Nestiya v Mutebi (Civil Appeal 37 of 2022) [2024] UGHC 370 (24 May 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 037 OF 2022 (ARISING FROM KJJ-008-CV-LD-009 OF 2020)**

| NESTIYA STEPHEN | :::::::::::::::::::::::::::::::::: APPELLANT | |-----------------|----------------------------------------------| | | VERSUS | | ZEDI MUTEBI | ::::::::::::::::::::::::::::::: RESPONDENT |

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

### **JUDGMENT**

This is an appeal against the judgment and decree of the Magistrate Grade 1 of the Chief Magistrate's Court of Kyenjojo at Kyegegwa delivered on the 8th day of December 2022. In the said judgment, the trial court held that there is an access road measuring 2.5 metres on the suit land and the appellant had no cause of action against the respondent.

### **Background**

The appellant filed land claim No. 009 of 2020 against the respondent in the Chief Magistrate's Court of Kyenjojo at Kyegegwa for trespass. In the said suit, the appellant sought a declaration that he is the owner of the suit land, a declaration that the respondent is a trespasser on the suit land, compensation, a permanent injunction, general and special damages, and costs of the suit. The appellant claims that he purchased the suit land in October 2013 and immediately took possession of it by constructing a permanent house and planting crops and flowers on the same. In March 2019, the respondent trespassed on the suit land and uprooted the flowers, cut down the trees and then created a road on it. The appellant reported the matter to police but did not get any assistance hence filing of the suit.

In her judgment, delivered on the 8th of December 2022, the learned trial magistrate held that there exists an access road measuring 2.5 metres on the suit land and that the appellant had no cause of action against the respondent. The trial magistrate dismissed the suit with costs against the appellant.

Being dissatisfied with the decision of the trial Magistrate, the appellant appealed to this court on one ground: *The learned trial magistrate erred in law and fact when she only considered the evidence of the respondent in isolation of the appellant's hence occasioning a miscarriage of justice.*

## **Representation and Hearing**

The hearing proceeded by way of written submissions. Both parties were unrepresented. However, they filed written submissions which I have considered in this judgement.

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

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 v. 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 v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's ground of appeal.

## **Submissions by the Appellant**

The appellant submitted that the respondent uprooted his trees on the suit land and went ahead to encroach on the suit land by constructing a road on the same which had never existed. The appellant faulted the trial court decision that it did not evaluate the evidence on record properly thus causing the miscarriage of justice.

## **Submissions by the Respondent**

The respondent submitted that there was no fault with the judgement of the trial court. The respondent submitted that when he bought his land, it was indicated that it bordered an access road on one side and when he settled on it, he saw the appellant planting crops on the access road claiming that it was a footpath and not a road.

The respondent submitted that when he reported the matter to the local authorities, it was resolved that there exists an access road on the suit land which should not be blocked by the appellant. The local authorities allowed

him to use the access road. The respondent submitted that the trial court ordered the respondent to pay the appellant compensation of UGX. 600,000/= but the appellant refused it.

## **Consideration by Court**

The ground of the appeal as stated in the memorandum of appeal relates to the improper evaluation of evidence by the learned trial magistrate. As already stated, this being the first appellate court, it must reevaluate the evidence on record to make its own findings and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses.

Upon re-evaluation of the evidence on record, it is apparent that the trial Magistrate's decision was substantially influenced by the testimony of one Asiimwe Herbert, who only was called to testify to the court while at *locus in quo*. Although Asiimwe Herbert testified at the *locus in quo*, he was a new witness and there is nowhere it is indicated on the court record that parties had intimated that he would be expected to testify at the *locus in quo*.

At the beginning of proceedings at *locus in quo* court stated that:

*"Before we proceed with inspection of the disputed land, let us take the testimony of Asiimwe Herbert who sold the land to the plaintiff, a one Nesitiya Stephen, and also a son to Bagyenda Jotham, DW 2."*

In her judgement, the trial magistrate noted that:

*"However, at locus in quo visit when Asiimwe Herbert was asked to physically clarify to court the size of the access road/path that was in existence by the time he sold land to the plaintiff, an access* *road measuring 2.5 metres was measured with the guidance of Asiimwe Herbert. These 2.5 metres run from Sabiiti Waren's garden right to a rock close to the plaintiff's garden and the length proceeds by a somewhat straight line to Byaruhanga Deo's gravilla tree and then connects to Rugarama Road."*

The trial court concluded that:

*"Through all the available evidence produced in court, there is a lawful access road measuring 2.5 metres which is next to both the plaintiff and the defendant piece of land and the aforementioned access road runs from Rugarama road to the valley where the community well is and proceeds to other villages."*

The findings of the trial court were largely and significantly based on the testimony of Asiimwe Herbert, who had not testified in court. This defeats the essence of the *locus in quo* visit.

The procedure that trial courts follow on conducting proceedings at the *locus in quo* has been provided in case law **(see J***. W. Ononge Vs. Okallang (1986) HCB 63 & Badiru Kabalega Vs. Sepiriano Mugangu HCCA No. 07 of 1987 [1992] KALR 110)* and codified in Practice Direction No. 01 of 2007 as follows:

### *"3. Visit to the Locus in Quo*

*During the hearing of the land disputes the court should take interest in visiting the locus in quo and while there,*

*(a)Ensure that all the parties, their witnesses and advocates (if any) are present.*

- *(b)Allow the parties and their witnesses to adduce the evidence at the locus in quo.* - *(c) Allow cross-examination by either party or his or her counsel.* - *(d)Record all the proceedings at the locus in quo.* - (e) *Record any observation, view, opinion or conclusion of the court, including drawing a sketch plan, if necessary."*

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 (supra)* 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."*

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. In the case of *The Registered Trustees of The Archdiocese Of Tororo Vs Wesonga Reuben Malaba & 5 Others, HCCA 096 Of 2009* court held that at the *locus in quo*, "there is no adding to or closing gaps at the locus. The evidence only clarifies what has already been testified in court."

What can be gathered from these authorities is that while at the *locus in quo*, a judicial officer should not take new evidence from a new witness who never testified in court. A judicial officer may only recall a witness who testified in court and then allow the opposite party to cross-examine him or her. Even when a witness is recalled, he or she is expected to clarify what he or she testified in court but not to give fresh evidence.

In the instant case, while at the *locus in quo*, the trial magistrate only took evidence of a new witness and did not allow any of the witnesses who had testified in court to clarify what they had testified in court. Clearly, the proceedings at the *locus in quo* were conducted in a manner that is strange to the known procedure. It was improper for the trial magistrate to call a new witness at the *locus in quo* and then deny the parties, who had testified in court, the opportunity to clarify what they stated in court and describe the features of the footpath, if any.

As I have already noted above, the decision of the trial magistrate was largely based on the proceedings at the *locus in quo,* yet the proceedings were conducted without following the known procedure. Several court decision decisions such as *W. Ononge Vs. Okallang (1986) HCB 63 and Badiru Kabalega Vs. Sepiriano Mugangu HCCA No. 07 of 1987 [1992] KALR 110)* are the effect that where the trial court relies, in its judgement, significantly or largely on proceedings at the locus in quo which has not been conducted following the known procedure, or where no record of it is properly made or available that would vitiate the proceedings leading to a retrial.

However, the Court of Appeal, in the case of *Kutambaki Augustine Vs. Byaruhanga Paul, CACA NO. 65 of 2012*, clarified that such a position is too broad. Failure to follow the known procedure at the locus would only be fatal to the judgment, not necessarily warranting a retrial. The Court of Appeal, however, was quick to add that the effect of such a finding may often be to order a retrial if the trial court finding is not salvageable.

On whether the appellate court should order a retrial or re-evaluate the evidence on record, the Court of Appeal in *Kutambaki Augustine Vs. Byaruhanga Paul (supra)* stated thus:

> *"…the appellate court should be able to determine whether, on the evidence on record, it is possible to arrive at the decision that would the case without causing miscarriage of justice. Where the appellate court so finds, it may*

*determine the case after re-evaluation of the evidence and the law. if, however, this is not possible, the appellate court would then have to order a retrial."*

The instant case involves a claim of trespass. The appellant claims that the respondent trespassed on the suit land and created an access road on it while the respondent claims that the access road existed prior and is even used by the other people in the community. A locus visit was important to ascertain the extent of the access road, if it existed in the first place; the features that make that road; or its actual size. The parties must be allowed to clarify the evidence that was presented to the court. Therefore, I find it difficult to re-evaluate the evidence on record without any clarification from the *locus in quo*.

For the reasons given above, this appeal succeeds. I find the judgement, decree and orders of the trial magistrate a nullity and are hereby set aside for being significantly based on the evidence taken at the *locus in quo* without following the known procedure.

This is a case where a re-trial should be ordered. Accordingly, an order for retrial of the matter is hereby issued. The file shall be placed before another magistrate for purposes of a retrial. Each party shall bear its own costs for this appeal.

It is so ordered.

Dated at Fort Portal this 24th day of May 2024.

**Vincent Emmy Mugabo Judge**