Namunyala v Mafabi and Another (Civil Appeal 33 of 2021) [2024] UGHC 609 (27 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE CIVIL APPEAL NO 33 OF 2021 (ARISING FROM CIVIL SUIT NO. 19 OF 2014)

## NAMUNYALA SAMWIRI :::::::::::::::::::::::::::::::::::

#### **VERSUS**

MAFABI ERIASAT

2. WABUSA ENOK ::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. LADY JUSTICE MARGARET APINY 10

#### JUDGMENT

#### Background.

This is an appeal from the decision of His Worship Kitiyo Patrick, the Magistrate Grade One of the Chief Magistrates Court of Sironko, dated 2nd March 2021. The appellant instituted a suit in the Chief Magistrates Court of Sironko against the respondents jointly and severally for vacant possession, permanent injunction, general damages and costs of the suit.

It was the appellant's case that he and the 1st respondent exchanged pieces of land in March 2013 and he took possession of the land which was formerly the 1st respondent's and viceversa. The 1st respondent is in possession of the said land and enjoys quiet possession to date. At the beginning of 2014, the 2nd respondent interfered with the plaintiff's possession of the land, thus exchanged, trespassed upon the land and has kept doing so at the plaintiff's great loss and detriment.

That the 1st respondent is aware of the 2nd respondent's unlawful actions, but has ignored, failed or and refused to restrain him being his biological son and is in connivance with the 2nd respondent to defraud him.

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In their joint statement of defence filed on 19th May 2014, the respondents denied liability and contended that the exchange was illegal since the 1st defendant at the time of the alleged exchange was of advanced age of 90 years and had just been discharged from Mbale Modern Medical Centre where he was diagnosed with cerebral malaria. It was contended further by the 2nd defendant that the plaintiff did not obtain the children's and spouse's consent.

At the trial, three issues were framed for determination by court to wit; whether the parties willingly exchanged their respective pieces of land, who is in possession of the suit land and remedies available to the parties. The plaintiff led evidence of four (4) witnesses while the defendant led evidence of three (3) witnesses. Court visited the locus in quo and at the conclusion of the trial, court rendered judgment in favour of the respondents.

Being dissatisfied with the decision and orders of the trial magistrate, the appellant appealed to this court on the following grounds;

- 1. That the trial magistrate erred in law and fact when he failed to scrutinize and evaluate the evidence on record properly and thus arrived at a wrong decision. - 2. That the Learned trial magistrate erred in law and fact when he refused to consider documentary and oral evidence of the appellant. - 3. That the learned trial magistrate erred in law and fact when he conducted the visit to the locus in quo in a haphazard, perfunctory and biased manner. - 4. The learned trial magistrate has occasioned a miscarriage of justice.

#### Representation

At the hearing of the appeal, the appellant was represented by Musambwa William who by letter dated 22nd March 2023 withdrew from the conduct of this appeal while Mr. Gyabi James represented the respondents.

When the appeal came up for hearing, the court issued schedules for parties to file their submissions. It should however be noted that the appellant did not file his written submissions in support of his appeal. Nevertheless, court proceeded to handle the appeal by considering the evidence on record.

#### Respondent's submissions

Counsel for the respondent argued grounds 1 and 2 together and grounds 3 and 4 separately.

### Grounds 1 and 2

- 1. That the trial magistrate erred in law and fact when he failed to scrutinize and evaluate the evidence on record properly and thus arrived at a wrong decision. - 2. That the Learned trial magistrate erred in law and fact when he refused to consider documentary and oral evidence of the appellant. - Counsel for the respondent supported the decision of the trial magistrate and agreed that the 60 trial magistrate clearly evaluated the evidence on record and arrived at a just decision in holding that the plaintiff failed to prove his case on the balance of probabilities that the defendant willingly exchanged the suit land with that of the plaintiff.

Counsel submitted that the appellant in his evidence found at pages 8 to 13 of the record claimed that he lent a total of shillings 1,600,000/ to the 1st defendant for payment of legal fees and that upon failure to pay, he reported to LC1 Makhonge. That in his evidence, the appellant contended that the 1st defendant/respondent gave him an initial piece of land equivalent to shillings 1,000,000/, money the plaintiff claimed he had given to the 1st defendant to pay for legal fees. According to counsel, the appellant further testified that the 1st respondent later gave another piece of land equivalent to shillings 600,000/ which he advanced to him for payment of the court brokers and that an agreement of exchange had been executed between the 1st respondent and himself.

Counsel's argument is that the evidence of PW2, PW3, PW4 and PW5 to the effect that they attended a meeting on 30th March 2013 in which the plaintiff/ appellant and the 1st defendant/respondent mutually agreed to exchange their respective pieces of land contradicts the appellant's narrative that he acquired the suit land by way of compensation for the money lent to the 1st respondent.

On the claim that the trial magistrate refused to consider the appellant's oral and documentary evidence, counsel argued that the trial magistrate could not because it was full of contradictions and unbelievable. That the agreement of exchange could not be considered since it was not tendered in evidence. That whereas PW1, PW3, PW4 and PW5 testified that an agreement of exchange was executed, PW2 testified at page 15 lines 7-9 that an agreement was to be made after the meeting but that it was never done.

Counsel further submitted that whereas PW2 and PW5 testified that PW2 Mayeku Ahmed and PW3 Magomu James were the Secretary and chairperson of the meeting respectively, it was contradicted by the evidence of PW4 that PW3 was the Secretary. That the evidence of PW2 the chairperson LC1 and PW4 that the venue of the meeting was at the home of PW4 contradicts the evidence of PW3 who testified that the meeting was at the home of the chairman Wamboga Stephen and that PW3, PW4 and PW5 contradicted themselves as to where the agreement of exchange was made. Counsel argued that in the absence of the agreement of exchange on record, PEX1 is of no evidential value. He concluded that the trial magistrate evaluated the documentary evidence and rejected it with reasons for the same.

According to counsel, the respondent's evidence was straight forward, truthful and unchallenged. He denied exchanging his land with the appellant. He was called to the meeting at a drinking joint on allegations that the plaintiff/appellant had sued him over money issues where he was forced to sign an agreement of exchange which he did not understand since it was in English and that he was also ill and the illness had impaired his judgment. That 1st

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respondent's evidence was corroborated by DEX1 and DEX2, medical proof that his illness affected his mental faculties. Counsel maintained that whereas the trial magistrate did not consider the agreement of exchange in the judgment, any appellate court reviewing the evidence afresh and in light of sections 2 and 3 of the Illiterates Protection Act would reject the same. Counsel submitted that the appellant is bound by his pleadings and cannot deviate from them. He relied on the authority of Interfreight Forwarders (U) Ltd Vs EADB SSCA 33 of 1993, which is to the effect that a party is expected to prove the case as alleged by him and as covered in the issues framed, he will succeed or not succeed on a case not set up by him and not be allowed at the trial to change his case or set up a case inconsistent with what is alleged in the pleading except by way of an amendment of his pleadings.

Counsel contended that the appellant had pleaded in paragraph 4 (i) of the plaint that he and the 1st respondent by consensus exchanged their respective pieces of land situated at Makhonge cell, Mahempe ward, Sironko Town Council, but changed during his testimony that the 1st respondent gave him an initial piece of land equivalent of shillings 1,000,000/, which had been given to the 1st respondent to pay for legal services and that a second piece of land equivalent to shillings 600,000/ was given to the 1st respondent for payment of the court bailiff.

Counsel argued that the evidence that the appellant acquired the suit land by compensation for money due and owing by the 1st respondent is a departure from the pleading that the appellant and the 1st respondent mutually exchanged their respective pieces of land. He relied on the case of Standard Chartered Bank vs Grand Hotel Ug Ltd CACA No. 13 of 1993 to support his contention.

That the learned trial magistrate erred in law and fact when he conducted the Ground 3: visit to the locus in quo in a haphazard, perfunctory and biased manner.

Regarding ground 3, counsel contended that the appellant did not substantiate his grievances about the conduct of the locus visit by the trial magistrate. It was counsel's argument that the

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trial magistrate did make reference to the visit which to him was supported by the fact that court visited locus twice.

Ground 4: The learned trial magistrate has occasioned a miscarriage of justice.

Counsel for the respondents submitted that the appellant did not demonstrate that the trial magistrate misdirected himself on evidence relating to the suit land. He confirmed that the trial magistrate appreciated and weighed the entire evidence and rejected the appellant's case as being untruthful and contradictory. He further agreed that the trial magistrate was justified to hold that the appellant failed to prove his case on a balance of probabilities that the defendant willingly exchanged with that of the appellant. That no miscarriage has been occasioned to the appellant and this ground should therefore fail.

He reiterated her earlier prayers that the appeal be dismissed with costs and the orders in the lower court upheld.

#### **Determination of Court**

### Duty of the first appellate court

The duty of the first appellate court was emphasized in the case of Kifamunte Henry Vs Uganda SCCA No: 10 of 1997 where it was held that the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. In Pandya Vs R (1957) EA at 336, Bacon J emphasized that the appellate court cannot excuse itself from the fact of conflicting evidence and drawing its own inferences and conclusions although it always bears in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. With the above in mind, I have reviewed the record and the submission of counsel for the

respondents' vis-avis the grounds laid out in the memorandum of appeal. This court will therefore consider the grounds of appeal as set out by counsel for the respondents.

The legal principles regarding the duty and obligation of this court as a first appellate court are taken into account while considering this appeal. The appellant raised four grounds of appeal. This court will handle the grounds as presented by counsel for the respondents, that is, grounds 1 and 2 together and grounds 3 and 4 separately.

In Kasozi Lawrence versus Uganda SCCA No.13 of 2009, it was held that there is no formula for evaluating and re-evaluating evidence but it depends on one's style and such does not amount to an error leading to a miscarriage of justice.

### Grounds 1 and 2

- 1. That the learned Trial Magistrate erred in law and fact when he failed to scrutinize and evaluate the evidence on record properly and thus arrived at a wrong decision. - 2. That the Learned Trial Magistrate erred when he refused to consider documentary and oral evidence of the appellant. - The appellant's case is that he acquired the suit land by way of an exchange with the 1st 160 respondent in 2013. The 1st respondent's case on the other hand is that he never at any one time willingly exchanged the suit land for another. He instead claimed he was coerced into signing and indeed signed a document he did not understand due to his ill health that had affected his mental faculties and also the fact that he is an illiterate old man of 90 years of age.

I have perused through the record of proceedings of the lower court and therein, PW1 (appellant) testified that he lent a total of Uganda shillings 1,600,000/- to the 1st respondent to enable him pay for legal services rendered for him. He further testified that on the failure of the 1st respondent to pay the said amount, he reported a case to the L. C.1 chairperson of

Makhonge Village. (See page 9 lines 7 -12 of the proceedings of the lower court). The 170 appellant further testified that the 1st respondent gave him an initial piece of land equivalent to Uganda shillings1,000,000/- which money the appellant had given the defendant to pay the lawyer. That the 1st respondent gave him another piece of land equivalent to Uganda shillings 600,000/- to pay the court bailiff/court broker and that an agreement of exchange was executed between the 1st respondent and himself.

PW2 Ahmed Musa, a resident of Makhonge village, Mahepe ward, Sironko Town Council and LC1 chairman at Makhonje village testified that he knew all the parties to the suit. That in 2013 the appellant reported a case against the 1st respondent about a debt owed to him. He organized a meeting at his office wherein he invited the parties and Wabusa. That he is the one who requested that the matter be resolved at a clan meeting and the 1st respondent appointed Magomu James as one of the clan members to be the chairman. That the 1st respondent is the one who suggested the exchange in return for the money owed. He states that the exchange document was made on the same day of 30th March 2013 and that 2014 was a typing error. That they agreed to have one boundary and the chairman agreed and signed the minutes and 19 other people who attended the meeting also signed. That both parties were represented by their respective people. That the document was entered in as evidence and had a typing error as PEXH 1.

PW3, Magomu James, a resident of Bugimigu Village in Bubeza Parish in Buwalasi sub county in Sironko district testified that he knew the respondents. That the 1st respondent called him to join the issue between the appellant and Kafire's sons. He stated that the appellant was giving him money to use in a court case. The appellant asked him not to pay back the money but to instead give him a piece of land near his place in return. He went and informed the 2nd respondent about the said transaction and the 2nd respondent declined to partake.

That he later met the LC1 Mayeku Ahamed and they went to the LC1 chairman's place at the Centre. The appellant showed his land to the chairman and the 1st respondent did the same. That the plots of land were neighboring each other. That the 1st respondent told the appellant to take part of the land as his costs for the Uganda shillings 600,000/-. That the appellant requested that the land be measured which the 1st respondent refused wherein they exchanged the land and boundary marks were planted. He added that they later went back home to Eriasat's place and a document was read saying they had exchanged the land. That all this happened in 2013.

PW4 Stephen Wamboga, a resident at Makhonge Cell, Mahempe Ward in Sironko Town Council in Sironko district stated that he knows the 2nd respondent and that the 1st respondent is a neighbour and the 2nd respondent is the son of the 1st respondent. He states that he is aware of the meeting that took place and states that it took place at his home. That Mafabi appointed Magomu as chairman of the meeting and the 1st respondent appointed the LC1 chairman to record the minutes of the meeting. The 1st respondent is the one who requested for the exchange of the land and he was not sick. That the 1st respondent showed his nephew PW3 as a witness to the transaction and acknowledged that the sons were not present. That the meeting ended at 6:00 pm and they left for their homes.

PW5 Wangolobe Stanley Emmy stated that he knows the two respondents as residents of Buwalasi sub-county in Bunabujuko village in Babeza Parish in Sironko district. That in 2013 he went to the authorities in Makhonje to report his issues. When PW5 reached there, he found the 1st respondent and other people i.e. Magomu James, Magomu S/o late Kheri(brother to the 1st respondent) and another person from the late Wasukira were present. That the LC1 explained to him the case that the appellant had taken the 1st respondent about land and debt. He further stated that the 1st respondent accepted what the LC1 said and they resorted to conclude the matter at the clan level. The 1st respondent chose Magomu James who was from the clan to be his chairperson.

He further stated that when they reached Namunyala's land, he noticed they were sharing a 220 boundary on two pieces of land so they agreed to exchange and each one remains on their side independently. He testified that the 1st respondent's land was slightly bigger than that of the appellant. That a portion of the land was used to pay a debt that the 1st respondent owed to the appellant and an agreement was made for exchange where both parties signed.

It is evident that PW2, PW3, PW4 and PW5 all testified in support of the appellant. They all confirmed attending a meeting in 2013 in which the appellant and the 1st respondent mutually agreed to exchange their pieces of land. According to counsel for the respondents, the evidence of mutual exchange is contradictory.

I am in agreement with the submission of counsel for the respondents that the mutual exchange of land contradicts the narrative of the appellant that he acquired the suit land by way of compensation for the money lent to the 1st respondent. The evidence of PW2 and PW4 contradict each other as they do not seem to know where the exchange took place. It is not certain where the agreement for exchange took place. Moreover, there is no evidence that the agreement of exchange was tendered and received by the court.

In arriving at his decision, the trial magistrate concluded that the evidence of the appellant is full of contradictions and therefore should be treated with a "pinch of salt". I entirely agree with him. The learned trial Magistrate observed when he stated at page two (2) of his judgment thus;

"I have had the benefit of reading through all the parties' testimonies and that of their witnesses all on court record.

I have also had the benefit of reading through the documents like PEX1 dated 26/05/2016 on court's record, but originating from Makhonje cell Mahepe Ward, Sironko Town Council district dated 3rd but changed with a blue ink to read 30th March 2014,

# but again 4 inked with a blue ink to read 2013. Titled land dispute case held on 30th March 20013(2013)

<table>

Namunyala :::::::::::::::::::::::::::::::::::

### Versus

## <table> Mafabi Erasafi :::::::::::::::::::::::::::::::::::: Attached to this document which is typed is a photocopied handwritten attendance list with no mention by the party presenting it where the original is for authenticity *purposes*".[Emphasis added].

It is trite that if the contents of a writing are to be proved, the document must be proved by a witness who can attest to the accuracy and integrity of the documents. Section 64(1) of the Evidence Act, is to the effect that secondary evidence of a document is admissible where the original has been destroyed or lost and by virtue of section 62 (b) of the Evidence Act, secondary evidence of a private document is admissible where such copy is made from the original by mechanical process which in itself ensures the accuracy of the copy, and a copy compared with such copies.

It is evident that documentary evidence must be properly authenticated and a foundation laid before it can be admitted at trial. The rule on authentication before admissibility requires that any item offered as evidence which allegedly has a particular association with an individual, time, or place must be linked with that individual time, or place before or at any time of its admission and until the necessary connection is made, such evidence is irrelevant.

Courts are justifiably cautious when considering the admissibility of or weight to be attached to such secondary evidence of a document which has been destroyed while in possession of a person in whose favour it created an enforceable right or an obligation (See Lalwak v Opio Mark Civil Appeal No.78 of 2018 at page 12).

From the evidence on record and in the circumstances of this case, I find that the trial magistrate was correct in disregarding the secondary evidence provided by the appellant which appeared to have been altered and where the appellant did not provide sufficient evidence to prove the authenticity of such a document, the same ought not to be admitted and is indeed not admissible.

In NO. O875 Pte Wepukulu Nyuguli v Uganda SCCA No. 21 of 2021, the Supreme Court stated:

"It is trite law that minor inconsistencies unless they point deliberate untruthfulness on the part of the persecution witness should be ignored and that the major ones which go to the root of the case should be resolved in favour of the accused."

Further perusal of the evidence on record and documents thereto, reveals grave inconsistencies in the evidence of the appellant's witnesses. In the instant case, PW4 stated at page 20 lines 25-26 of the record of proceedings that the parties met from his place and 280 he was requested to use his house as his office (LC). On his part PW2, the LC1 chairperson of Makonje village testified at page 14 lines 9-14 of the record of proceedings that ...... "I organized for a sitting in my LC1 court so I informed Wabusa about it and he said they would come. So on 30th March 2013, the parties came with their relatives to my office when we sat, I looked at them we sat and requested them that I pull out of the case since it was more of a clan case. So Mafabi chose Magomu James one of their clan members to be the chairman for that meeting. The two parties accepted so I pulled out from being the chairman of the day. I requested to be the Secretary of the meeting and the two agreed. My work was to write what they discussed and agreed". PW2 testified in cross-examination at page 16 line 13 that the meeting took place at Wamboga Steven's place. 290

PW3 Magomu James testified that the meeting took place at the chairman's place.

Regarding the agreement of exchange, it is apparent that PW3, PW4 and PW5 all contradicted themselves as to where the agreement was authored. Given the contradictions, it can only be concluded and rightly so in my opinion that the trial magistrate was right to reject the evidence of the witnesses and the secondary evidence of the document that was clearly altered to favour the evidence of the witnesses. At page 13 of the record of proceedings, PW2 stated that there was a typing error which forced them to change the date on the minutes of the meeting from 2014 to 2013 evidently pointing to some untruthfulness on the part of the plaintiff's witnesses, PW2 and PW3.

Counsel for the respondents laboured to impeach the exchange of land which according to 300 him was done without the consent of the 1st respondent's family, specifically the wife and secondly, that the 1st respondent testified that at the time of the said exchange, he was picked up from his home while he was sick and taken to a "drinking place and he was not aware of his surroundings at the time.

In my view, even without consideration of the lack of spousal consent and the state of mind of the 1st respondent, the arguments on grounds 1 and 2 would suffice to dispose of this appeal.

Regarding the debt, the burden of proving its existence was on the appellant (PW1). From the evidence on record, it is very clear that the appellant did not furnish court with any evidence to prove the same, save for the evidence of PW2, PW3, PW4 and PW5 to determine the existence of the said debt. In the opinion of this court, none of them sufficiently showed that the debt existed as all of them stated that they found out about the debt either during the meeting or when the complainant reported to the LC1 chairman which in my view is hearsay evidence which is not admissible in court. PW2, the LC1 chairman during cross-examination testified that he did not know the sum of money being claimed by the appellant.

PW4 stated in cross-examination that it was an LC meeting and not a clan meeting and further that Magomu James was the secretary, admits that the agreement was made at his home. On the contrary during cross-examination, PW4 stated that the meeting was an LC meeting that turned into a clan meeting and that the clan meeting chairman was Magomu James. He further stated that the said agreement was made on the 1st respondent's land and not Stephen Wabwoga's home. It would seem more probable than not that this is a ploy to deprive the 1st respondent of his land by the appellant in connivance with PW2 and PW3.

I therefore find that the trial Magistrate was right to conclude that the appellant had failed to prove his case on a balance of probabilities. Grounds 1 and 2 therefore fail.

#### Ground 3

That the learned Trial Magistrate conducted the locus in quo in a haphazard and perfunctory and biased manner.

Under ground 3, the appellant complained that the trial magistrate conducted the locus in quo in a haphazard and perfunctory and biased manner. Upon perusal of the evidence on record, I found that the there is no evidence that would suggest that the trial magistrate conducted the locus in quo in a way that would undermine parties' interests.

Given that the appellant did not file his submission to expound on the allegation, this court finds no basis for the said complaint. Ground 3 shall in the premises fail.

#### Ground 4

### The learned Trial Magistrate has occasioned a miscarriage of justice.

From the evidence on record, I do not find anything that would otherwise suggest that the trial magistrate failed to properly evaluate the evidence on record. The burden of proof in civil cases is on a balance of probability. The law of evidence is that "he who alleges the existence

of facts must prove that they exist." (see section 101 of the Evidence Act). The appellant insists that the learned trial Magistrate occasioned a miscarriage of justice however there is nothing he has provided that would support his case and as such, the appellant has also failed to prove on a balance of probabilities that the trial Magistrate occasioned a miscarriage of justice. Since the appellant did not provide justification for his assertion, this court finds that no miscarriage of justice was occasioned against the appellant. For those reasons, ground 4 shall also fail.

Consequently, this appeal is dismissed with the following orders.

- 1. The decisions and orders of the lower court are upheld. - 2. The appellant shall bear the costs of the appeal and in the trial court.

I so order.

Dated at Mbale, this 27th day of June 2024. 350

**Margaret Apiny**

JUDGE