Mugabi v Gaweera and 5 Others (Civil Appeal 17 of 2021) [2023] UGHCLD 322 (28 September 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION

#### CIVIL APPEAL NO. O17 OF 2O2I

### ARISING FROM NAKASONGOLA CIVIL SUIT NO. OO4 OF 2OI7

MUGABI JACKSON APPELLANT

VERSUS

- 1. GAWEERA GERALD 2. NAKIVUMBI ROSE 3. NABULYA AGNES 4. NAKAMYA FLORENCE 5. BABIRYE ALICE - 6. NAKIWALA

#### JUDGMENT

# BEFORE HON, LADYJUSTICE KANYANGD SUSAN

This is an appeal against thc judgmcnt of His Worship 'lib:ryzrtzr Edgar Tusiime - Magistratc Grade I Nakasongola Court.

The grounds of appeal are;

- i. The learned Trial Magistrate erred in law and fact to hold that the respondents did not admit that thc appe llant was a lawful occupant of the suit land since 1972 - 1l The learned Trial Magistrate errcd in'law and fact whcn hc did not properly scrutinize and evaluate both thc oral and documcntary

RESPONDENTS

evidence adduced on thc suit bcforc linding and holding that thc appellant was a trespasser on thc suit land

- 111 Alternatively the learned Trial Magistratc crred in law and fact to ignore the material conlradictions in thc rcspondcnts plcadings and evidence and hencc rcachcd a wronll conclusions of fact and law - 1V By substituting the evidence of the witncsscs in court with what the learned Trial Magistrate claims to have secn during his inspections of the disputed land, the learned Trial Magistratc erred in law and fact - Alternatively the learned Trial Magistratc did not approach thc visit to the locus judiciously and thus occasioned a miscarriagc of justice to the appellant.

He prayed that the

- a. Appeal be allowed with costs to the appellant - b. Judgment be entercd in favour of thc appellant in Nakasongola Civil Suit No.004/2017 with the rcliefs as praycd in thc plaint

## Background

The plaintiff /appellant Mugabi Jackson sucd thc dcfendants in Nakasongola Magistrate's Court. Hc claimcd that sincc 1972 hc was a legai occupant of a kibanja on land described as Buruli block 206 plot 23 at Kasanga village Katuugo parish Kakoogc sub-county Nakasongola District.

That the defendants from 27 "t July 2017 without his pcrmission cntercd onto the suit land which was in his posscssion.

That as a result of thc said trcspass he incurred loss and damagc. I-lc prayed for declaratory orders, eviction orders, costs, gcncral damages and permanent injunction. ln their defencc thc dclcndants avcrred that the suit kibanja is a family land since 1890s when it was settlcd on by Mubi the father of the late Majara Alexandcr. Majara Alcxandcr produccd latc Augustine Lutaaya and Kavuma who also scttlcd on the land and they produced the defendants.

That the plaintifl is a son o[ latc Kab<tgoza llliasalu who had a neighbouring kibanja to latc Augustinc and Kcvina. Hc by-passcd 3 othcr bibanjas of their siblings to claim interests on their land. Thcy denicd being trespassers and have been an occupation and use of the land they inherited.

The trial Magistratc found that the dcfcndants are not trcspasscrs on thc plaintiff's land and dismissed thc suit ol the plaintilf hcncc this appcal.

#### Representation

The Law Associates Advocates rcprcscntcd thc arppcllants r'vhilc M / s Sibendire Tayebwa & Co. Advocates and M/s Abaine Buregyeya & Co. Advocates jointly represcnted thc respondcnts.

#### Resolution.

The duty of the appellant court was wcll cxemplilied in Kifamunte Henry versus Uganda SCCA No.l of 1997 whcrc iL was hcld lhat thc lirst appellant court has a duty to rcvicw the cvidcncc of thc casc and to considcr thc materials bcforc thc Trial .-ludgc. Thc appellant coLlrt must then makc up its own mind not disrcgarding thc judgmcnt appcalcd from but carelully weighing and considcring it.

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In Father Nanesio Begumisa & three others versus Eric Tiberaga SCCA No.17 of 2OOO l2OO4l KALR 236 ) rclicd on by both counscl, it was hcld that "This bcing a lirst appcal, this court is undcr an obligation to rchcar the casc by subjecting thc cvidcnce presented to thc trial court to a frcsh and exhaustive scrutiny and rcappraisal bcforc coming to its own conclusion.

#### Preliminary objections

Counsel for the respondents raised thrcc preliminary objcctions;

- a. Want of a certified copy of a dccrce - b. Being filed outside prescribcd time and without lcave of court. - c. None service of thc Memorandum of Appcal

Counsel apart from stating them hc did not submit on thcm though counsel for the appellant replicd and submittcd on them. Sincc counscl for the respondents did not elaboratc on his points. I do not iind it necessary to discuss them but will go on thc merits ol thc Appcal.

#### Ground No.1

The learned trial Magistrate erred in law and fact to hold that the respondents did not admit that the appellant was a lawful/ legal occupant of the suit land since 1972.

In his submissions counsel lor thc appcllant submittcd that thc dcfcndant. in the written statemcnt of dclcncc admittcd thc contcnts oi paragraphs 1 and 3 of thc plaint and it settled the legal occupancy of thc appcllant and the court could not arbitrate over thc samc.

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He referred to cases of Kampala District Land Board and Anor versus NHCC SCCA No.2 of 2OO4 and Stanbic Bank (U) Ltd versus Tinka Investments Ltd & 4 others HCCS No.468 of 2013.

In reply the respondents submitted that all purportcd admissions in thc said paragraph were only in rcspect to thc plaintiff's address ol Lhc suit. Further to this that in their introduction thcy statcd save as hcrcin expressly admitted, thc dcfcndant dcnics czrch and cvcry allcgation ol fact as contained in thc plaint as is thc samc wcrc sct. I.\rrth and spccilically traversed scrratum .

That the respondents led cvidencc to show that thcy havc bccn occupation since the 1890s. In para 3(a), (b),(0) of thc writtcn statcment of dclcncc.

The Magistrate in his judgmcnt on pagc 19 statcd that "thc plaintili submitted in his final written submission on pagc 4 thereof that all thc defendants admitted that thc plaintiff has bccn zi lcgal occupant ol the suit land sincc 1972. Thc court scarchcd for thc admission in thc writtcn statement of defence or in thc tcstimonics givcn during thc hcaring of this matter and found no inkling of thc samc.

In the plaint paragraph 1 thc plaintiff statcd his addrcss and addcd "Sincc 1972 he is a legal occupant of a piecc of land (kibanja) on thc land lormcrly describcd as Buruli Block 2O6 plot 23 at Kasanga villagc Katuugo parish Kakooge sub county Nakasongola District.

In their written statement of defence the dcfcndants in para. I statcd that without prejudice to thc lorgoing thc dcfcr-rdants admit thc contcnts ol paragraphs 1, 2 and 3 ol thc plaint. Whilc in 3(b) thcy avcrrcd that thc latc Mubi the father of the latcr Majara Alcxa.ndcr scttlcd and occupii:d kibanja at Kasanga including thc suit kibanja in l il9Os produccd childrcn thereof including Majara Alexander who dicd in 1950s.

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Under Order 6 Rule B of the Civil Procedure Rules it providcs that, it shall not be sufficient for a defendant in his or hcr writtcn statement to deny generally the grounds allegcd by the statemcnt of claim or for the plaintiil in his or her written statement in reply, to dcny gcncrally thc grounds alleged in a defencc by way of counter claim but cach party must dcal specilically with each allegation of fact ol which he or shc docs not admit the truth except damages.

In the case of Ssenyonjo versus Bunjo civil suit No. 18O of 2OL2 (2O13) UG HCCD 1271241. Thc court hcld that an admission has to bc clcar and unambiguous and must statc prcciscly what is bcing admittcd.

in instant case, I lind that though thc dcfcndants admittcd paragraph 1,2, and 3 but, in thcir introduction thcy statcd and dcnicd evcry lact. 'lhcy wcnt ahead in paragraph 3(b), and statcd when their claim arosc as occupants in 1890's. Counsel for the plaintiff/ appcllant ought to havc rcad the whole Written statemcnt of defcncc. The admissions of paragraph 1 ,2,3 were gcneral but the dcfcndants spccilically dcnicd thc lcgal occupancy of the plaintiff in their defcncc in paragraphs 3(b).

I thereby find that thc tria1 magistrate did not cre in law and fact to hold the respondents did not admit that thc appellant was a lcgal occupant of the suit land since 1972.

#### Grounds 2 and 3

2- The learned Trial Magistrate erred in law and fact when he did not properly scrutinize and evaluate both the oral and documentary evidence adduced in the suit before finding and holding that the appellant was a trespasser on the suit land.

3 - Alternatively the learned Trial Magistrate erred in law and fact to ignore the material contradictions in the respondent's pleadings and evidence and hence reached wrong conclusions of fact and law.

Trespass to land was dcfincd in the case ol Justine EMN Lutaaya versus Stirling Civil Engineering Co. Ltd SCCA No. 11 of 2022 a\s<t rclicd on by counscl for appcllant "Whcn a pcrson makcs unauthorized cntry upon land and thereby interferes or pretends to intcrlcrc with anothcr pcrson lawful possession of that land, nccdlcss to say thc tort oI trcspass to land is committcd not against the land but against thc pcrson who is in actual or constructive possession ol thc land.

Court in that casc also addcd that thc tort is committcd not against thc iand but against a person who is in actual or constructivc posscssion of thc land. In Sheik Muhammed Lubowa versus Kitara Enterprises Ltd CA No.4 of 1987 the court noted that "ln ordcr to provc thc allcgcd trespass, it was incumbent on thc appcllant to provc that thc disputcd land belonged to him, that thc rcspondcnt had cntcrcd upon th:rt land and that the cntry was unlawful in that it was madc without his pcrmission or that the rcspondcnt had no claim or right or intcrcst in thc land.

Whilc the law of contradictions and is that whcrc gravc inconsistcncc occur thc cvidcncc may be rejcctcd unlcss satislactory cxplaincd ra,hilc minor inconsistences may havc no advcrsc cflcct on thc tcstimony unlcss it points to deliberate untruthfulncss. Scc casc ol Uganda versus Abdallah Nassur 1982 HCB.

PWl- Mugabi Jackson thc plaintill tcstilicd that hc has bccn in possession of a kibanja sincc 1972 which formcrly bclongcd to his latc

father Kabogoza Eliasafu. That it is scparatcd by a road lrom thc latc Augustine Lutaaya's kibanja ,but in 2015 hc was sucd by Mr. Senyange for criminal trespass and was acquittcd. On thc 2 l "t .luly 201 7 thc I "' defendant and the rcst of thc dclcndants forcclully cntcrcd into his kibanja which he had cleared for planting and damagcd his boundary fcncc. Hc reported to the LC Chairman. Thc Combolola Agriculturc Ollicer asse sscd what was damaged. That therc is no kibanja in Kasanga lormcrly jointly owned by Lutaaya and Namandc.

PW2- Andama Charles Ajune asscsscd thc damagc and lound thc cxtcnt of damages valued at Shs.5,500,000/:

PW3- Kayendeke Grace a grand child of Bbosa testilicd thal lhe plaintill came looking for thc rclativcs ol thc late Christophcr llbosa.

That the late Christopher was thc rcgistcrcd owncr of thc land describcd as Buruli Block 206 plot 23 at Kasanga on which thc plaintiff's kibanja is situate. That Scnyonga is currently thc rcgistcrcd proprictor ol the land as hc changed registration. That hc owns a kibanja on thc land and had sued the plaintiff for trcspass but hc u,as acquittcd.

PW4- Magunda Milly testificd that thc dcfendants startcd trcspassing on the land on 21-O7 2017 and, planted cassava and matookc. That it is thc same land Scnyonga had claimcd againsl thc plaintill and hc was acquitted. That hc was a witncss in that criminal casc and that Mugabi was in posscssion of the land.

PWS- Namugga Rebecca a sistcr to thc plaintifl tcstilicd that thc plaintill is residing on thc kibanja of thcir latc fathcr Kabog<tza llriasafu, and Lutaaya Augustine was a neighbor. 'l'hat on 21 07 -2o17thc dclcndants entered onto the gardcn of thc plaintifi. That shc had tcstilicd in his favour in the criminal casc and he won. Hc had lcnccd oll thc land in 2OO7. ln 2013 Senyonga and the dcfcndants had tried to subdividc the land but thc plaintiff refused and hc was sued. That Namande had no portion of kibanja at Kasanga.

PW6- Sekatte John arr Agricultural Ollicer visited thc sitc saw thc clcarcd land with cut trces and the plaintiff told him that thc dclendants had caused loss. Hc took photographs in August 2017 and madc his report on 08-08-20i7. That the estimated loss was about Shs.5,180,000/:. The court struck off his report.

DW1 - Gawera Gerald tcstificd that hc is using thc suit land with D2 Nankumbi Rose and D4 Nakamya Florcncc.

That D3 Nabulya Agnes has ncvcr been in occupation. That hc was lcft the suit land by his mother Kcvina Namandc. That Augustinc Lutaaya and Kevina Namande bibanjas wcrc neighbouring onc Kabogoza thc fathcr of the plaintiff and separatcd by a road. Fle dcnicd bcing a trcspasscr and that thc kibanja is on mailo land of Senyonga.

DW2- Nakivumbi Rose also testificd that shc is utilizing the suit kibanja for grazing cattle and it was given to hcr by l-utaaya Augustinc thc fathcr. That in 2017 plaintilf and D lwcrc disputing ovcr Lhc suit land, and th:rt she had a disputc with plaintilf in 2015 whcn thc plaintiil and Scnyonga arrested her.

DW3- Babirye Alice a daughtcr of Augustine Lutaaya tcstilicd that shc has ncver occupicd the suit land but that fathcr's land was scparatcd by a road with that of a ncighbor Kabogoza. That thc land docs not rcach thc fence of the forest of NFA. That thc plaintifl crosscd thc road and plantcd orukoni in Lutaaya's lilc timc and aftcr his death. In cross-cxamination

she said shc uscd to cultivate on thc suit land, but thc plaintilf scnt cows that ate her crops so she stopped.

DW4- Nakiwala Margret also testilicd that shc has no intcrcst in thc disputed land and that sincc she was born, it is occupied by thc I st , f n'r and 4th defendants. In cross-cxamination she tcstilicd thc D I plantcd a cassava gardcn there about 2 ycars ago and that hc iound thc plaintill and Dl quarrcling .

DW5-Semanda Richard a ncighbor to thc suit land testilicd that thc plaintifl is occupying the land olhis lathcr Kabogoza and Dl is occupying land of Augustine Lutaaya. That bcforc it was Lutaaya Augustinc utilizing the land and that the plaintilf has ncvcr carricd out any activity on thc land. That thc kibanja of Kabogoza and Lutaaya has a road marking thc boundary.

DW6- Henry Sebowa testiiicd that hc knew kibanja ol Kabogoza Ilriasalu and late Augustine Lutaaya at Kasanga. ThaL in 19BO hc cut down 3 Mivule trecs on thc suit kibanja which hc bought from Augustinc Lutaaya. That a smal1 road separatcs the bibanjas of Kabogoza and Lutaaya. That it is not true kibanja was for Kabogoza Eriasalu.

DW7- Nakamya Florence a daughter of Augustinc Lutaaya tcstiiicd that disputed kibanja was givcn to Scjjcmba Hannington and shc has nrr interest in it.

DW8- Nabulya Agnes also tcstified shc has no intcrcst in suit kibanja as hers is 2km away.

DW9- Sembuze William testificd that he is a brothcr to the late Kabogoza Eriasafu. That land in dispute was from thc latc Augustine Lutaaya and he distributed portion to Nakamya and Nakivumbi and they started utilizing it. That a road separates Kabogoza and Lutaaya's 1and. Furthcr to this that he left his grass thatched housc to Muganga who also lelt it to Semanda and late r it was occupie d by the plaintill Mugabi who dcmolishcd it and put a permanent house.

That area claimed by Mugabi does not bclong the latc Kabogoza but it was for Augustine Lutaaya.

In his judgment the trial Magistratc relying on cvidencc ol DW9 thc brother of Kabogoza found that the boundary mark ,a road cxisted on thc portion pointed out by DW9 which now containcd a lcnce and was separating the land claimed by onc Semanda and thc plaintiff. 'lhat this evidence makes it more likely than not that the suit land is the propcrty ol the 1"t, 3rd and 4th de fendants than it is likely to bc thc propcrty ol thc plaintiff. That the plaintiff went beyond thc boundary of thc kibanja ol Kabogoza and entered onto Augustinc Lutaaya's kibanja. Thus hc is a trespasser. Hc also found thc dcfcndants wcrc not trcspasscrs on thc plaintiff's land.

Counsel for the appellant submitted that it was thc appellant in possesston before 2017, had clearcd thc land to plant when thc rcspondents cntcrcd onto the land. That furthcr to this thc rcspondcnts departcd lrom thcir plcadings where thcy ciaimed that, therc wcrc al1 in occupation whcreas not. He mentioned dillerent contradictions in thcir cvidcnce and that the trial Magistrate wrongly evaluatcd the evidencc.

While counsel for thc respondcnts submitted that cvcn if it wcrc truc thc respondent was in occupation of thc suit land by 2017 thc same occupation was not lawful as hc was a trcspasser. Furthcr to this that hc does not fall under thc ambit ol S.29 ol thc Land Act that defincs a lawful occupant.

That counsel does not point out where thc contradictions on the respondent's case arise, and it is true that minor contradictions must bc ignored as long as they do not go to the root of thc disputc. Counscl furthcr submittcd that no evidence was'lcd to provc PWI plantcd the orukoni and some was old and not pianted in 2017.

When I analyse the evidcncc I find that Dl G aln,cra Gcrald (DW1 ), and D2 Nakivumbi Rosc (DW2) arc thc oncs using thc suit land in disputc. Though D 1 Gawera said D4 Nakamya Florcnce is also utilizing thc land, shc dcnicd this saying she had no interest in the suit land. DW 1 Gawcra said thcy cultivate on a portion and the rest is for graz,ing. At the locus in quo visit, the trial magistrate observed that the suit land is bushy with no sign ol any activity being carried on but lemon claimcd to havc bccn plantcd by plaintiff or 1"t defendants deceascd brother Tcbusulwa.

Thc Appellant testificd hc u,as in posscssion of Lhc land until dclcndzrnts trcspassed on it on 2I "t Ju'ly 2O17. Dw1 Gar'r'cra claimcd hc rcterincd kibanja in 1978 altcr his mothcr Namandc Kcvin:r lclt it with him and that by the timc Lutaaya dicd hc was in occupation of thc l(ibanja. Whilc DW2 Nakivumbi Rose claims to havc got about 4 acrcs from Lutaaya.

Its apparent from the cvidence that therc wcrc two bibanjas onc of Augustine Lutaaya and onc of Namandc Kcvina who was a sistcr to Lutaaya. The appellant and Dw1 Gawera arc scttlcd on some portions of

land of their respective fathers which are not in disputc. DW3 Babirye Alicc admits that plaintifl/ appcllant was planting Orukoni on the disputcd kibanja in the life time of Lutaaya. This confirms appcllants evidcncc that he was on the suit land before 20 17. DW3 also testified that D1 put a garden on the suit land about 2 years ago. I agrce with counscl for thc appellant that there arc contradictions in thc dclcncc case, which land is D1 actually occupying. Is it ol Namandc Kcvina or Augustinc Lutaaya. While he says it's for Namandc Kevina, DW5 Scmanda Richard says hc is occupying Lutaaya Augustinc's land. DWT Nakamya Florcncc says thc specific piece of his father's kibanja in disputc was givcn to Sejjcmba Hannington and shc has no interest in it. While DW9 Scmbuza William testified that Lutaaya Augustinc distributcd that land to his daughtcrs Nakamya and Nakivumbi. DW9 is thc witncss thc trial Magistrate mentioned as a material witness since he was et brother to Kabogozza. Hc could only point out portions given to Sejemba and Scntalo in Lutaaya's life time, but not other portions. Thc magistratc ought to havc lookcd at thc cvidcncc in totality.

These contradictions arc major as thc trial magistratc bascd his dcctston on the boundary mark separating Kabogoza's land and Lutaaya's land. What about the boundary mark scparating Namandc's Kcvina's kibanja from either Lutaaya's land or Kabogozas kibanja.

The appcllant was charged in NA 001CR 2851 201.5 for trcspass to land. The complainant was Senyonga Briasafu and on that land Senyonga neighbours werc Mr Gaweera Dl,Mr Bantana and Semayobc and David Kyeyunc, Senyonga claimed he had disputcd ovcr Lhc samc land with Nakivumbi D2 and won thc casc. PW2 Mugcrc Sunday sa'id land was ncar forest and accused was occupying it. ln thc Skctch plan by Magistratc neighbours shown on disputcd plot were Gawcra and Scnyonga . Somr:

sides no neighbours were shown. Thc accuscd appellant was acquittcd of trespass.

I believe this was the same piece of land in the prescnt suit which Senyonga was disputing with Nakivumbi and it was proved in that casc in 20 1 5 that appellant was in possession

Since plaintiff/ appellant was the one in posscssion of thc land bclorc 20 1 7 having planted there Orukoni and sincc thc dclcndants'/ respondcnts evidence has contradictions, I find that it's the dclcndants/ rcspondents who entered into land in possession of anothcr and they arc trcspasscrs. The trial magistratc thus ignored thc contradictions and errcd in holding that the plaintilf was the trespasscr.

Grounds 2 and 3 thus succced.

## Grounds 4 and 5

4- By substituting the evidence of the witnesses in with what the learned trial Magistrate claims to have seen during his inspection of the disputed land, the learned trial Magistrate erred in law and fact.

5- Alternatively the learned trial Magistrate did not approach the visit to the locus judiciously and thus occasioned a rniscarriage ofjustice. Practicc Dircctor No I ol 2OO7 providcs for proc<:durc rn,hich counLs courts follow at locus in quo. It statcs that whilc thcrc, court is to;

- l. Ensurc that all thc parties, thcir witncss and advocatcs il any art: prescnt - 2. Allow the parties and thcir witnesses to adduce evidcncc at the locus in quo - 3. Allow cross-cxamination by cither parly or his counscl

- 4. Record all the procccdings at thc locus in quo - 5. Record any observation, vicw, opinion, or conclusion ol thc court include drawing a sketch map if ncccssary.

The purposc ol visiting locus in quo is to clari[,y on thc cvidcncc in court and to cnablc thc court undcrstand thc r.'vidcnc<:. Scc casc of Odongo Ochama Hussein Abdul versus Rajab civil appeal No. 119 of 2O18 l2O2Ll. The visit to locus in quo is also intcndcd to harncss thc physical aspects of the cvidcnce in convcying and cnhancing thc mcaning of oral tcstimony. Sec casc of Anna Acayo & 4 others versus Lodik Daniel Wareen Gulu civil appeal No.54 of 2017.

In Ahmed Zziwa Ssalongo versus Dr. Kajumba Luyirika civil appeal No.33 of 2Ol2 it was hcld that thc practicc ol visiting thc locus in quo is to chcck on thc evidcncc givcn by thc witncsscs and not 1o lill thc garp lor thcm or court may run thc risk ol mzrking itsclf a ',r,iLncss in thc clrsc.

Counsel for thc appcllant submitted thzrt thc Magistratc crrcd in law to allow whocver was prcscnt to testily at locus without taking oath or to remind them that they took oath. Secondly by conccntrating on or looking for evidcnce of ownership ol thc suit land and boundarics hcncc allowing evidence to bc led at the locus in that rcgard yct thc samc wcre not in issuc at the trial was an error.

In reply counsel for thc rcspondcnts submittcd that therc was no cvidcncc that the Magistratc loilowcd the wrong proccdurc and that partics confirmed what thcy had stated in court. That at thc locus in quo thc trial Magistrate did cverything humanly possiblc to rcsolvc the vital cvidcntial gap including drawing a sketch plan.

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The locus visit was conductcd on 25r11 October 202O. Counscl lor thc appellant was not prescnt but that if thc rcspondcnts was prcsent. On record it does not show that thc witncsscs took Oath or wcrc rcmindcd of the of the Oath.

In the casc of Turyalikayo James and 2 others versus Ruremire Denis Kabale highcourt Civil Appeal no 83 of 2OO9, it was held that irregularity in receiving evidence at thc locus in quo docs not pcr sc render the proceedings a nullity providcd that, thc judicizrl ofliccr, can make an cffectivc practicable and workablc dccision that rcsolvcs thc con flict on the mcrits.

I find that there was an error not to swcar witnesses or rcmind them oi the oath at the locus in quo but it did not affcct thc procccdings. Thc trial magistrate conccntratcd on evidence of witncsscs at the locus in quo ernd also drew a sketch plan. He made a dccision bascd on his finding both at the locus in quo and the evidence.

Grounds 4 and 5 thus fail.

In conclusion Grounds 1,4,5 fail but grounds 2 and 3 on cvaluation of evidence succe eds. The Appcal partly succccds with thc following ordcrs,

- a) The prayers in the plaint in civil suit no OO4 12017 arc granted to the appellant. - b) The respondents to pay costs of thc Appcal.

ri-. )\$ DA\/ OF \_ \_'=\_,\_ 1\_,, DATED AT KAMPALA THIS \_ \_ \_ \_ \_2c.23

KAI{YANGE SUSAN AG JUDGE LAND DIVISION