Mwami & 3 Others v Baluku (Civil Appeal 8 of 2021) [2024] UGHC 513 (24 May 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-00-CV-CA-LD No. 0008 OF 2021**

**(ARISING FROM KAS-02-CV-CS-LD 023 OF 2017)**

1. **MWAMI SOLOMON** 2. **MWAMI SIRIAGHO** 3. **MWAMI JOHN** 4. **BISOGHO ZAKALIA====================================APPELLANTS**

**VERSUS**

**REVEREND SWIZIN BALUKU=================================RESPONDENT**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Appellants represented by Sibendire, Tayebwa & Co. Advocates

Respondent represented by Bagyenda & Co. Advocates

**JUDGMENT**

**BACKGROUND:**

On the 19th day of December 2017, the Respondent in this matter brought a suit by way of ordinary plaint against the Appellants jointly in the Chief Magistrate Court of Kasese at Bwera seeking the following declarations:

1. The suit land comprised of approximately 4 acres held under customary tenure situated at Nyamughona II Village, Kisaka Parish, Bwera Subcounty, Kasese district belonged to the estate of the late Masereka Yeremia Sibathongana. 2. The Plaintiff has beneficial interest in the estate as a son to the deceased. 3. The suit land does not belong to the estate of the late Mavule Mwami. 4. The Defendants are not beneficiaries to the estate of the Late Masereka Yeremia Sibathonga. 5. The Defendants’ actions amount to intermeddling with administration of the estate. 6. The Defendants’ claim is time-barred. 7. A permanent injunction doth issue against the defendants. 8. The Defendants’ actions amount to trespass and conversion. 9. Ownership of land. 10. Eviction order against the Defendants. 11. Quiet and vacant possession for the Plaintiff. 12. Special and general damages for loss occasioned. 13. Costs of the suit.

In relation to the above, the former Plaintiff and now Respondent contended that his cause of action against the former Defendants and now Appellants was that in June 2017 they trespassed onto the suit land without colour of right. The Plaintiff/Respondent contended that the suit land was part of the estate of his late father Masereka Yeremia Sibathonga who died in 2000. He went on to contend that by the time the deceased passed on there was no dispute between his late father and one Mavule, father to the Defendants/Appellants and brother to the deceased. Furthermore, the two brothers had peacefully co-existed for decades without any land dispute.

The Plaintiff/Respondent listed the particulars of trespass, conversion, illegalities, mal fides and losses to include intermeddling, misrepresentation of the suit land, wrongful entry on the suit land without authority, cultivation on the suit land, mental anguish and loss of mesne profits since 2016. He further indicated that the cause of action was founded on the law of succession, trespass and conversion.

For their part, the Defendants/Appellants filed a written statement of defence and a counterclaim. In the Written Statement of Defence (WSD) they denied all the allegations raised in the Plaint save for their own particulars, addresses and frames of mind. They indicated that they intended to raise preliminary objections on the grounds that the suit was time-barred, an abuse of court process and lacking of prior notice of intention to sue. They further substantively claimed that the suit land belonged to their father and not his deceased brother. They also claimed that the Plaintiff, his stepmother and some of his family members had been utilizing the suit land as licencees. They contended in turn that the suit land ultimately belonged to the estate of their late father Mavule, a paternal uncle to the Plaintiff/Respondent.

By way of counterclaim, the Defendants/Appellants maintained that the suit land belonged to the estate of their late father and not the late father of the Plaintiff/Respondent. The contended that it was the Plaintiff/Respondent that was trepassing upon the suit land and prayed for a declaration that the land belonged to the Defendants/Respondents.

His Worship Edgar Karakire – Magistrate Grade 1 heard the matter and pronounced judgment for the Plaintiff/Respondent on 24th February 2021. In his judgment, the Learned Trial Magistrate found that the Defendants were trespassers on the suit land and that the Plaintiff was entitled to vacant possession. In reaching this decision the Learned Trial Magistrate considered three issues.

1. Who is the rightful owner of the suit land? 2. Whether the defendants are trespassers on the suit land? 3. What remedies are available to the parties?

Concerning the first issue, the Learned Magistrate considered the evidence of the Plaintiff PW1 who testified that his late father had given him the suit land and that he had been in possession for over 40 years till the defendants trespassed in June 2017. The Trial Magistrate found that witnesses PW2, PW3, PW4 and PW5 all corroborated this evidence.

The Trial Magistrate also heard from the Defendants’ witnesses DW1, DW2, DW3, DW4 and DW5 who all testified that the suit land belonged to their late father who had temporarily allowed Esteri Mbambu, widow to the late father of the Plaintiff, to use the land till 1991. The Trial Magistrate then took into account the submissions of the lawyers representing the parties. He observed that Counsel for the Defendants did not make any arguments in contradiction of Counsel for the Plaintiff but attacked the evidence produced for the Plaintiff, which he found peculiar, as the Defendants had counterclaimed. The Trial Magistrate wondered how the Defendants could maintain their counterclaim and yet they claimed to have been wrongly sued. The Trial Magistrate also observed that PW4 had originally been brought as a Defence witness but he wrote to court denying the witness statement and instead testified for the Plaintiff. He further observed that their pleadings were factually different from their testimonies and ultimately concluded that Defendants’ case was a mere concoction and dismissed it as a lie.

The Trial Magistrate observed that the testimonies of the Plaintiff and his witnesses pointed to the fact that the land had at all material times been the property of the Plaintiff’s late father who passed it on to the Plaintiff over 40 years ago. The Trial Magistrate also indicated that PW4s evidence as the LC1 of the area had swayed him and that this evidence was unshaken by cross-examination. The Trial Magistrate further indicated that much as the Defendants submitted that PW2 lied about houses and burial grounds being on the suit land, the Trial Magistrate observed that the location of the land, its size and boundaries were all properly identified by the Plaintiff and his witnesses. The Trial Magistrate expressed the view that this was the case of an absent land owner whose absence was exploited by strangers. To the extent of the foregoing the Trial Magistrate found that the Plaintiff’s evidence met the required standard of balance of probabilities and concluded that the Plaintiff was the rightful owner of the land.

Based on the foregoing reasoning the Trial Magistrate also concluded that the Defendants were trespassers on the land and by way of remedy decided the suit in the Plaintiff’s favour.

The Defendants being aggrieved and dissatisfied with the decision of the Trial Magistrate subsequently appealed the decision to this court on the following grounds:

1. The Learned Trial Magistrate erred in law and fact when he relied on the evidence of PW4 Bwahuha Wilson who was never cross-examined. 2. The Learned Trial Magistrate erred in law and fact when he held that the suit land belonged to the Plaintiff/Respondent in total deviation from the pleadings. 3. The Learned Trial Magistrate erred in law and fact when he failed to conduct a locus in quo visit which occasioned a miscarriage of justice. 4. The Learned Trial Magistrate erred in law and fact when he sent the Court Clerk to the locus in quo and ignored the findings therefrom which occasioned a miscarriage of justice. 5. The Learned Trial Magistrate erred in law and fact when he relied mostly on the minor inconsistencies in the defence which occasioned a miscarriage of justice. 6. The Learned Trial Magistrate erred in law and fact when he held that the Plaintiff/Respondent had proved the ownership of the suit land on a balance of probabilities. 7. The Learned Trial Magistrate erred in law and fact when he ignored the major inconsistencies in the Plaintiff/Respondent’s case. 8. The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence and thereby came to a wrong decision.

The Appellants subsequently made the following prayers:

1. The appeal be allowed. 2. The judgment of the lower court be set aside. 3. In the alternative, a retrial be ordered. 4. The Appellants be awarded the costs of this appeal and the court below.

The lawyers for the Appellants and Respondent made written submissions.

Counsel for the Appellant submitted on the grounds arguing grounds 3 and 4 together; grounds 5, 6, 7 and 8 together; and, grounds 1 and 2 separately.

**Ground 1:**

Counsel for the Appellants made reference to Pages 7 and 8 of the record of proceedings wherein he observed that on 28th November 2019 witness PW4 appeared in court following a witness statement filed on 28th June 2019. Counsel argued that the witness had previously made a statement on 23rd January 2019 which bore an identical signature to the witness’ signature on the witness summons. Furthermore, Counsel pointed out that the statement filed on 29th June 2019 was filed after the Plaintiff commenced his case on 30th May 2019 meaning that PW4 had switched sides. Furthermore, Counsel submitted that according to the court record PW4 was not cross-examined and yet at Page 3 of his judgment the Trial Magistrate had indicated that he was swayed by the evidence of PW4. The Trial Magistrate had also stated in the judgment that the evidence of PW4 had not been shaken in cross-examination.

Counsel for the Appellants further contended that the Learned Trial Magistrate accused the Defendants of falsification of evidence by relying on a letter written to court by PW4 and yet PW4 had made a statement before a magistrate. To that extent, Counsel for the Appellant contended that the value the Trial Magistrate placed on the evidence of PW4 had caused a miscarriage of justice.

In response to Ground 1 Counsel for the Respondent argued that PW4 denied ever making a statement for the Defendants/Appellants and that when he appeared in court his statement for the Plaintiff/Respondents was adopted in court as evidence in chief. However, when it came to cross examination, the Defendants were not ready to cross-examine and were granted 2 hours to look at PW4s statement and prepare. Counsel went on to submit that when court was reconvened the Defendants were unable to proceed and to that extent it was their fault that PW4 was not cross-examined. Counsel further submitted that even after two months before PW5 was called, the Defandants made no application to cross-examine PW4.

Counsel for the Respondents further submitted that even without the evidence of PW4, the evidence received from PW1, PW2, PW3 and PW5 was enough to prove the Plaintiff case on a balance of probabilities. Counsel then pointed out that it was upon the Defendants to rebut the evidence but the Defence witnesses all testified contrary what was pleaded in the Written Statement of Defence and their counterclaim. Counsel contended that the evidence received in court was to the effect that DW1, DW2, DW3 and DW4 had no interest in the land and furthermore, DW5, DW6 and DW7 testified to the effect that the suit land belonged to DW5. The WSD filed on 12th January 2018 indicated that the Defendants contention was that the land was part of the estate of their late father and had been passed on by hereditary succession. This same claim was repeated in the Counterclaim.

Counsel for the Respondents argued that the Defendants had departed from their pleadings citing the cases of **Uganda Breweries Ltd v Uganda Railways Corporation – SCCA No. 6 of 2001; Kasifa Namusisi & 2 Others v Francis MK Ntabaazi – SCCA No. 4 of 2005**; and **James Frederick Pool Nsubuga v AG (1990-91) KLR 11, 91**.

By virtue of the decisions above Counsel for the Respondents argued that by virtue of the Defendants/Appellants departing from their pleadings the Plaintiff/Respondent’s cause of action was uncontroverted. There was therefore no miscarriage of justice and Counsel prayed for Ground 1 to be rejected.

Counsel for the Appellant submitted in rejoinder that the issue in Ground 1 related to the evidence of PW4 and not the pleadings of the Appellants in the lower court. Counsel reiterated that there was no cross-examination of PW4 and that the Trial Magistrate had simply proceeded to PW5 without addressing the cross-examination of PW4 which issue had arisen in the absence of Counsel for the Defendants. Counsel further reiterated that the reference to PW4s evidence by the Trial Magistrate in his judgment showed that he attached weight to the evidence without which the Plaintiff case would not have succeeded.

**Ground 2:**

Counsel for the Appellant cited the decision of the Supreme Court in **Margaret Kato & Joel Kato v Nuulu Nalwoga – Supreme Court Civil Appeal No. 3 of 2013** and argued that the Plaintiff’s claim was that the suit land belonged to the estate of the late Masereka Yeremia Sibathongana. He further argued that it was never claimed in the plaint that the deceased ever gave the suit land to the Respondent before he passed away and that only Paragraph 4 (iii) of the Plaint seemed to suggest an allocation to the Plaintiff upon demise of the deceased.

Counsel for the Plaintiff argued that the Plaintiff and his witnesses all testified that the suit land was given to the Plaintiff as a gift inter vivos which testimony was a deviation from the pleadings. The Plaintiff PW1 testified on cross-examination to having received the land from his late father in 1978 in the presence of PW2. PW2 stated in his evidence in chief that the land was part of the estate of the Plaintiff’s late father but on cross-examination said that the Plaintiff’s late father gave the suit land to the Plaintiff. PW4 also stated in his evidence in chief that the Plaintiff received the land as a gift inter vivos. PW5 claimed that he rented the suit land from the Plaintiff in 1980. Counsel challenged this testimony on the basis that if the Plaintiff knew that the land was his all along then why file a suit claiming that the land was part of the estate of his late father.

Counsel concluded by arguing that to the extent that there was no prayer in the Plaint for a declaration that the suit land belongs to the plaintiff, it was a clear deviation from the pleadings for the Trial Magistrate to hold that the land belonged to the Plaintiff.

Counsel for the Respondent submitted in response reiterating arguments in Ground 1 detailing what transpired in court and submitted that there was no departure at all and if it was there it was minor and not fatal to the case.

Counsel for the Respondent further submitted that the suit was for declarations concerning ownership of the suit land and trespass and that either way whether claiming as beneficiary or donee, similar questions of fact would have to be settled on ownership. Counsel also pointed out that the Plaintiff/Respondent filed his suit unrepresented and that the suit land had its origins in the estate of his late father. Counsel contended that this was why the plaint listed a number of declarations beginning with the estate of the Plaintiff’s late father.

Counsel for the Respondent went on to argue that whereas the Appellants were focused on the shift in the claim from the estate to a gift inter vivos, the Appellants had not submitted anything about the land being theirs. Counsel then cited the case of **Israel Kabwa v Martin Banoba Musiga – SCCA 52 of 1995** in which the Supreme Court recognized the right of a beneficiary to sue and protect the estate of an intestate for his own benefit. To that extent, Counsel submitted that the Trial Magistrate correctly determined the Plaintiff as owner of the land and that any departures from pleadings were minor.

Counsel for the Appellants submitted in rejoinder pointing out that departure from the pleadings on the part of the Appellants as suggested by the Respondents could not serve to resolve the suit in their favour. Counsel pointed out that the Plaintiff’s case is not founded on the weakness of the Defendants’ case but on the Plaintiff discharging the burden of proof. Counsel further argued that the causes of action related to the suit land being part of an estate and the land being a gift inter vivos was clearly different and reiterated the position in the **Margaret Kato** case (supra) above.

**Grounds 3 and 4:**

Grounds 3 and 4 relate to the question of locus in quo visit done as part of the hearing of the case in the lower court.

Counsel for the Appellants drew attention to Practice Direction No. 1 of 2007 requiring the presence of all parties, their witnesses and advocates and that parties and witnesses be allowed to adduce evidence and be cross-examined and all proceedings recorded inclusive of a sketch plan. Counsel further extensively cited the decision in **The Registered Trustees of the Archdiocese of Tororo v Wesonga Reuben Malaba and 5 Others – High Court Civil Appeal No. 96 of 2009** on the purpose of a locus visit.

Counsel submitted that based on the authorities above the locus visit in the instant case was a requirement. Counsel then pointed out that while the Trial Magistrate made reference to a locus in quo visit in his judgment, the court record shows no record of the visit. Counsel further pointed out that while there is a sketch map on the file with an attendance list dated 27th February 2020, there is no record of the Trial Magistrate being at the locus.

Counsel for the Appellants also pointed out that the sketch map contradicted the evidence of PW2 who had stated in court on cross-examination that there were graves on the suit land. Furthermore, PW3 had also stated on cross-examination that the Plaintiff’s father was buried on the suit land and that PW2 was resident on the land all contrary to what was indicated in the sketch map.

Counsel for the Appellant argued that the Trial Magistrate acknowledged the contradictions but made no evaluation of the same and yet they were major contradictions. To that extent Counsel for the Appellant argued that grounds 3 and 4 succeed.

In response to Grounds 3 and 4, Counsel for the Respondent argued that the Trial Magistrate had conducted a locus visit based on the judgment and the court record. Counsel further argued that the sketch map was indication that a locus visit took place. He also argued that the locus visit revealed that one of the Defence witnesses DW5 owned land next to the suit land rather than the suit land itself. To that extent, he argued that since all the Defendants had testified that the suit land did not belong to them then the court could not give them what did not belong to them.

Counsel for the Appellant submitted in rejoinder that the Respondent’s submissions were mostly emotive and did not address the issue of why there was no record of what transpired during the locus visit. Counsel maintained that the Trial Magistrate sent a clerk to the locus and the clerk only drew a sketch map. To that extent Counsel reiterated their submissions on grounds 3 and 4 and insisted that they succeed.

**Grounds 5, 6, 7 and 8:**

Counsel for the Appellant argued grounds 5 to 8 jointly and cited the case of **Sebuliba v Cooperative Bank Ltd (1982) HCB 130.** On the basis of this case Counsel argued that whereas the Trial Magistrate had relied on principle of deviation from pleadings and treated the Defence evidence as false, he had failed to find that there were major inconsistencies in the Plaintiff evidence. Counsel pointed out that the Plaintiff evidence contradicted his pleadings on ownership and yet when it came to similar contradictions for the Defendants, the Trial Magistrate upheld them. Counsel further pointed out and reiterated that the sketch map contradicted witness testimony from the Plaintiff’s side. There was also contradiction evident when the Trial Magistrate found that PW5 was a neighbor to the suit land which finding does not rhyme with the sketch map.

Counsel for the Appellant went on to point out that whereas the Trial Magistrate concluded that DW3 rented the suit land, DW3 had indicated during cross-examination that he had never rented the suit land. Furthermore, the Trial Magistrate had relied on the Plaintiff’s testimony that he rented the land to many people and yet these people were not produced in court to testify. He further pointed out that it was not clear how the Plaintiff was renting out land while his father was still alive up to the year 2000. The testimony of PW4 concerning land being given to one Mwami Amiza was also unclear given that the sketch map showed that to the south of the land there was a river.

Counsel for the Appellant maintained that the Trial Magistrate had not exhaustively addressed the question of who was in possession of the suit land for the past 40 years. Counsel further cited the case of **Oyet Bosco and Anywar Charles v Abwola Vincent – HCCA No. 0068 of 2016** and argued that whereas the Trial Magistrate concluded that the Plaintiff’s absence led to exploitation of his land, he had contradictorily concluded that the land belonged to the Plaintiff without evidence. He further alluded to the evidence of DW6 about a boundary established in 1991.

Counsel for the Appellants maintained that the Plaintiff’s evidence did not shift the burden of proof and was not adequate to determine the case in his favour on a balance of probabilities. To that extent, he argued that Grounds 5 to 8 should succeed.

Counsel for the Respondents submitted in reply that as long as the Defendants had testified to not having an interest in the land, there is no reason why they are before court. He further objected to Ground 8 as being too general. Counsel went on to disagree that the Trial Magistrate had relied on major inconsistencies and insisted that a retrial would not yield any result as this appeal involved Appellants who claimed no interest in the suit land during the trial. Counsel relied upon the decision in **Justine E. M. N Lutaaya v Stirling Civil Engineering Co. Ltd – SCCA 11 of 2002** to reiterate that the Appellants were trespassers on the suit land and that Grounds 5, 6, 7 and 8 be rejected.

Counsel for the Appellant argued in rejoinder that it was erroneous for the Trial Magistrate to rely on the weakness of the Defence as opposed to the strength of the Plaintiff’s case. Counsel further argued that the Respondent does not even dispute the inconsistencies in the Plaintiff’s case and to that extent, Grounds 6 and 7 should succeed.

**ANALYSIS AND RESOLUTION OF THE GROUNDS:**

I have had the benefit of looking at the grounds of the appeal as well as the submissions of the lawyers for both parties. I have also had the benefit of reading the judgment of the Learned Trial Magistrate His Worship Edgar Karakire and the lower court record in its entirety.

Counsel for the Appellants came up with 8 grounds of appeal and proposed to handle Grounds 1 and 2 separately while Grounds 3 and 4 would be handled together and lastly for Grounds 5, 6, 7 and 8 to be handled jointly.

However, having had the benefit of looking at the Appellants’ submissions I find that Grounds 1, 5, 6, 7 and 8 are all interrelated to the extent that they speak to the quality of the Respondent/Plaintiff’s evidence in the lower court. I therefore consider it fitting and expedient to address the grounds together.

Ground 2 will be handled separately.

Grounds 3 and 4 will also be handled together to the extent that they both relate to the question of the locus in quo visit in this matter.

In considering this appeal, I bear in mind the duty of this court as first appellate court. This court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of **Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000** where court held that,

*“It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions.”*

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. It is only upon such scrutiny that this Court can decide whether to uphold the Trial Court’s findings. In doing so, court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses (see **Peters v. Sunday Post [1958] E. A 424**).

**Grounds 1, 5, 6, 7 and 8:**

* **The Learned Trial Magistrate erred in law and fact when he relied upon the evidence of PW4 Bwahuha Wilson who was never cross-examined.** * **The Learned Trial Magistrate erred in law and fact when he relied mostly on minor inconsistencies in the defence case which occasioned a miscarriage of justice.** * **The Learned Trial Magistrate erred in law and fact when he held that the Plaintiff/Respondent had proved the ownership of the suit land on a balance of probabilities.** * **The Learned Trial Magistrate erred in law and fact when he ignored the major inconsistencies in the Plaintiff/Respondent’s case.** * **The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence and thereby came to a wrong decision.**

In civil trials, Sections 101 to 104 of the Evidence Act primarily establish the burden of proof.

Section 101 provides that,

1. *Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.* 2. *When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.*

Section 102 provides that,

*“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”*

Section 103 provides that,

*“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.”*

Section 104 provides that,

*“The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give that evidence.”*

Going by the foregoing provisions of the Evidence Act, the burden of proving facts or facts enabling evidence of other facts in civil matters rests upon the one who alleges. Furthermore, the extent of the burden is determined according to the pleadings. In the matter from which this appeal arises, the pleadings show that the Respondent/Plaintiff raised pleadings to the effect in summary that:

1. He has beneficial interests in customary land which land belongs to the estate of his late father. 2. The Appellants/Defendants had unlawfully trespassed on the suit land claiming that it formed part of the estate of their late father. 3. The actions of the Appellants/Defendants amounted to intermeddling, trespass and conversion.

In light of the pleadings above, the Respondent/Plaintiff sought declarations to the effect inter alia that:

1. The land belonged to the estate of his late father. 2. He had beneficial interests in the estate of his late father. 3. The defendants were not beneficiaries in the estate of his late father and did not own the suit land. 4. The defendants’ actions amounted to intermeddling, trespass and conversion. 5. Ownership of land. 6. Grant of quiet and vacant possession to the Plaintiff.

Having had the benefit of looking at the entire case as presented in the court record as well as the judgment of the lower court. The first thing that immediately stood out to me was the framing of issues. The Learned Trial Magistrate based his judgment on three issues, these being:

1. Who is the rightful owner of the suit land? 2. Whether the defendants are trespassers on the suit land. 3. What remedies were available to the parties?

Having framed the first issue the Learned Trial Magistrate went on to address the same in apparent disregard of the fact that the Plaintiff now Respondent had stated in his pleadings that the suit land existed as part of an estate of a deceased person. The Plaintiff stated in his pleadings that the foundation of his claim originated in rights he derived as a beneficiary to the estate of his late father. He further stated that the Defendants now Appellants had no legal claim to the suit land as they were not beneficiaries to the estate of his late father.

Having set forth the pleadings in this manner, it was incumbent upon the Plaintiff to prove to the satisfaction of court that the property having been described as part of the estate of deceased’s father had been legally bequeathed and effectively transferred to the Plaintiff. The evidence in this regard was not only inadequate but contradictory in some respects. All of the Plaintiff’s witnesses, himself included, testified that the suit land had been given to the Plaintiff while his father was alive. In that regard this raised questions about the foundation of the entire suit because by the Plaintiff’s own pleadings at Paragraph 11 of the Plaint the cause of action in the suit was “founded on the law of succession, trespass and conversion”.

In addition to the above, the Plaintiff specifically sought declarations to the effect that the defendants were intermeddling with the estate of the deceased. The fact that he brought the suit in the manner that he did meant that the Learned Trial Magistrate was obligated to first settle the question of whether this was a suit founded on a succession dispute or not before delving into the actual issues of ownership of the same. If it turned out that the suit was wrongly commenced on a foundation of succession then it ought to have ended at that point as the cause of action had ceased to exist. However, in the instant case the Trial Magistrate proceeded to resolve the suit without due regard to the succession question and in so doing rendered a decision inconsistent with the cause of action. It is evident therefore that in this regard the Learned Trial Magistrate did fail to evaluate the evidence correctly leading him to arrive at a decision inconsistent with the stated cause of action. To that extent, Ground 8 of the appeal succeeds.

The question of reaching a decision inconsistent with the cause of action alone ought to resolve the entire appeal. However, in case I happen to be wrong in that conclusion I will still proceed to address the rest of the grounds challenged based on the quality of the evidence.

The Appellants called into question the reliance that the Trial Magistrate placed on the evidence of one Wilson Bwahuha PW4 on the grounds that he was not cross-examined. In relation to the evidence of PW4, the Trial Magistrate stated in his judgment at Page 1 as follows,

*“PW4 Bwahuha Wilson said that the suit land belonged to the Plaintiff’s father, but that at one point the defendant’s father one Mavule requested the Plaintiff’s father to give his son Mwami Amiza some land, and that as brothers the Plaintiff’s father gave the said person, who is a brother to the defendants, part of the land which neighbours the suit land to the south. PW4 said at the material time he was the area LC1 Chairperson.”*

The Trial Magistrate further stated of the same witness at Page 3 that,

*“I also wish to remark on PW4s evidence, Mr. Bwahuha Wilson. On record indeed is a witness statement supposedly deposed by him as a defense witness. Peculiarly, however, in a letter to this court dated 4th March 2019 he denounced ever making a statement of that sort. Ultimately he gave evidence for the Plaintiff. Anyway the effect of all these mishaps, to my mind, including such blatant falsification of evidence, is that the defendants did not have a clear plan of action to prosecute this matter but made the plans along as the case moved on. This I believe is why their pleadings are indeed fundamentally factually different to their testimonies during trial. The eventual effect of such conduct obviously would bear the conclusion that their case is a mere concoction and eventually a lie. I therefore agree with Counsel for the Plaintiff. I utterly disagree with the evidence produced by the defendants and dismiss the same as mere lies.”*

It is clear from the statements above that in reaching his decision the Learned Trial Magistrate placed a great deal of reliance upon the testimony of PW4 Bwahuha Wilson along with the circumstances surrounding the said testimony. Counsel for the Appellants argued that the Trial Magistrate was wrong to rely on the testimony because PW4 had never been cross-examined. Counsel for the Respondents argued to the contrary submitting that the reason that PW4 was not cross-examined was because the Plaintiffs forfeited their right to do so.

I have examined the record and established that PW4 Bwahuha Wilson appeared in court on 28th November 2019. At that time, the Trial Magistrate noted that the defendants had stated that the witness statement had not been served upon them and they were not prepared to cross-examine. The record further shows that the defendants who were unrepresented were granted 2 hours to study the statement but upon return they indicated that they were not ready to cross-examine. The matter was then adjourned to 22nd January 2020 at which point the court proceeded with the next witness PW5. It was also evident on the record that while the Defendants were unrepresented on that day, they had stated to court that their lawyer had told them that they should still proceed.

From the above, I do agree that it is apparent that the Defendants did apparently forfeit their right to cross-examine especially since there are other instances on the record when they proceeded to cross-examine witnesses without their lawyer. However, I also find that this situation was not the fault of the Defendants. There is a letter addressed to the Trial Magistrate from Nyote and Company Advocates dated 18th November 2019. In that letter, Counsel David Innocent Nyote informed court that he was indisposed on 20th November which was the next hearing date as he would be attending CLE training in Kampala. He subsequently prayed for alternative hearing dates in January 2020. There is no indication on the record that the letter was taken into account by the Trial Magistrate.

It has been previously held by the High Court in the case of **Acaali Manzi v Nile Bank – HCCS 87 of 1993** that adjournments by way of letter are not acceptable. According to the Uganda Civil Justice Bench Book, 1st Edition 2016, the proper mode for application for adjournment is as follows:

1. *Applications for adjournment should be made orally by counsel before court.* 2. *Where the practitioner making the application is unable to appear in person to make the application, he or she has the liberty to instruct another practitioner to assist him in seeking the adjournment.* 3. *In the alternative, if counsel is not able to attend and make the application in person, he or she has the liberty to advise the applicant to personally come to court and apply for adjournment (see* ***Livingstone Kato v Filimoni Kagwa – HCCS No. 9 of 1992****).*

In light of the above, it is clear that the events leading up to the Defendants failing to cross-examine were entirely the fault of their lawyer who failed to adopt the correct procedure for applying for adjournment. In this regard, it is trite law that the mistakes of Counsel cannot be visited upon the client. The Trial Magistrate should have taken all of this into account before letting the Defendants forfeit their right to cross-examine and in other instances to cross-examine without the benefit of Counsel. A Judicial Officer is not simply a spectator to judicial proceedings or expected to passively listen to arguments and render a decision but should also impartially guide the proceedings in a manner that ensures that substantive justice is realized without undue regard to technicalities. This is particularly the case where litigants are of more humble backgrounds as was evident for the Defendants.

The role of Judicial Officers where litigants are unrepresented is a delicate balancing act but has nonetheless been recognized as necessary in the context of litigants from less developed regions. In the Kenyan case of **C Patel v BD Joshi (1952) 19 EACA 42,** it was held at Pages 43 and 44 that,

*“A trial judge should not descend into the arena where his vision may become clouded by the dust of the conflict. Where the parties are represented by counsel, it is preferable that ordinarily, the conduct of the case should remain in their hands. Not to do so might indeed lead to the error of descending into the arena. It is one thing, however, to accept that principle and quite another to argue that, in a civil case, where the conduct of the case is left entirely in the hands of the parties. That is not the law and practice in Kenya. Sometimes, particularly in the backward areas, litigants in a civil case may often appear without counsel. If the hands of the court were tied by some rule that the case should remain entirely in the hands of the parties, the trial of such cases might present great difficulty and the end of justice might be perverted.”*

In this particular instance, the Defendants were represented but their lawyer was absent from court for reasons which he laid before court, albeit improperly. Bearing in mind the foregoing decision, the Trail Magistrate ought to have weighed whether in the circumstances of the case, there would be difficulties posed by not cross-examining PW4 and furthermore whether such difficulties would pervert the ends of justice. Having failed to do consider this the question becomes whether the ends of justice were perverted.

In determining the justice of considering the evidence of PW4 without cross-examination, I considered the fact that the Trial Magistrate drew adverse conclusions about the truthfulness of the Defendants based to a large degree on the evidence of PW4. As is evident in the portion of the judgment I already cited above, the Trial Magistrate attributed falsification of evidence to the Defendants due to the fact that PW4 had two witness statements on record one of which he disowned in a letter written to court.

According to what I saw on the court file, there is a witness statement attributed to PW4 Bwahuha Wilson dated 23rd January 2019 and filed in court on the same day. In that statement, PW4 gives evidence for the Defendants. However, on 1st March 2019, Bwahuha Wilson wrote to court disowning the statement and giving evidence for the Plaintiff instead. This development was extremely important as it automatically brought into question the credibility of the evidence of PW4. In such circumstances, it was incumbent upon the Trial Magistrate to satisfy himself by way of evidence that the statement PW4 was disowning was actually fake. The admissibility of PW4s evidence for the Plaintiff was dependent on him demonstrating to court that the statement previously attributed to him in favour of the Defendants was fake. This is in keeping with Section 104 of the Evidence Act cited above.

There is no indication in the decision of the Trial Magistrate beyond the untested word of the Plaintiff that he relied on any evidence to determine that the prior statement was actually fake. This was indeed unfortunate because the authenticity or lack thereof of the first statement would have been easily determined because it was thumb-printed. I therefore uphold Ground 1 to the extent that by relying on the evidence of witness who was not cross-examined, the Trial Magistrate drew adverse conclusions about the Defendants without any sound evidential basis contrary to Section 104 of the Evidence Act.

I also find that to the extent that the Trial Magistrate also based his conclusions about the untruthfulness of the Defendants on apparent inconsistencies in their testimonies in relation to their pleadings, he acted contrary to Sections 101 and 102 of the Evidence Act in essence shifting the burden onto the defendants. It was the duty of the Plaintiff to prove his case to the satisfaction of the court and not for the court to determine the case based on apparent untruths of the Defendants. To that extent, therefore I also find merit in Ground 5 of the appeal.

As concerns Grounds 6 and 7, Counsel for the Appellants raised a number of inconsistencies. However, in my prior discussion related to Grounds 1 and 8 above I already pointed out that there was a material inconsistency in the Trial Magistrate’s conclusion about ownership with regard to the cause of action related to succession. Furthermore, there was a major inconsistency apparent on the record in light of two different statements on record in relation to the same witness Bwahuha Wilson. I shall therefore only dwell on one further area of inconsistencies highlighted by the Appellants and these are the inconsistencies related to the witness testimonies and the locus in quo visit.

At Page 3 of the judgment of the Trial Magistrate, he held that,

*“Counsel for the Defence pointed out that the Plaintiff and his witnesses lied in as far as identifying the land and what is on it. This is because whereas PW2 stated that there are houses and burial grounds on the suit land, none were found during the visit of the locus in quo. Be that as it may however, the location of the land, the apparent size but importantly the land’s neighbours were all quite properly identified by the plaintiff, and his witnesses. I therefore do not agree with Counsel for the Defendants that the land referred to by the Plaintiff is different from the suit land. I believe that this is a case of an absent land owner, who leaves his land for an extended time and strangers seek to exploit the situation. Plaintiff’s evidence indicated that he had for a considerable time rented the land to tenants … It does not at all defy logic to find that the Defendants attempted to hold on to it when he demanded to have its repossession.”*

The Trial Magistrate then went on to state in his decision that the Defendants were trespassers.

Having reviewed the witness testimonies and evidence on the file, I find that the conclusions made by the Trial Magistrate especially with regard to the Defendants being trespassers is largely unsupported by the evidence. As pointed out above, the central cause of action brought by the Plaintiff revolved around succession rights, trespass and conversion. To that extent, the Plaintiff needed to specifically prove the cause of action as stated. In the portion of the Trial Magistrate’s judgment most recently cited above, the Trial Magistrate disregards inconsistencies in evidence crucial to confirming ownership of the land preferring instead evidence ostensibly from the same locus quo visit. For example, the Plaintiff’s witness PW2 testified about there being graves on the suit land. However, when one looks at the sketch map on record there is clear indication thereon that there were no graves or houses. There is equally no clear indication of trespass on the sketch map.

Notwithstanding the above, reliance upon the locus in quo in evidence is also questionable and problematic at best. When I reviewed the Court record concerning the locus in quo visit, all I saw was a sketch map and an attendance list. There was no evidence of the proceedings that transpired on the ground in order to determine how the Trial Magistrate arrived at his conclusions concerning ownership, trespass and conversion. The issue of the trespass is particularly important because beyond the Plaintiff himself, none of the other Plaintiff witnesses testified as the extent and exactly how the Defendants had trespassed on the suit land.

Rule 3 of Practice Direction No. 1 on the Issue of Orders relating to Registered Land which affect or impact on the tenants by occupancy provides that during the hearing of land disputes the court should take interest in visiting the locus in quo and while there;

1. Ensure that all the parties, their witnesses, and advocates (if any) are present. 2. Allow the parties and their witnesses to adduce evidence at the locus in quo. 3. Allow cross-examination by either party or his or her counsel. 4. Record all the proceedings at the locus in quo. 5. Record any observation, view, opinion or conclusion of the court including a sketch plan if necessary.

Going by the standards stipulated above and what I observed on the court file, I find that there is no sufficient basis to conclude that a meaningful locus in quo visit took place. There is no record of witnesses adducing evidence whether in chief or in cross-examination. There is also no indication of any observations, views, opinions or conclusions made by court at the locus in quo. Without any of this information, there is no verifiable means of determining how the Trial Magistrate arrived at the conclusion that there was trespass and conversion. To that extent, there is no demonstration of how the Trial Magistrate determined on a balance of probabilities that the land belonged to the Plaintiff.

The lack of a proper record of proceedings at the locus in quo meant that the evidence of the Plaintiff fell short of the requirements of Sections 101 to 103 of the Evidence Act.

In light of the foregoing, I find merit also in Grounds 6 and 7 and they accordingly succeed.

**Ground 2:**

**The Learned Trial Magistrate erred in law and fact when he held that the suit land belonged to the Plaintiff/Respondent in total deviation from the pleadings.**

Concerning the question of deviation from pleadings, Counsel for the Appellants argued that the Trial Magistrate erred to the extent that he found that the land belonged to the Plaintiff contrary to the Plaintiff’s pleadings to the effect that the land belonged to the estate of his late father. Counsel for the Respondent pleaded in response that the deviation was minor if it existed and argued that the suit land had its origins in the estate of the Plaintiff’s late father and that to that extent the declarations sought were consistent with the origins of the land.

Having examined the pleadings closely, I find that the pronouncement of the Trial Magistrate that the Plaintiff was the owner of the suit land was not a deviation per se. This is because indeed among the prayers of the Plaintiff he did request under Paragraphs 3(i) and 3(k) of the Plaint for declarations for ownership of the land and quiet and vacant possession respectively. However, as I have already discussed, the conclusion about ownership could not be resolved without first unpacking and resolving the question of succession especially since the Plaintiff had stated it as an integral part of the cause of action in Paragraph 11 of the Plaint.

It is therefore my finding that to the extent that the Trial Magistrate arrived at a conclusion that the Plaintiff was the owner of the suit land without resolving the issue of succession, there was a partial deviation.

In reaching this conclusion, I am fortified by the observations of the Late Justice Arthur Oder as referenced by Counsel for the Appellants in this matter from the Supreme Court case of **Margaret Kato & Joel Kato v Nuulu Nalwoga - SCCA No. 03 of 2013**. In that case, the Supreme Court referred to the holding of the late Justice Oder in an earlier Supreme Court case **Inter Freight Forwarding (U) Ltd v East African Development – Civil Appeal No. 33** who held that,

*“A party is expected and is bound to prove the case as alleged by the pleadings and as covered in the issues framed. He will not be allowed to succeed on a case set up by him and be allowed at the trial to change his case and set-up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings.”*

In this current appeal, while the Plaintiff adhered in part to his pleadings, by failing to consider evidence in relation to succession the Trial Magistrate allowed the Plaintiff build a case entirely based upon ownership. Furthermore, in building the case for ownership, the Plaintiff did materially deviate from pleading at one point that the suit property was his as a beneficiary to the estate to pleading that he had received the same as a gift inter vivos during the lifetime of his father.

In the Plaint, the Respondent stated in Paragraph 4 that he brought the suit as a son and beneficiary to the estate of the late Masereka Yeremia Sibathonga. He then stated at Paragraph 4(iii) concerning the land that it belonged to the estate of the deceased and it was his part allocated to the Plaintiff as his share from the estate and family ancestral generation land. All the claims about the land in the Plaint consistently referred to ownership by virtue of succession. Even in the Plaintiff’s witness statement he stated that the suit land was given to him by his late father as his share in the estate. The statement was therefore to the effect that the land was bequeathed to him. It is only at the point of seeking declarations that the Plaintiff sought to establish ownership in his own right.

In light of the above, it is clear to me that the Plaintiff’s pleadings were obviously contradictory in this regard and the Trial Magistrate ought to have resolved the contradiction before pronouncing himself. This contradiction was all the more apparent in the witness statement of the Plaintiff’s mother Esteri Mwambu who testified as PW2. She stated that she and her husband gave the Plaintiff the suit land as gift from their estate when he got married. Ordinarily I would have treated this reference to an estate to simply denote or describe land holdings in the simple English context but the reference took on a legal meaning under Succession law the moment the Plaintiff pleaded his cause of action to involve succession.

This ground therefore succeeds in part.

**Grounds 3 and 4:**

**- The Learned Trial Magistrate erred in law and fact when he failed to conduct a locus in quo visit which occasioned a miscarriage of justice.**

**- The Learned Trial Magistrate erred in law and fact when he sent the Court Clerk to the locus in quo and ignored the findings therefrom which occasioned a miscarriage of justice.**

Counsel for the Appellants contended that the Learned Trial Magistrate was not present for the locus visit as there was no indication on any of the documents related to the locus visit that the Magistrate was actually in attendance. Counsel for the Respondents argued to the contrary and submitted that the Trial Magistrate had been in attendance alongside himself and Counsel Innocent Nyote, the Court Clerk and various other parties.

However, as I already discussed in the joint resolution of Grounds 1, 5, 6, 7 and 8, and more specifically grounds 6 and 7 there was no proper record of proceedings concerning the locus in quo beyond the attendance list and the sketch map. The attendance list makes no mention of the Trial Magistrate and there is no indication on the sketch map either of the presence of the Trial Magistrate. Overall, I find that even if for argument’s sake it were to be assumed that the Trial Magistrate was present, the absence of a proper record of proceedings within the parameters specified under the Practice Directions cited above rendered the entire locus visit a waste of time. This is because there is no way to determine how witness testimony was evaluated and tested for accuracy at the locus visit. I therefore find that to the extent that there was no proper record of proceedings at the locus, and also the fact that the attendance list and sketch map did not have any endorsement or mark attributable to the Trial Magistrate, Ground 3 succeeds.

As concerns the ignoring of findings from the locus visit this was equally addressed in the discussion of Grounds 6 and 7. I found that the Trial Magistrate ignored major inconsistencies and arrived at a wrong conclusion based on a balance of probabilities and the same would apply here in determining that there was a miscarriage of justice arising from the impugned locus visit. I find therefore that Ground 4 partly succeeds as the findings apparent on the sketch map were ignored. However, I find no basis to conclude that the Court Clerk conducted the locus visit. The only evidence thereof shows that a number of people inclusive of the parties and their witnesses were in attendance at the suit property on 27th February 2020. As concerns what transpired on the ground, there is nothing on record to support any of the conclusions drawn by the Trial Magistrate in relation to the visit.

**CONCLUSION:**

It is my finding that the appeal substantially succeeds on all the Grounds except Grounds 2 and 4 that I determined as partially succeeding. In the circumstances, an order for retrial would be appropriate given the substantial discrepancies I have outlined in this matter. However, I note though that with regard to the question of ownership of the land all the Appellants testified in the lower court as having no interest in the land. Instead they all testified that the land belonged to one Mwami Amiza, who was not sued as a co-defendant in the lower court. To that extent, any order for a retrial in this matter will be academic and to that extent, I shall restrict my orders in this matter as follows.

**ORDERS:**

1. The Judgment and Decree in Bwera Magistrate Court KAS-02-CV-CS-LD No. 23 of 2017 is hereby set aside. 2. Costs of the appeal and the lower court are awarded to the Appellants.

I so order.

**David S. L. Makumbi**

**JUDGE**

**24/05/24**