Munghenghe & Another v Nasinyagha & 2 Others (Civil Appeal 101 of 2021) [2024] UGHC 274 (6 May 2024)

Full Case Text

### **REPUBLIC OF UGANDA**

## IN THE HIGH COURT OF UGANDA AT HOLDEN AT MBALE

### CIVIL APPEAL NO.0101 OF 2021

# (Arising From Pallisa Civil Suit No.0063 of 2012)

### 1. MUNGHENGHE ROBERT

**::::::::::::::::::: APPELLANTS** 2. MUWUGUMYA KOTILIDA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. NASINYANGHA DAVID - 2 KANENE ABDALLAH - 3. **ZYIYAWE SILVER ::::::::::::::::::::::::::::::::::::**

## BEFORE HON. JUSTICE LUBEGA FAROUQ

### **JUDGMENT**

### 1. Introduction:

2. The Plaintiffs/ Plaintiffs sued the Defendants/ Respondents for vacant possession, permanent injunction, costs of the suit and any other relief court may deem fit.

# 3. The Appellant's brief facts in the trial court were;

4. That the 1st Appellant is a son of late Mungheghe Lawerence who died on $24^{th}/05/1998$ when the 1st Appellant was still young and he was appointed the heir to the estate of his late father. That the $2^{nd}$ Appellant is a widow, a wife of the late Mungheghe Lawerence and a mother to the 1st Plaintiff. That the Late Mungheghe Lawerence left one widow and 8 children the 1st Appellant inclusive. However, the Respondents entered upon the suit land in 2009 without the consent of the Appellants and have now settled therein without any colour of right.

### 5. Respondents' brief facts in the trial court;

6. The Respondents' according to the written statement of defence denied all the Appellant's claims and averred that they are lawful owners of the suit land having purchased the same from Talya Umaru and Mughenghe Wamubirigwe Ibrahim and Moses Tulya in 2008, took possession without interruption and they have enjoying quiet possession of the same since 2008.

### 7. The trial court's findings

8. The trial magistrate found the matter in favour of the Respondents hence, Civil Appeal No. 0063 of 2014. In the appeal judgment which was delivered on 30th of June, 2015, His Lordship Henry I. Kawesa found that-

> "the trial magistrate failed to properly evaluate the evidence before him as there were grave inconsistencies in the defence case and failed to properly assess the Plaintiff's evidence which was consistent and reliable, failed to conduct proceedings at locus, thereby making wrong conclusions. The sum total is that the learned trial magistrate reached a *wrong decision. The decision reached is not supported by the evidence* on record."

- 9. Following that background, court ordered that; "the orders and the judgment of the lower court be set aside and there be an immediate retrial of this matter *before another competent magistrate, preferably the Chief Magistrate Pallisa.*" - The matter was indeed sent back for a retrial and the same was handled 10. by Her Worship Nanteza Zulaika (Chief Magistrate)

#### 11. The issues for trial court's resolution

- 12. The issues for the trial court's resolution were; - (a) Who owns the disputed land? - (b) Whether the defendants have trespassed? - (c) Remedies available to the parties? - The trial magistrate resolved the above issues in favour of the 13. Respondents. The Appellants being aggrieved with that decision, appealed to this court on the following grounds.

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#### 14. Grounds of appeal

- (a) The learned trial magistrate erred in law and in fact when she found and held that the Plaintiffs (now Appellants) failed to prove ownership of the suit land; - (b) The learned trial magistrate erred in law and in fact when she found and held that the Appellants failed to prove that the defendants (now Respondents) trespassed on their land; - (c) The learned trial magistrate erred in law and in fact when she found and held that the Appellants are not entitled to any remedies sought before this court; - (d) The learned trial magistrate erred in law and in fact when she failed or refused to award the appellants general damages for trespass to the suit land, among other things; - (e) The learned trial magistrate erred in law and in fact when she failed or refused to award the appellants mesne profits; - (f) The learned trial magistrate erred in law and in fact when she failed in her duty as a trial court to properly and or adequately evaluate the evidence on record; - (g) The learned trial magistrate's judgment is riddled with fundamental misdirection and or non-directions in law and in fact; - (h) The learned trial magistrate erred in law and in fact when she held or conducted the proceedings at the locus in quo contrary to the established judicial decisions binding on her, procedure and practices; - (i) The decisions complained against has occasioned a substantial miscarriage of justice. - The Appellants prayed that the appeal be allowed, that the judgment and 15. decision or orders of the court below be set aside, and that judgment be given here and in the court below for the appellants as pleaded and that the appellants be granted costs here and in the court below.

#### 16. Legal representation

17. Counsel Kasaijja Robert represented the Appellants while Counsel Gawaya Tegule appeared for Respondents.

#### 18. **Submissions**

19. At the hearing of this appeal, both counsel were given schedules to file their respective written submissions and they are on court record. I will refer to them as and when necessary.

#### 20. Duty of the first appellate court

Being the first appellate court, I am under a duty to evaluate all the evidence on the court record without isolation and come to my own independent decision not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over ruling it if on full consideration, the court comes to the conclusion that the judgment is wrong. See: Fr. M. Begumisa & Ors Vs E. Tibegana SCCA No. 17 of 2003.

21. I will handle grounds a, b & f together and the rest will be resolved separately.

#### $22.$ The trial courts evidence

- 23. **PW1 Mughenghe Cotilda** said "I have sued the Defendants because they trespassed on my land which I was using. The land my husband died and left me in that piece of land with my children. My husband (late Munghege Lawrence) acquired/ inherited the suit land from his father (Ntuyo Bonifanciyo). I married Mungheghe in 1986 and it was my husband and his mother who were using the piece of land. The Defendants have trespassed on the large portion of land and left me with only the homestead where I am staying...my husband had two sisters but they never acquired a share of land of their father's estate. - 24. In cross-examination PW1 said; "my husband passed away in 1998. I don't know when Ntuyo died, I found when he had died......when the Defendants trespassed, and I reported to government authorities..... My mother in law died after my husband's death. I was looking after her."

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- PW2 Odeke Steohen aged 78 years said; "I know the Plaintiffs. Know the 25. 1st Plaintiff. We are neighbors on a piece of land.... this land belonged to Ntuyo Boniface. I don't know how he acquired the land but he never sold any piece of that land to anybody. Ntuyo had 5 children i.e 4 boys and 3 girls..... All the children of Ntuuyo have died save for two surviving daughters. The estimate of Ntuyo's land is about 20 acres and above." - In cross-examination he said; "Ntuyo's land was $\quad\text{in}\quad$ 26. one same block/together." - **PW3 Mungheghe Robert** aged 25 years said; "I have sued the Defendants 27. because they trespassed and occupied my piece of land which I inherited from my late father (Lawrence Munghenghe). I inherited the suit land on 28th May 1998.... my mother and grandmother told me the land is approximately 33 acres.... I cannot tell with certainity the exact size of the land that the Defendants have trespassed upon." - In cross-examination PW3 said; "I saw the agreements that indicated that 28. the Defendants purchased the piece of land from Umar Talya but o don't Talya." - **PW4 Boniface Ntuyo** said; "the Defendants are trying to grab land from 29. my step mother. The $2^{nd}$ Plaintiff acquired the suit land from her husband. The suit land is about 30 acres. It is used for cultivation.... there are minutes of the clan meeting where the suit land was bequeathed to the Plaintiffs. The clan meeting took place in 2008. Lawrence left behind this disputed piece of land and 2 grass thatched houses...." - PW5 Kanyago Nanzelena aged 73 years said; "I am paternal Aunt to the 30. $1$ st Plaintiff and the 2nd Plaintiff is my sister in law. I know the 2 Defendants. They are my neighbors... the suit land belongs to my father (late Borniface Ntuyo) who also inherited it from his father. Ntuuyo is the grandfather of the 1st Plaintiff. The 1st and 2nd Plaintiff inherited the suit land. I do not know the Defendants acquired the suit land.

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#### 31. **Defence Evidence**

- 32. **DW1 Wabale James** aged 50 years told court; "... the stamp on that document is not our stamp, at that time we were using RC1 and not LC1 ..... I was not part of the meeting of 24 of May, 1998... this is a forged letter, the letter which I signed had RC.... I was present when the land was sold to the Defendants as the LC.1 chairperson.... the sellers had powers to sell that land because the land was for their late father called Koile - 33. **In cross-examination DW1** said; "Talya Umar and Munghenghe were the sellers of the land. They are sons of Koile. The sold to the Defendants..... I know the sellers and their father died in 1981 when I was present." - $34.$ DW2 Muswa Abdal Karid aged 56 years said; "I know the Defendants when they bought the land I was present. I was certain the sellers had authority to sell. They were residents of the area but they later migrated to Buganda and they entrusted the land to Margaret Naula...... previous in inheritance ceremonies we were not using the stamp of L. C. We did not stamp on that document." - 35. DW3 Edirisa Kulaka aged 65 years said; "I am from Mulinda Clan and I am the one who installs heirs.... we installed Robert Mungheghe when Munghenghe Lawrence died. i was part of this ceremony. There was a document written that day and I signed it. There was secretary who wrote but I have forgotten the name.... I know Wabale James as LC.1 Chairperson - 36. **DW4 Hajji Muslimu Wamubirigwe** aged 87 said; "I know both Plaintiffs. The $2^{nd}$ Plaintiff is my daughter in law, wife to my son Lawrence Munghenghe. The 1st Plaintiff is my grandson. I bought the land in 1092 from Talya Lawrence... I entrusted the land to Karoli's son but he also died... Lawrence Mungheghenge died and he was not buried in the land because it is not his land. From the 7 acres, I removed 2 acres and gave Moses. The five acres I gave to the $2^{nd}$ Plaintiff. I know Peter Koile, he died and I inherited him. He had a wife, children and 2 pieces of land... I handed Peter Koile's land to Margaret.... i inherited 7 acres."

- 37. DW4 however later contradicted himself when he said that; "I handed Umaru Talya their late father's land and he handed it to his sister Margaret to cultivate. - DW4 further said that; "the 2nd Plaintiff effused Margaret to cultivate so 38. Talya asked me to allow him to sell the land and I allowed him..... All the 14 acres are not in my hands now, not mine anymore - DW5 Margaret Naula aged 56 said; "The land belonged to Koile Peter who 39. was my paternal uncle, he died and the heir was muslim Wamubirigwe who entrusted me with the land in the young children waited to grow up. I am nolonger the caretaker, the land was handed to the orphans by Muslimu Wamubirigwe in 2007 in the presence of elders, LCs and Clan members - She said that the $2^{nd}$ Plaintiff uprooted boundary marks planted by Talya 40. and Ibrahim but the clan planted them back. Umar Talya and the brother sold the land to Silvester Zyiawe and Abdalla Kanene - 41. **DW6 Talya Umaru** was just given the land as his father's inheritance so, he is not expected to know much about its history. - DW7 Waweyo Emmanuel's only rotated around the sale of the suit land 42. to the Defendants when he acted as the secretary. - DW8 Talya Moses aged 35 years said; "... my grandfather called Hajji 43. Wamubirigwe Musilimu gave me a piece of land which I sold to attend the institute... I sold it to one David Nasinyanga at 1, 4000, 000/=. I sold the land on $31/10/2008$ - In cross-examination DW8 said; "the land I received from my grandfather 44. Hajji Musilimu was Musilim's land as his. It is not what my father owned. Muslimu and Benefansio are brothers. They are both my grandfather's. Donosio Talya is the one who sold the land to Musilimu in 1983. The same person who gave me the land is the same who gave to the Plaintiffs.

## 45. Analysis of the above evidence by court

46. From the above evidence, it is noted that all the Appellants witnesses told court that the suit land was initially for late Ntuyo Bonifanciyo the father of late Munghenghe Lawrence (the $2^{nd}$ Appellant's husband and the $1^{st}$

Appellant's father) which he owned exclusively and it was not divided. The Appellants' witnesses' especiary PW2 said that Ntuyo Bonofanciyo never sold any piece of that land to anybody.

- 47. PW1 told court that she got married to late Munghenghe Lawrence in 1986 and found him using the suit land and after she joined him, they continued to use the same without any interruption until 2008 after the death of her late husband and her mother in law. - 48. DW4 who seemed to have some bit of history concerning the suit land, contradicted himself. He told court that he purchased the suit land from a one Tulya in 1982 and then later said he inherited the suit land from Peter Koile but he did not tell court the relationship he had with Peter Koile. DW4 further did not clarify to court why since 1986, none of Peter Koile's family members ever used the suit land and secondly, why himself as the purchaser of the suit land did not use the same since 1986 to 2008. - 49. It is also not clear to this court why since 1981 when Koile Peter died, his land was only divided among his children after the death Munghenghe Lawrence in 2008. If the suit land indeed belonged to Koile Peter, this court would have expected the division of the same among his children to have been done during the life late Munghenghe Lawrence who was using the suit land. - 50. PW4 told court that there are minutes of the clan meeting where the suit land was bequeathed to the Appellants. However, although the minutes were contested by DW1 and DW2 to be forged, DW3 admitted that the 1st Appellant was installed as late Munghenghe Lawrence's heir and he was part of the ceremony. He added that there was a document that was written on that day and he signed it. Therefore, what is not contested is that there was a document which was written. - 51. It is also further noted that the Appellants properly indicated in their evidence that they do not know how to read. Following that evidence, this court wonders how people who did not know how to read could forge a document.

Section 103 of the Evidence Act Cap 6 provides that-52.

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

53. In Interfreight Fowarders (U) Ltd V EADB Civil Appeal 33 of 1993 (SC) Justice Order (JSC as he then was) held that;

> "...a party is expected and is bound to prove the case as alleged by him and as covered in the issues framed........"

- In Supreme Court Civil Appeal No. 08 of 2018 Kamo Enterprises 54. **Limited V. Krystalline Salt Limited** Justice Mwondha while citing Cross v. Tepper on Evidence 8th edition at page 121...... In Civil cases the burden of proof is on the balance of probabilities. While citing Phipson Law of Evidence 14th edition the judge further stated that the evidential burden of proof is burden of adducing evidence to prove a fact in one's favour. - In the instant case, the Appellants gave a coherent history of how they 55. acquired the land and secondly, how they have been in possession of the same since 1986 without interruption. The Respondents however failed to show court how they came to own the suit land and secondly, why they have not been using the same since 1986 if it ever belonged to them. - It was their duty to prove that the suit land is their land which obligation 56. they failed to dispose. - In Halling Manzoor V. Serwan Singh Baram SCCA NO. 09 of 2001, 57. Justice Mulenga (RIP) stated that-

"Having ruled that the defendant had not repossessed his legal interest in the suit properties at the time he purported to sell the same to the plaintiff on 1.4. 94\_ (sic) the plaintiff could not have acquired

## an equitable interest to entitle him in this case to specific performance. *It would not be available to him."*

- 58. In the present case, the vendors of the Respondents having failed to prove how their late father Koile Peter acquired the suit land, they accordingly failed to prove their interests in the suit land. It follows therefore that, they could not pass on interests in the land to the Respondents which they did not have. - 59. DW4 further gave a piece of land to DW8 Tulya Moses. However as indicated in the body of this judgment, DW4 failed to prove to court how he came to own the suit land since his evidence was tainted with contradictions that go to the root of the matter. Having failed to prove ownership, he could not pass on the same to another person without sufficient interests. - 60. Therefore, the Respondents having purchased the suit land from the people with no interests, they also did not acquire any interests in the suit land and for that reason, they are trespassers on the suit land. - 61. In the final result, it is found that the trial magistrate failed to evaluate the evidence on the court record and came to a wrong conclusion. - 62. In the view of the above, grounds a, b, & f are answered in the affirmative. - 63. Ground c: The learned trial magistrate erred in law and in fact when she found and held that the appellants are not entitled to any remedies sought; - 64. Having resolved grounds a, d, and f in the affirmative, then ground c is automatically answered in the affirmative since there is no way a successful party would not be granted any of the remedies sought. - 65. Ground d: The learned trial magistrate erred in law and in fact when she failed or refused to award the appellants general damages for trespass to the suit land, among other things; - 66. It is trite law that the award of general damages is at the discretion of Court. See Crown Beverages Ltd Vs Sendu Edward Supreme Court Civil Appeal. No.01 of 2005.

- This court cannot therefore fault the trial magistrate for not doing 67. something that was in her discretion whether to grant or not and in any case, how would she award damages to unsuccessful party. - 68. Ground d: is therefore answered in the negative. - 69. Ground e: **The learned trial magistrate erred in law and in fact when** she failed or refused to award the appellants mesne profits; - 70. Mesne profits are defined in section 2 (m) of the Civil Procedure Act as those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received from it, together with interest on those profits, but shall not include profits due to improvements made by the person in wrongful possession. - I have carefully looked at all the evidence on the court record and found 71. no evidence of the profits which the Respondents actually received. I am therefore not convinced that the trial magistrate erred by not awarding the same. - 72. Ground e is therefore answered in the negative. - 73. Ground h: **The learned trial magistrate erred in law and in fact when** she held or conducted the proceeding at the locus in quo contrary to the established judicial decisions binding on her, procedures and *practices*; - 74. It is well settled that once court visits the locus, evidence at the locus is conducted as part of the trial. There is no adding to or closing gaps at the locus. The evidence only clarifies what has already been testified in court. See The Registered Trustees of the Archdiocese of Tororo versus Wesonga Reuben Malaba HCT-04-CV-CA-0096 OF 2009. - 75. In the instant case, the trial court visited locus on the $15th$ day of November 2018 where parties were all present, counsel for the Respondents was present and counsel for the Appellants was absent. - 76. I have perused the entire court record but found no evidence to show that the trial magistrate breached the rules governing locus visits in any way. And even if there was any breach like it is alleged, the evidence adduced in court,

was sufficient to determine the matter even in isolation of the evidence at locus.

- 77. Ground h is therefore answered in the negative. - 78. Ground i: The decision complained against has occasioned a substantial miscarriage of justice. - 79. Having resolved that the trial magistrate reached a wrong decision on ownership of the suit land, it is automatic that such decision caused miscarriage of justice to the Appellants. - 80. Therefore, this appeal succeeds in the following terms - a. The decision, judgment and the orders of the lower court are set aside. - b. It is declared that the suit land belongs to the Appellants. - c. Appellants are awarded costs herein and those of the lower court.

I so order

**LUBEGA FAROUO**

**JUDGE**

DATE: 6th May 2024

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