lO2l2023