Mwongyera v Kwefuga (Civil Appeal 60 of 2021) [2023] UGHC 374 (6 June 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA HIGH COURT CIVIL APPEAL NO. 60 OF 2021 (ARISING FROM SEMBABULE CIVIL SUIT NO. 16 OF 2020) MWONGYERA FRANK :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

**KWEFUGA ISREAL :::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **JUDGMENT**

## **BACKGROUND**

The Respondent instituted Civil Suit No. 16 of 2020 against the Appellant for trespass on the suit land, damages among other reliefs.

The Appellant vehemently denied the Respondents claims and instead claimed that the Respondent's area he currently occupies was a result of an earlier erroneous survey from which the parties were advised on their respective boundaries by surveyors.

The trial Magistrate who heard the parties found for the Respondent, held that the Appellant trespassed on the Respondent's land. He awarded the Respondent UGX. 5,000,000/= and costs of the suit.

The Appellant was dissatisfied with the decision and orders of the trial Magistrate and thus the instant appeal.

### **Representation**

.

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

The Respondent was represented by **Mr. Tusingwire Andrew**.

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

1. The trial Magistrate erred in law and fact when she held that the Appellant was a trespasser.


2. The trial Magistrate erred in law and in fact when she failed to properly evaluate the evidence on record regarding the erroneous creation of boundaries of the suit land and the Appellant's land done by the government surveyor and the Respondent's surveyor.

3. The learned trial Magistrate erred in fact and law when he awarded general damages to the respondent.

4. The learned trial Magistrate erred in law when he condemned the Appellant to pay costs of the suit.

5. The learned trial Magistrate erred in fact and law when he ordered for the appellant's eviction from the suit land without compensation for his developments.

#### **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-appraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon subject to the caution that I did not see, hear, or observe the witness.

#### **APPELLANT'S SUBMISSIONS**


#### **Grounds one and two**.

The Appellant submitted that he did not trespass on the suit land but that in 2012, upon the Respondent's complaint to the local leadership, the leaders and the Respondent brought surveyors who made a joint survey. That according to the survey, a common boundary between the parties' lands was identified.

The Appellant further submitted that in 2020 when UNRA opened up the boundaries, it found that either party had trespassed on the other's land. That it's against this background that the Respondent instituted the suit from which this appeal emanates in the Sembabule Chief magistrates court.

The Appellant maintains that the trial magistrate made an erroneous finding that he trespassed on the Respondent's land. He supports this claim with the evidence in Dw3's witness statement in paragraphs 2, 5, 6,7,8,9 and 11.

On Ground 3; the Appellant submitted that the trial magistrate erred when he granted the Respondent general damages of UGX. 5,000,000/=. He argues that the award was erroneous for lack of substantial proof of the loss suffered.

Grounds 4 and 5; the Appellant argued that the trial magistrate erred when he ordered for his eviction without prior compensation. The Appellant heaped the blame for the error of overlapping boundaries on the District staff surveyor and the Respondent's surveyor. He also expressed a willingness to vacate the Respondent's land but criticized the trial magistrate for having omitted to direct the Respondent to compensate him for his banana plantation that he stands to lose.

On the award of costs, the Appellant argued that the trial magistrate ought to have exercised his discretion under S.27 of the Civil Procedure Act judiciously not to award costs in the circumstances of this case.

#### **RESPONDENT'S SUBMISSIONS**

#### **Ground one and two.**


The Respondent submitted that the Appellant came onto the suit land in 2013 with police, the RDC and other authorities, surveyed the land and fenced it off. That he reported the matter to several authorities without help which prompted him to institute the civil suit from which the instant appeal emanates.

The Respondent submitted that the Appellant admits to be in possession of his land with the guidance of a survey that is disputed by the Respondent. The Respondent argues that at the time the Respondent fenced off his disputed part of the land, it had on it a Kraal and a banana plantation and that this was alluded to by the Appellant's own witness, Dw2.

On the basis of the above, the Respondent prayed that this court be pleased to uphold the Judgment of the trial Magistrate.

On ground 3; damages: The Respondent submitted that DW2 and DW3 having confirmed that there was a Kraal and a banana plantation at the time of the Appellant's trespass from which the Respondent has not benefited over the years, the award of damages was appropriate.

On grounds 4 and 5; The Respondent submitted that the trial magistrate made no error in awarding him costs and that the Appellant will incur no loss when he vacates the land that does not belong to him.

#### **DETERMINATION OF COURT**

I have carefully examined the submissions of the parties and the record of the trial court and below are my findings on the grounds of appeal before this court.

- *1. The trial Magistrate erred in law and fact when she held that the Appellant was a trespasser.* - *2. The trial Magistrate erred in law and in fact when she failed to properly evaluate the evidence on record regarding the erroneous creation of boundaries of the suit land and the Appellant's land done by the government surveyor and the Respondent's surveyor.*

Counsel argued grounds 1 and 2 jointly.

This court is unable to rely on DW3's testimony on the boundary opening that he allegedly executed in 2012 on the suit land because it's details were never recorded down in a survey report. Dw3 was specifically asked as to whether he made a survey report as to his findings in 2012 and he stated that he did not. We cannot confirm merely by word of mouth as to what findings and conclusions were arrived at in 2012 nor that such survey was ever made.

This court is left in doubt as to whether Dw3, the District surveyor who ordinarily undertakes several surveys could remember the exact measurements of trespasses by either party as per his alleged undocumented survey of 2012. This date being eight years from the date he gave his evidence by way of witness statement on 13th October 2021.

During cross examination by Counsel Tusingwire, Dw3 categorically stated that he had since made another report on the suit land and found that the Appellant/then Defendant was occupying a part of the Plaintiff's land.

Owing to the above findings on the record, this court finds that grounds 1 and 2 must fail. They are accordingly answered in the negative.

I will address grounds 3, 4 and 5 jointly.


3. *The learned trial Magistrate erred in fact and law when he awarded general damages to the respondent.*

*4. The learned trial Magistrate erred in law when he condemned the Appellant to pay costs of the suit.*

*5. The learned trial Magistrate erred in fact and law when he ordered for the appellant's eviction from the suit land without compensation for his developments.*

General damages will ordinarily be awarded to a claimant as way to compensate him or her for the inconvenience suffered owing to the defendant's wrongs and at the discretion of court. *See The Hon. Mr. Justice Musa Sekaana in HCCS No. 366 of 2017 Luzinda Marion Babirye vs. Ssekamatte Samuel & Ors.* This court is satisfied that the Appellant/Plaintiff was inconvenienced by the Defendant/Respondent and that he was rightly awarded him UGX. 5,000,000/= (Uganda Shillings Five Million Only) in general damages because Dw3 testified that in his later survey he found that the Appellant was occupying a part of the Respondent's land. Clearly, the Respondent was deprived of use of his land for which he was rightly compensated UGX. 5,000,000/=.

In respect to grounds 4 and 5, this court finds no lawful excuse for the Appellant's trespass on the Respondent's land. Whereas both parties contend that the banana plantation on the suit land is theirs, Dw2 testified that at the time they went for boundary opening in 2012, the Plaintiff had a Kraal on the suit land. Whether or not it's the Appellant who later established the banana plantation on the suit land, the Respondent who as stated by Dw2, had a Kraal on the suit land was definitely inconvenienced by the Appellant's trespass which necessitated the filing of the instant suit to correct the wrong. I find no justification for criticizing the trial Magistrate for his order of eviction without compensation.

The award of costs was also appropriate in the circumstances of this case because the institution of the suit in which the Respondent hired counsel to prosecute his suit would never have been necessary, had it not been for the Appellant's tort of trespass. As for the Appellant's claim of overlap of lands, this is a disguised counterclaim that was never set up at the trial. This court cannot now make a finding on the same. The purpose of a counter claim is enable the defendant to cross claim and entitle him/her to an award or reparations for injury suffered, if at all. In the absence of the counterclaim, the only entitlement to the defendant who was wrongfully sued, is dismissal of the suit. In the instant case, court has found positive evidence of the Appellant's trespass. *Court ought to restrict itself to matters which were pleaded and not to grant reliefs*


# *never sought by the parties. See Fang Min & Crane Bank Limited vs. Belex Tours and Travel Limited SCCA NO. 06 of 2013*

Most importantly, the Respondent testified that when the overlap was discovered, he invited the Appellant to take possession of his land. This option was and is still available to the Appellant to date.

In conclusion, grounds 3, 4 and 5 also fail, the Judgment and orders of the trial Magistrate are hereby upheld and the Appeal is dismissed with costs to the Respondent.

Orders:

- 1. The Judgment and Orders of His Worship Oburu Morris Ezra are upheld. - 2. The Appeal is dismissed with costs to the Respondent.

Dated at Masaka and delivered electronically this 6th day of June, 2023.


**VICTORIA NAKINTU NKWANGA KATAMBA JUDGE**