Mwamadi and 2 Others v Hasahya and Another (Civil Appeal 2 of 2022) [2023] UGHCLD 318 (4 July 2023)

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT TORORO

## CIVIL APPEAL NO. 002 OF 2022

### 1. MWAMADI HIIRE

- 2. ABASS MIYA HIIRE - 3. ZEDI HIIRE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANTS (*All administrators of the estate of the late Mwamadi Hiire)*

### VERSUS

### 1. HASAHYA MOSES

2. BORA MUZAMIRU & ORS :::::::::::::::::::::::::::::::::::RESPONDENTS

### JUDGMENT

## BEFORE: HON. DR. JUSTICE HENRY I KAWESA

This is an appeal against the Judgment of the Magistrate G. I Butaleja of 7th April 2022, of Her Worship Kyomuhangi Happy Anne.

The Grounds of appeal are that:

- 1. The Learned Trial Magistrate erred in law and fact when she ignored the Appellant's evidence relating to long occupation and use of the suit land thereby came to a wrong conclusion. - 2. The learned Trial Magistrate erred both in law and fact when she failed to consider the Appellant's evidence at *locus vis-vis* that of the Respondents.

- 3. The Learned Trial Magistrate erred both in law and fact when she failed to exhibit the agreement of Mwamadi Hiire and recorded it as an Identification Document. - 4. The Learned Trial Magistrate, erred both in law and fact when she failed to properly evaluate the evidence on record thus declaring that the Respondents are the rightful owners of the land thus occasionally sic! (occasioning) a miscarriage of justice.

They prayed that the appeal be allowed and Judgment and Orders be set apart.

Both Counsel filed submissions which I have duly considered. The duty of a first Appellate Court is to re-evaluate the evidence afresh and make its own conclusions, bearing in mind that it did not have chance to observe the witnesses.

I notice that grounds 1 and 4 both refer to evaluation of evidence and will therefore be handled together, then grounds 2 and 3 will be handled separately.

After thoroughly and exhaustively going through the evidence on record, I do determine these grounds as follows:

# GROUNDS 1 AND 3

According to the submissions by the Appellants, the Trial Magistrate is faulted for failing to correctly assess the weight of evidence provided by the Plaintiff (Appellants) hence wrongly making a funding for the Respondents.

The evidence of the Plaintiffs was provided through PW1, PW2, PW3, and PW4. Counsel complains that the Trial Magistrate ignored their evidence as regard the fact that they inherited the disputed land from their father; Mwamadi Hiire.

From the evidence produced in Court, I find that all these witness did not have proof of the alleged fact. The evidence regarding the transactions between their late father; Mwamadi Hiire (*from whom they claim interest*) and the Defendant's father; Abdul Guloba is all hearsay evidence. From the record on page 8, PW1; Mwamadi Hiire after seeing that his father bought from Abdul Habende and Nangaka said "*I was told that my father bought land*". He then attempted to produce an agreement, which he could not explain how he got it, and he was not a signatory (*Page 9*). The agreement was received in Court for merely identification purposes; (leaving his evidence unsupported).

Throughout the cross examination and re-examination pages 10-11, his answers showed that he knew nothing much about the suit land for which he was suing PW2; Hiire Zedi, also did not witness any of the transactions between these fathers. He was telling Court hearsay evidence. On page 12 he said;

"*it was bought on 4th July 1974. I was not present at that time*" "*We cultivated the land from 1995-1998 when I was in P.7" "Abdul Guloba was using our land as well "*

*"Abdul Guloba requested to use part of our land from our mother and he was allowed.*

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*"I was not present when he was asking*"

"*Tausi Hiire told me he had asked her to use part of the land and she allowed" (Page 12)".*

Also page 13;

*"I was not present when the land was being distributed"* The witness confessed that he did not know who was on the land, and he last used it in 1990's, yet the conflict arose in 2008.

The evidence is not consistent at all. The witness stated on Page 14 that, he last used the land in early 1990, and the dispute arose in 2008, however in re-examination he changed to say that the dispute began in 2011, and that the family sat and authorised them to claim the land in 2012.

PW3; Tausi Mulondo, said land is for the Late Hiire Mwamadi who bought from Nangaka. She confirmed that she and Zuena gave Abdul Guloba part of the suit land, while the other part remained for her and Zuena.

However, at page 22, she said that the said part of the land that we were using was taken. "There is no reason why we stopped using the land"

PW4 claimed on Page 24 that:

"Our caretaker called Abdul Guloba grabbed the said land in 2001".

However, in cross examination Page 25 said;

*"I did not witness the transaction between Nangaka and my father"*

*"I was not an eye witness"*

*"My father died when I was seven years"*

PW5; Huzaima Mabonga testified on the agreement dated 4 th July 1974, he said he was among the witnesses, but did not sign the agreement. Counsel then withdrew the prayer to exhibit the agreement; and on page 28 Court noted that;

Michael: "*since witness did not sign on the agreement, we wish to withdraw our prayer….."*

*Court: "stands withdrawn as prayed"*

On the defence side, DWI Hasahya Moses said Hajji Guloba bought the land in four phases (page31). He said '*we bought from Yusuf Mamna in 1972, second from Namugowa in 1984, third from Wewera, fourth from Buhan Boora and Tausi Hiire in 1993'*.

DW2: Bora Muzamiru, identified some of the Defendant's agreements at page 34.

DW3; Musa Hasahya told Court that they got financial problems, his brother had need for money so they sold the land (suit land) to Abdul Hiire. He said the Appellant's claim was unfounded since they were claiming land which their family sold long ago (page 41)

DW4; Musa Hussein authorised the agreement between Edward Namugoowa to Abdul Hiire. Agreement DEX1.

DW5 Abdul Wahabembe said the land of Webeveyera was sold to Guloba and another agreement was executed and he signed on the agreement. Agreement dated 20th May 1972. (Received as DE2).

DW6 Musa Wanyenya also testified about his father Yusuf Bumina selling to Hajji Guloba.

DW7. Mariam Nandera gave evidence and said at page 53 that he knows the said land, and Abdul Hiire bought it from Yusuf Bumina in 1972, another from Namukini in 1984, then from Buruhan in 1993. He also bought from Wemera.

All evidence on record when considered, shows that there was more cogency, consistency and collaboration from the defence evidence regarding proof of the fact of acquisition and ownership of the suit land by Guloba from whom they claim interest.

The evidence Act in Section 101 – 103 requires proof of alleged facts by the party who puts them forth. The Plaintiffs (Appellants) failed to prove their ownership status before Court. The Trial Magistrate in her Judgment at page 1 – 11, thoroughly evaluated and weighed all this evidence, and I do find that she came to a correct assessment of the evidential value thereof.

I find no basis in the Appellants complaint under grounds 1 and 4. It was their duty to put before Court evidence that proves their claim on a balance of probability. The evidence failed to pass the test. I do not find merit in the said grounds 1 and 3 and they fail.

# GROUND TWO

I find ground 2 redundant. The record indicates that the *locus* was visited. The proceedings were all well documented. There was no failure at all on the Court. See page 56 – 61 of typed record regarding the requirements for the conduct of locus.

In her judgment at page 10, the learned Trial Magistrate referred to observations and conclusions reached at locus. I find no merit in the ground of appeal as raised. It fails.

## GROUND THREE

This is another redundant ground which lacks merit. The duty to provide proper evidence to Court is the duty of each party.

The complaint that the Learned Trial Magistrate erred when she failed to exhibit the agreement of Mwamadi Hiire and recorded it as an Identified Document! I wonder if Counsel who raised this ground was indeed serious. This is so because it was Counsel's own prayer in Court to have the document received as an Identified Document when he realised it could not pass as an exhibit. See page 9 of typed proceedings where it is recorded.

# Counsel for the Plaintiffs:

"*We wish to tender the agreement in Luganda and a translated version of the agreement as Plaintiff's exhibit*"

## Counsel Isaac:

"I object to the admission because the witness has not told Court how he got the agreement since he is not a signatory. I object to it being tendered as an exhibit".

Michael: "We pray the agreement is admitted for identification" Court:

"Agreement dated 04 July1974 is admitted for identification and is marked as PIDI".

Later on page 27 Counsel Michael is on record as attempting typing to reintroduce the said document through PW5 but withdrew after the witness also confirming that he did not sign it. On page 28 it is recorded:

Michael:

"Last time the agreement was admitted as PIDI, we were tasked to bring a party to the agreement which we have just done. The witness has identified the agreement and witnesses to it".

PW5: I did not sign on the agreement.

Michael: Since witness did not sign on the ground we withdraw our prayers.

Court:

"Stands withdrawn"

With that clear evidence of failure to exhibit the agreement, how on earth can Counsel come up on appeal and blame Court for failing to exhibit the agreement? The attempt to use submissions and hide under Section 90 of the Evidence Act, which was never raised in the lower Court is an attempt to mislead Court and is rejected.

This type of practice is to say the least an abuse of Court's useful time. Whereas an appeal is a right, Counsel bears a duty to correctly

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advise and bring to Court only well thought out and deserving grounds of appeal.

This is why the law requires that grounds of appeal should be well stated and not merely lengthy and argumentative grounds. Such grounds are always rejected and/or struck down for being ambiguous. This particular ground is to say that the least unprofessional abuse of process and annoying Counsel ought to be more serious when coming to this Court on appeal and avoid such flimsy grounds of appeal. This ground is unmerited and is rejected. It fails.

I have re-evaluated the evidence. I do find that the Trial Magistrate's assessment of the evidence before Court is correct. I resolve the appeal in favour of the Respondents.

The appeal fails.

It is dismissed with costs to the Respondents.

…………………………………….. Hon. Dr. Justice Henry I Kawesa JUDGE 4/7/2023

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### 4/7/2023:

Annet Gyabi; Counsel for the Respondent in Court.

Respondent in Court.

Appellants absent.

Counsel for the Appellants absent.

Counsel for the Respondents:

Matter is for Judgment.

Joan; Clerk.

Court: Judgment is ready. It is read to the parties present. Sgd: Hellen Edimu AG. ASST. REGISTRAR 4/7/2023