Mwesigwa v Namuganga (Civil Appeal 34 of 2021) [2023] UGHC 407 (8 August 2023)

## **THE REPUBLIC UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **CIVIL APPEAL NO. 34 OF 2021**

# **(ARISING FROM THE CHIEF MAGISTRATE'S COURT OF RAKAI LAND CAUSE NO. 31 OF 2019)**

**MWESIGWA SSEGONA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

## **VERSUS**

**NAMUGANGA NORAH SSEBUDDE :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **JUDGMENT**

## *Before the Hon. Lady Justice Victoria N. N. Katamba*

## **BACKGROUND**

The Respondent instituted Civil Suit No. 31 of 2019 against the Appellant for a declaration that he is a trespasser on a part of a Kibanja comprised in Lwabbanda LC1, Ddwaniro parish, in Dwaniro subcounty – Rakai District, a permanent injunction restraining the defendant/now Appellant from further trespass among other orders.

The Respondent categorically stated that the Appellant did not claim the part of her Kibanja in use but the other part on the hill that is not yet in use but was then occupied by a bush.

The Defendant who was unrepresented denied the Respondent's claims in the suit and asserted that the Respondent's Kibanja did not stretch as to cover the part with the hill. That the Respondent's Kibanja stops where the hill begins and that the hill is part of the Appellant's Kibanja. The defendant further stated that he had been in possession of the same since 1990.

The learned trial Magistrate who heard the case found that as pleaded by the Respondent in her plaint and in accordance with the Will of the Late Matovu Eria Mukooki, the suit land belonged to the Respondent. The trial Magistrate further found that the Appellant was a trespasser, condemned him to pay general damages of UGX. 1,500,000/= and costs of the suit.


The Defendant/Appellant was dissatisfied with the findings of the Learned Trial Magistrate and thus instituted the instant appeal.

#### **Representation**

The Appellant was represented by M/s Lukaawa &Co. Advocates

The Respondent was represented by M/s Mbeeta, Kamya & Co. Advocates

At institution of the Appeal, the Appellant raised Five grounds of appeal to wit;

- *1. The learned trial magistrate erred in fact and law when he based his decision on plaintiff's exhibit No. 2 (PEII) calling it a will yet it was not a will in law.* - *2. The learned trial magistrate erred in fact and law when he failed to take into account the evidence of DW2 Kajwaya Copuliyano and DW3 Nabukenya Jane who knew the extent of the suit kibanja.* - *3. The learned trial magistrate erred in fact and law when he held that the suit kibanja belonged to the Ssebudde.* - *4. The learned trial magistrate erred in law and fact in holding that the appellant was a trespasser.* - 5. *The learned trial magistrate erred in law and fact when he failed to properly carry out the locus in quo-visit and further erred in evaluation of evidence on court record regarding the boundaries of the late Ssebudde's kibanja thereby reaching an erroneous decision*.

The parties filed written submissions in this appeal and the same have been considered for the writing of this Judgment.

## **APPELLANT'S SUBMISSIONS**

## **Ground one.**

It was submitted for the Appellant that the impugned document was introduced in evidence by the Respondent who testified as PWI and she tendered it in court as an identification document and was marked as P1D1. That she stated that it proved her ownership of the suit Kibanja/land.


The said document was later tendered in as an exhibit and marked as PEX2 by PW2, Matovu Moses, who confirmed that it was his father's will.

The Appellant submitted that the trial Magistrate relied on the said will as the *most important piece of evidence so far in the case. The same being the will left behind by Matovu Eria Mukooki admitted as PE11 or Plantiff Exhibit No. 2.*

The Appellant argued that the impugned document is not a will for non-conformity with *Section 50 (c) of the Succession Act* which provides that in order for a will to be valid, it has to be signed by the testator and attested to by at least two attesting witnesses. It was argued for the Appellant that the purported will is not a will because it does not comply with the above legal provisions and the trial magistrate was wrong to base his judgment on such a document calling it a will yet it was not.

The Appellant further argued that *section 67 of the Evidence Act* prohibits court from relying on alleged wills as evidence until one attesting witness has been called to prove it, which was never done in this case.

On the basis of the above submissions, the Appellant invited this court to find that the trial magistrate was wrong in that regard and uphold the 1 st ground of appeal.

## **Grounds 2 and 3:**

*Two: The learned trial magistrate erred in fact and law when he held that the suit kibanja belonged to the SSubudde*

*Three: The learned trial magistrate erred in fact and law when he failed to take into account the evidence of DW2 Kajwaya Copuliyano & DW3 Nabukenya.*

The Appellant argued that it is a cardinal principle of law that before arriving at any decision, a court of law is duty bond to evaluate evidence adduced by both parties in order to arrive at a fair and just decision.

The Appellant argued that a close look at the judgment clearly demonstrates that the learned trial magistrate only considered the evidence of the plaintiff and never bothered to evaluate the clear


and cogent evidence of the defence witnesses. The witnesses were *DW2 Mr. Kajwaya Copuliyano* who stated that he was a brother to the late Ssebudde and that he was present when Eriya Mukooki was showing Ssebudde the kibanja to settle on and that it stopped at a cattle path and did not include a hill. That he stated that those present were Eriya, Nabukenya (Dw3) and himself.

The Appellant further argued that DW2's evidence was corroborated by that of *Dw3, Nabukenya Jane* who testified that her grandfather Tibagalana gave a piece of land to Yosam Ssebudde. That it was Eriya who showed him the said land and that it was in 1971 in June and that Kajwaya Copuliyano (Dw2) was also present. She further clarified that the land given to Ssebudde stopped at a cattle path.

## *Ground 5:*

The Appellant submitted that the record of proceedings demonstrates that the trial court failed to conduct the locus visit in accordance with the established procedure.

The Appellant relied on the authority of *David Acar & 3 others Vs Alfred Acar Aliro (1982) HCB 60 at page 61 in which the Hon. Justice Alfred Karokora* stated thus:

*"In fact the purpose of the locus in quo is for the witnesses to clarify what they had stated in evidence in court. So when a witness is recalled to show or clarify what he had stated in court, he must do so on oath. The other party must be given an opportunity to cross examine him. The same opportunity must be extended to the other party. Any observation by the trial court must be recorded down and must form part of the proceedings."*

The Appellant criticized the learned Trial Magistrate for having faulted the guidelines and in particular raised the concerns below;

- Witnesses were never sworn or reminded that they were still on oath. - Parties were never given a chance to call their witnesses to clarify what they stated in court neither were they given any chance to cross examine the witnesses for the opposite side. - The record only shows a sketch diagram which one can't tell how did the trial court arrive at it.


- Court turned the hearing at locus into a public meeting where public opinion was sought because the record bears views of people who attended the meeting and were not witnesses in court and were never sworn such people include Mzee Mugenyi Edward, Kigona Annet, Tumwesigye Wilson and Masagazi Livingstone.

The Appellant thus invited this court to find that the locus visit was not carried out in accordance with the law and the established procure.

## **Ground 4:**

The Appellant submitted that since the suit kibanja did not form part of the Ssebudde's kibanja, it was wrong for the trial court to find that the defendant was a trespasser.

The Appellant submitted that the evidence on record demonstrates that, the entire land from which a portion is now disputed belonged to the late Tigabalana Nathaniel who was the father of Eria Mukooki.

That the defendant/Appellant was a grandson of Tigabalana Nathaniel and Eria Mukooki was a brother to his father and thus his uncle. The Appellant testified that his father died when he was still young and was brought up by his uncle Eria Mukooki and when he grew up his uncle handed to him his kibanja which included the portion in dispute before court which the Ssebuddes wanted to grab.

In conclusion, the Appellant submitted that since he had demonstrated that the suit kibanja did not belong to the Ssebuddes, he did not trespass on it and that the trial magistrate erred in holding that he was trespasser.

The Appellant prayed that the appeal be allowed with the following orders:

- (a) An order setting aside the judgment and orders of the trial court. - (b) An order dismissing the respondent's suit in the lower court. - (c) An order awarding costs to the appellant of this appeal and in the lower court.


# **RESPONDENT'S SUBMISSIONS**

# **Ground 1.**

The Respondent submitted that Exhibit No.2 (PEX2) and PW2 MOSES MATOVU's evidence was not challenged by the appellant either in cross-examination or in his evidence in chief, and that the same was admitted by the very Appellant.

The Respondent relied on the case *of URA VS. STEPHEN MABOSI SCCA NO.26 of 1995, Karokora JSC* as he then was held that,

*"an omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination lead to the inference that the evidence is accepted subjected to its being assailed an inherently credible or probably true*"

Based on the above authority, the Respondent argued that raising the impugned admission of the will and reliance on it is an afterthought who already admitted it and its contents in cross examination.

# *Grounds 2 & 3*

*The learned trial magistrate erred in law and fact when he failed to take into account the evidence of DW2 Kawjwaya Copuliyano and DW3 Nabukenya Jane who knew the extent of the suit kibanja.*

# *The learned trial magistrate erred in fact and law when he held that the suit kibanja belonged to the late Ssebudde*

The Respondent submitted that the Appellant failed to defend the suit and that the trial Magistrate found that she had proved her case to the required standard on the balance of probabilities through the will that was relied on.

# *Ground 4.*

# *The learned trial magistrate erred in law and fact in holding that the appellant was a trespasser.*

The Respondent supported the findings of the learned trial magistrate and asserted that he rightly held that the appellant was a trespasser on the suit kibanja.


The Respondent submitted that the evidence on record demonstrates that the learned trial magistrate evaluated it correctly and came to the conclusion that the suit kibanja forms part of the estate of the late SSEBUDDE and not TIGABALANA MATHANIEL.

The Respondent further argued that the Appellant's conduct of chasing her cattle and cutting grass from the suit kibanja thereby interfering with her quiet possession amounts to trespass and that this court should find that there is no merit in this ground of appeal.

## *Ground 5:*

The Respondent submitted that according to Section 70 of *The Civil Procedure Act*, no decree may be reversed or modified for error, defect or irregularity in the proceedings, not affecting of the case or the jurisdiction of the court.

The Respondent argued that whatever errors and omissions, if any, that were done at locus visit did not occasion a miscarriage of Justice and that the same can properly be cured by Article 126(2)e of the Constitution of Uganda.

# **DETERMINATION OF COURT**

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions was as stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Tibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

*Ground one: The learned trial magistrate erred in fact and law when he based his decision on plaintiff's exhibit No. 2 (PEII) calling it a will yet it was not a will in law.*

I have had opportunity to examine PEX2, originally admitted on the record of the trial court as PID2. The document is neither in the language of court nor was it witnessed by two attesting witnesses as required by S.50 of the Succession Act Cap. 162.


I do not agree with the Respondent that merely because the record captured the then unrepresented Appellant as having admitted the will and its contents as a clear licence for the trial magistrate to rely on it as the basis for his decision.

This alleged will was not only incapable of being proved as required by S.67 of the Evidence Act but is not a will in the first place for non-conformity with the requirements of S.50 of the Succession Act.

The court as the expert of the law, had a duty to prevent admission of "evidence" that falls short of the required standard from being admitted on its record. The reliance on the impugned piece of evidence as a basis for its decision is absurd and a clear misdirection of the court.

Moreover, the Appellant's alleged admission of the will and its contents was not unequivocal because at page 13 line 10, he categorically stated and I quote, *"The description of my kibanja is misinterpreted by you in the will."*

An admission must be unequivocal for the court to rely on it. *See Kibalama vs. Alfasan Begie CVBA (2004) 2 EA 146*.

Lastly, I have had an opportunity to peruse the URA vs. Mabosi case which was cited though not attached to the Respondent's submissions and I find it's facts are distinguishable from those of the instant case. In the Mabosi case, the Supreme Court was not faced with inadmissible evidence on the record of court or a matter of law as it is in the instant case. The court was dealing with a matter of fact that was introduced at submission stage yet the oral testimony of a witness on the mode of transport and the size of the room stores where the seized oil had been kept had not been challenged at the hearing in cross examination. I find that reliance on Mabosi inappropriate.

In conclusion, this ground is hereby allowed.

Grounds two and three were are argued together.

2. The learned trial magistrate erred in law and fact in holding that the appellant was a trespasser.

3. The learned trial magistrate erred in law and fact when he failed to properly carry out the locus in quo-visit and further erred in evaluation of evidence on court record regarding the boundaries of the late Ssebudde's kibanja thereby reaching an erroneous decision.he argued jointly:


*Ground two; The learned trial magistrate erred in fact and law when he failed to take into account the evidence of DW2 Kajwaya Copuliyano and DW3 Nabukenya Jane who knew the extent of the suit kibanja.*

# *Ground three; The learned trial magistrate erred in fact and law when he held that the suit kibanja belonged to the Ssebudde.*

Dw2- Kajjwaya Copuliyano, testified that he was 80 years old and a resident of Kansumba village, Dwaniro subcounty, Rakai and that he knew the history of the land. He testified that Tibagalana never gave out the hill. That Tibagalana never sold the land to Ssebudde but only asked him for a kanzu of UGX. 2000/= He further testified that the land beyond the cattle path remained for the land owner yet the Plaintiff/Respondent had dug past the cattle path. He testified further that he was surprised to hear that Ssebudde had exceeded the cattle path and that Tibagalana never gave out the hill. This testimony was remained unchallenged.

Dw2's evidence was corroborated with that of Dw3, Nabukenya Jane who testified that she was 67 years old. She testified that the contention between the parties is on who owns the hill. She testified that Tibagalana did not give out the hill.

I agree with the Appellant that the trial Magistrate erred in omitting to take into account the testimony of Kajjwaya and Nabukenya above and thereby misdirected himself in arriving at an erroneous conclusion that the suit kibanja belonged to the Respondent.

Ground 4 and 5:

- *1. The learned trial magistrate erred in law and fact in holding that the appellant was a trespasser.* - 2. *The learned trial magistrate erred in law and fact when he failed to properly carry out the locus in quo-visit and further erred in evaluation of evidence on court record regarding the boundaries of the late Ssebudde's kibanja thereby reaching an erroneous decision*.

These two grounds have substantially been answered in resolution of the earlier grounds of appeal. The learned Trial Magistrate clearly misdirected himself in relying on a document which he


referred to as a will whereas it was not. The Appellant's witnesses ably testified that the suit Kibanja was never given to Ssebudde by the original owner.

The Respondent could not therefore, successfully claim that the Appellant (a grandchild) of the original owner (Tibagalana) was a trespasser on the suit land (the hill)

I also find that the learned Trial Magistrate erred when he allowed persons who had not been called as witnesses at the trial to testify. This however did not go the root of propriety of his Judgment because such testimony was not relied on to form a basis for the decision.

In conclusion, the appeal hereby succeeds and the Appellant is awarded costs of the trial court and this court.

Orders:

- 1. An order issues setting aside the Judgment and orders of the trial court. - 2. An order issues dismissing the Respondent's suit in the lower court. - 3. The Appellant is awarded costs of this appeal and in the lower court.

Dated and delivered electronically this 8th day of August, 2023.


# **VICTORIA NAKINTU NKWANGA KATAMBA**

**JUDGE**