Ndighaha v Sekanabo (Civil Appeal 15 of 2018) [2024] UGHC 711 (12 July 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 015 OF 2018 (ARISING FROM FPT 01-CV-SC-021 OF 2017)**

| NDIGHAHA JAMES | :::::::::::::::::::::::::::::::::: APPELLANT | |------------------|----------------------------------------------| | | VERSUS | | SEKANABO YEREMIA | ::::::::::::::::::::::::::::::: RESPONDENT |

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and decree of H/W Oji Phillips, the Magistrate Grade 1 of the Chief Magistrate's Court of Bundibugyo at Bundibujyo, delivered on the 14th day of February 2018 in favour of the respondent.

#### **Background**

The respondent filed Civil Suit No. 21 of 2017 against the appellant in the Chief Magistrate's Court of Bundibugyo at Bundibugyo, seeking a declaration that he is the owner of the suit land situated at Buganikere II Village in Bundibugyo District, a declaration that the appellant is a trespasser on the suit land, general damages, a temporary injunction, and the costs of the suit.

The respondent claims that he sold land adjacent to the suit land to the appellant, with clearly defined boundaries in the year 2009. However, after some time, the appellant encroached on the suit land by 23 ft by 29 ft. In his written statement of defence, the appellant denied the respondent's claims and stated that he only occupied the land he bought from the respondent, which measures 1 and ½ acres.

In his judgment, the trial magistrate Grade 1 decreed that the appellant was the trespasser on the suit land. The trial magistrate also awarded general damages of UGX. 3,000,000/= and the costs of the suit to the respondent and issued a permanent injunction restraining the appellant from interfering with the respondent's ownership and quiet possession of the suit land. The appellant was also ordered to surrender the encroached part of the suit land, measuring 23 ft by 29 ft, to the respondent.

Being dissatisfied with the decision of the trial Magistrate, the appellant appealed to this court on the following grounds:

- i. The learned trial magistrate Grade 1 erred in law and fact when he failed to properly evaluate the evidence on record especially evidence of DW1, DW2, and DW3 and came to a wrong conclusion. - ii. The learned trial magistrate misdirected himself when he held that the appellant encroached on the respondent's land which the appellant bought from the respondent in 2009. - iii. The trial magistrate Grade 1 did not properly conduct locus in quo. - iv. The learned trial magistrate Grade 1 misdirected himself when he based his decision on facts not on record.

#### **Representation and Hearing**

The hearing proceeded by way of written submissions. Mr. James Ahabwe, R. I. P., represented the appellant while Mr. Aguma Kigunga, R. I. P., represented the respondent. Both counsel filed written submissions which I have considered in this judgement.

## **Duty of the First Appellate Court**

Decision of Hon. Justice Vincent Emmy Mugabo Page **2** of **15** This being a first appeal, 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 Vs. Eric Tiberaga SCCA 17of 2000* where the court held thus:

*"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. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters Vs. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal. In this appeal, I will first resolve ground 3 since if resolved in the affirmative can dispose of the entire appeal, then proceed to resolve grounds 1, 2 and 4 concurrently as they pertain to the evaluation of evidence or the lack thereof.

## **Ground 3: The learned trial Magistrate Grade 1 did not properly conduct evidence locus in quo.**

**Submissions by both counsel on ground 3**

Counsel for the appellant submitted that the learned trial Magistrate Grade 1 did not properly conduct the *locus in quo*. Counsel referred this court to the case of *Waikubi Asuman Muzale & Another Vs Kigaye Samson CACA No. 57 of 2013.*

Counsel for the appellant argued that since the trial magistrate had made a pre-trial visit to the suit land and established that the traditional boundary marks *of oburamura trees had* been tampered with and shifted, a *locus in quo* visit would have been necessary to check the evidence of the parties' witnesses.

Counsel argued that there is no way the court would have measured and determined the encroached part of the suit land without measuring the 1 and ½ acres of land that the respondent sold to the appellant and verifying whether it measures more than 1 and ½ acres.

Counsel argued that without measuring the land the appellant bought from the respondent first, the court acted on mere speculation, leading to a wrong decision.

On his part, counsel for the respondent submitted that the appellant advocate had not attached the proceedings on the *locus in quo* to enable this court to determine whether the proceedings at the *locus in quo* were properly conducted.

Counsel referred this court to the case of *Jacob Mutabazi vs. the Seventh Day Adventist Church CACA No 88 of 2021.* Counsel argued that in the face of failure by counsel for the appellant to produce the record of the proceedings of the *locus in quo*, then the proceedings at the *locus in quo* should be presumed to have been legitimately done.

Counsel for the respondent made an alternative argument to the effect that even if the proceedings at the *locus in quo* were not properly conducted, there is sufficient evidence on record to support the trial court's findings.

Counsel referred this court to the case of *Manweri Manwa Anthony Vs. Wabalayi John CACA No. 007 of 2010* where it was held that locus in quo was not mandatory and depended on the peculiar circumstances of each case.

## **Court's Analysis of Ground 1**

The purpose of the visit to the *locus in quo*, as articulated in the case of *Deo Matsanga Vs. Uganda 1998 KALR 57***,** is to:

> **"***To cross-check on the evidence adduced during the trial. The proceedings at the locus should form part of the court record. The trial Magistrate should record everything that a witness states in the locus in quo and recall him to give evidence of what occurred on oath and the opposite party is afforded an opportunity to cross examine him.***"**

Highlighting the purpose of the visit to the *locus in quo*, Ongom, Ag. J., (as he then was) in *Badiru Kibelega Vs. Sepiriano Magunga HCCA No. 07 of 1987* held that:

> *"It is well established that the purpose of visiting the locus in quo is for each party to indicate what he is claiming. Each party must testify on oath and be cross-examined by the opposite party. Similarly, witnesses who have already testified in court are required at the locus in quo to clarify what they were stating in court to indicate the features or*

*boundary marks, if any, to the court. Any observation made or noted by the trial magistrate at the locus in quo must be noted and recorded and must form part of the record. Unless it is requested or intimated in advance, the court should not allow fresh witnesses to be called at the locus in quo. If the trial court fails to follow the accepted procedure at the locus in quo and bases his judgement on the trial at the locus in quo, the omission is fatal to the whole trial."*

However, in the case of *Bale and 2 Others Vs. Okumu, Civil Appeal No. 21 of 2005*, the Cout of Appeal held that *"visiting locus in-quo by court is not mandatory and court reserves the right to visit locus in quo in deserving cases – which is its discretion to exercise" (*Emphasis added).

In the case of *Mbusa Muyeye Vs. Maliro Benezeri HCCA No. 015 of 2017*, this court stated that the decision to visit locus in quo essentially rests on the need for the judicial officer to understand better the evidence adduced before him or her during the testimony of witnesses in court. This, therefore, means that once a judicial officer has decided to visit the *locus in quo*, then the proper procedure of conducting proceedings as well as taking notes should be followed. However, in the opinion of the judicial officer, circumstances of the case do not require visiting *locus in quo*, then a judicial officer will not be faulted, for having not done so, if there is sufficient evidence to support his or her decision.

In the instant case, the trial magistrate did not conduct the *locus in quo* visit. What he did was a pre-trial visit which was conducted on the 11th of December 2017.

The two, a pre-rial visit and a *locus in quo* visit are different in that the former is intended to gather preliminary information, clarify issues, or identify key aspects of the case, such as the *status quo* before the trial begins while the latter is intended to cross-check on the evidence adduced during the trial.

Additionally, unlike a pre-trial visit which is aimed at streamlining the trial process and resolving minor issues at hand, a *locus in quo* visit is a formal part of the trial process and its findings form part of the court record and can be relied on in a judgement.

In the case of *Owon Akwilino Okongo Vs Omara Yosam & Another HCCA No. 11 of 2020*, Hon Justice George Okello held that a pre-hearing locus visit is not a judicial hearing as it happens before witnesses are sworn and heard in court. Pre-hearing locus visit merely helps the court to appreciate the *status quo* on the suit land before the hearing.

Indeed, the trial court record shows that the learned trial magistrate on the 22nd of November 2017 noted that: *"this appears to be a boundary dispute. It is prudent that the court pre-visits the locus before hearing this matter to determine the boundaries of the part of the suit land said to have been encroached/trespassed into by the defendant. The court shall make that previsit on the 8th/12/2017. At 10:00 am."*

The learned trial magistrate made a pre-visit on the 11th of December 2017 and there is a sketch map on record showing the boundaries of the suit

land. There is nothing on record to suggest that the learned trial magistrate conducted a *locus in quo* visit after hearing the witnesses in court.

Clearly, the pre-trial visit and the *locus in quo* visit are different and serve different purposes. In the instant case, the learned trial magistrate conducted a pre-trial visit. Therefore, he cannot be faulted for having improperly conducted proceedings at the *locus in quo* visit, which he never conducted, in the first place.

Therefore, ground 3 of the appeal is answered in negative and must fail.

Having exercised his discretion not to conduct a *locus in quo* visit, then what is crucial for this court is to determine whether, based on the evidence on record, it is possible to arrive at the decision that would conclude this case without causing a miscarriage of justice to either party. This shall be determined under grounds 1, 2, and 4 which I shall resolve concurrently.

**Grounds 1, 2 and 4**

## **Submission by Both Counsel on Grounds 1, 2 and 4**

On Ground 1, counsel for the appellant submitted that both DW2 and DW3, who witnessed the land sale agreement, testified that at the time of executing the agreement, the boundaries for the land the appellant purchased from the respondent were identified and the boundary marks were planted. Counsel argued that there was evidence on record to show that the appellant had been in occupation of the suit land since 2009. Counsel for the appellant also submitted that DW1 testified that he never tampered with the boundary marks planted at the time he bought the land adjacent to the suit land.

Counsel for the appellant submitted that the onus was on the respondent to prove that the appellant encroached on his land. Counsel argued that the trial magistrate had ignored the evidence of DW1, DW2, and DW3, hence reaching a wrong conclusion.

On ground 2, counsel for the appellant submitted that since the appellant had bought the adjacent land from the respondent, there was no way he could have encroached on the same land he had bought, and therefore the trial magistrate misdirected himself when he relied on the testimony of PW1 and PW2 while ignoring that of DW1, DW2, and DW3.

On ground 4, counsel for the appellant submitted that the pre-trial visit which was conducted does not amount to *locus in quo* visit and there are no locus notes on record upon which the trial magistrate based his findings. Counsel for the appellant further argued that by relying on the pre-trial visit findings, the trial magistrate misdirected himself, hence reaching a wrong conclusion.

Counsel for the respondent, on the other hand, submitted that the respondent testified that he sold to the appellant land that is adjacent to the suit land measuring 1 and ½ acres and the respondent clearly showed the appellant boundaries of the land he had purchased but the appellant later shifted the boundaries and encroached on the suit land by 23 ft by 29 ft.

Counsel for the respondent further submitted that the testimony of DW2 corroborated that of PW1, the respondent, that the respondent had sold the appellant only 1 and ½ acres. Counsel also argued the DW3 had testified that he was not aware whether the appellant had removed the boundary marks as planted at the time of the purchase.

Counsel further argued that the trial magistrate had questioned the credibility of DW2 and DW3, who were members of the L. C. 1 executive and could not have been impartial in their testimonies and therefore the trial magistrate was right by not relying on their testimonies.

On ground 4, counsel for the respondent submitted that the trial magistrate relied on the evidence on PW1 and PW2 while attaching less weight to that of DW1 and DW2 to reach his decision. Counsel argued that all the witnesses had testified that they participated in planting the boundaries between the two pieces of land at the time of the purchase which boundaries were later uprooted.

Counsel for the respondent submitted that with or without *locus in quo* visit, the trial magistrate would have arrived at the same decision pursuant to section 166 of the Evidence Act since there was sufficient evidence on record to justify his decision.

## **Court's Analysis of Grounds 1,2 and 4**

The instant appeal concerns a boundary dispute. In resolving the dispute, the trial court framed two issues for determination, to wit (i) whether the defendant trespassed on the part of the suit land, and (ii) what remedies are available for the parties.

In finding that the appellant is a trespasser, the learned trial magistrate noted that:

> *"The court pre-visited locus on 11/12/2017 and was shown the part the defendant was sad to have encroached on. The court took measurements which it found to be 23ft by 29 ft. The court also noted developments on that disputed part. The court further noted that the traditional boundary marks "oburamura" which had been planted earlier were tempered with and shifted from where they were before to elsewhere. This shift gave rise to the part of the land forming the dispute. The court drew the sketch map of that particular part, the subject matter of the dispute. These locus findings grossly betrayed the denial of involvement of the defendant in this matter. The plaintiff proved to the court that he is the owner of the suit land and that the defendant encroached on it without his consent. Besides DE1, the judgement of L. C.1 court shows that the committee which constituted themselves to hear the matter before that court never exercised independence and impartiality in doing…"*

The foregoing excerpt from the trial court judgement shows that the learned trial magistrate relied significantly on what he called "locus findings" to reach its decision. However, I have already stated under ground 1, that there was no *locus in quo* proceedings by the court but only a pre-trial visit which is not part of the record of the trial court.

Nonetheless, in cases, the instant one, the overriding question for this court to determine is whether with or without *locus in quo* proceedings, based on the evidence on record, it is possible to arrive at the decision that would

conclude this case without causing a miscarriage of justice *(see: Kutambaki Augustine Vs. Byaruhanga Paul, CACA NO. 65 of 2012).*

This question is answered in the affirmative if there is sufficient evidence in the record other than that relied upon by the trial court to support its findings *(See: The Registered Trustees of the Church of Uganda Rwenzori Diocese Vs. Kasangaki Paul HCCA No. 20 of 2019).*

In the instant case, both the appellant and the respondent own pieces of land that are adjacent to each other. The appellant bought his land from the respondent. The sales agreement, which was admitted in evidence as Pexh 1, describes the boundaries of the appellant's land, clearly, which land borders that of the respondent on its upper side.

Although Pexh 1 does not explicitly state the size of the land, both the appellant and the respondent agree that the land that was the subject of the transaction is approximately 1 and ½ acres. This is merely an approximation because PW2, Kule Israel, who witnessed the sale agreement told the court that they did not measure the appellant's land at the time of the purchase. This was also confirmed by the appellant who testified as DW1.

The respondent claims that the appellant uprooted *the oburamura trees* which were planted as boundaries and replanted them into the suit land thereby encroaching on the suit land by 23 ft by 29 ft. All the appellant's and respondent's witnesses testified to have participated in planting the boundary marks at the time of the purchase.

Upon the evaluation of the evidence on record, it is clear that 1 and ½ acres of land the respondent sold to the appellant is approximate. It is also clear that the boundaries between the suit land and that of the appellant were planted and identified as described in Pexh 1. The boundaries were the *oburamura trees*.

All the appellant's witnesses stated that at the time of purchase, they planted *oburamura trees* as boundaries. PW1 and PW2 led evidence to the effect that the *oburamura trees* were uprooted. In fact, according to Dexh 1, when the L. C. 1 visited the locus in quo, there was *"no sign of the oburamura trees."*

From the foregoing and with due respect, I find the argument of counsel for the appellant untenable. Counsel contends that the only way to ascertain whether the appellant trespassed on the suit land is to first measure and set aside the 1 and ½ acres that the appellant purchased from the respondent. However, the land bought by the appellant was not measured at the time of purchase. As per Pexh 1, the land is described only by boundaries, not by size, although both parties approximate that it is about 1 and ½ acres.

It is simply illogical to first measure the 1 and ½ acres allegedly belonging to the appellant to determine whether the appellant encroached upon the suit land by 23 ft by 29 ft. This is because the size of the appellant's land is just an approximation and was not measured at the time of purchase. It was merely described by boundaries, and it is the respondent's case that the appellant uprooted the boundary marks.

It is not in contestation that *oburamura trees* were planted as boundary marks between the two pieces of land. While the appellant's counsel faults the trial magistrate for having ignored evidence of DW1, DW2, and DW3, they all stated that boundary marks were planted between the two pieces of land in 2009.

These boundary marks were, however, uprooted and it is the respondent's evidence that the appellant went beyond the boundary marks by 23 by 29 ft to include even the space that was formerly occupied by the "old pit latrine." Moreover, the appellant is using the disputed portion of the suit land, a fact that he does not deny, which corroborates the respondent's testimony at the trial.

Therefore, there is sufficient evidence on record to show that the appellant went beyond the boundaries of his land as planted and shown to him at the time of the purchase in 2009.

Section 166 of the Evidence Act provides that the improper admission or rejection of evidence shall not be ground itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

In the instant case, while it was wrong for the learned trial magistrate to rely on his pre-trial visit findings which do not form part of the record, the evidence on record, if evaluated as a whole, supports the findings of the

trial magistrate, that on the balance of probability, the appellant encroached on the respondent's land and hence he is a trespasser.

It is therefore immaterial that the learned trial magistrate relied on pre-trial visit findings in the face of the other evidence properly admitted on record, which when properly evaluated would support his findings. Therefore, grounds 1, 2 and 4 of this appeal are answered in negative and must fail.

For the reasons given above, I have no reason to fault the learned trial magistrate's decision and it is accordingly upheld.

Resultantly, I find that this appeal has no merit and is hereby dismissed with costs to the respondent.

It is so ordered.

This Judgement was made ready by 30th June 2024 before the 7th Revised Edition of the Principal Laws was published and therefore sections cited herein apply mutatis mutandis.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**