Nkizimana Sula and Others v Sserwadda John Mary (Civil Appeal No. 7 of 2024) [2025] UGHC 558 (21 May 2025)

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MPIGI

### CIVIL APPEAL NO. 007 OF 2024

### (Arising from Civil Suit No. 007 of 2022)

| 5 1. NKIZIMANA SULA | | |-----------------------|--| | 2. MUNYABIBI TADEO | | | 3. LUDASIGWA LAWRENCE | | | 4. KAFULEEKA FRANK | | | | |

#### **VERSUS**

SSERWADDA JOHN MARY.................................... 10

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## Judgment

#### Brief background:

The respondent instituted Civil Suit No. 007 of 2022 against the appellants for the 15 recovery of UGX 7,637,500/= arising out of negligence for cattle trespass, general damages and costs of the suit.

It was the respondent's case that on several occasions cattle for the defendants had trespassed on the plaintiff's garden of maize and on the 11<sup>th</sup> day of June 2022 the respondent found the same animals grazing in his garden. That the incident was reported to the Lunoni Chairperson who advised them to go to court.

The appellants on the other hand denied the allegations of the respondent in their defence and averred that the said cattle did not belong to them but rather a one Kakande and that the 3<sup>rd</sup> appellant in particular has exotic cattle which were not

part of the cattle in the photographs and that none of the cows were impounded 25 as exhibits.

Judgment was entered in favour of the respondent. The appellants being dissatisfied with the decision of Her Worship Sabakaki Pauline, Magistrate Grade one lodged the instant appeal whose grounds are as follows;

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- 1. That the learned trial Magistrate erred in law and fact in holding that the defendant's cattle destroyed the plaintiff's crops without proof that the cattle belonged to the defendants. - 2. That the learned trial Magistrate erred in law and fact when she did not ascertain that the cattle in the photograph were the actual cows for the defendants or for Kakande. - 3. That the learned trial Magistrate erred in law and fact when she disregarded the defendant's evidence that the cattle that destroyed the plaintiff's crops belonged to a one Kakande and not them.

#### 10 Representation:

Grit advocates appeared for the respondent and both sides filed their written submissions.

Duty of the first appellate:

15 It is the duty of first appellate court to re-evaluate evidence as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witnesses in the lower court and an allowance should be made in that regard. (See: Fr. Narsensio Begumisa and 3 Others v. Eric Tibebaga, SCCA No. 17 of 2002).

Resolution of the appeal:

20 Grounds one and two will be resolved concurrently while ground three will be resolved separately.

Grounds 1 and 2:

That the learned trial Magistrate erred in law and fact in holding that the defendant's cattle destroyed the plaintiff's crops without proof that the cattle belonged to the defendants.

25 That the learned trial Magistrate erred in law and fact when she did not ascertain that the cattle in the photograph were the actual cows for the defendants or for Kakande.

It was submitted for the appellants that the respondent during cross examination stated that he had taken photographs of the cows he found in his maize garden which were 150 in number and these cows belonged to the appellants however, no photo was ever tendered in court to support this piece of evidence. Nor was the LC1 Chairperson brought to court as a witness to whom the matter was reported to. That it was the said photographs that the trial magistrate relied upon to reach her decision in finding that it was the appellants' cows that destroyed the respondent's crops. Counsel added that it is trite law that a document only forms

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part of the evidence of the parties if the same is tendered in court as an exhibit. (See: Kenneth Nyaga Mwige v. Austin Kiguta and 2 others (2015) e KLR).

Counsel further submitted that Kakande Aloysious was summoned by court and in his testimony he stated that lots of cows resemble and if they ate 'someone's crops

- they would be impounded. And that his cattle have never been impounded. Counsel noted that in the instant case no cow was impounded by the local authorities. Additionally, that DW6 stated that on the alleged day of the incident he was with two other people and he found the 3 defendant's cows taking water in the river then the plaintiff came and said that his cows had eaten his crops. - 10 Thereafter he showed them a photograph which they disputed and showed him where their cows were grazing from. That the cows in the photo belonged to Kakande. That PW2 in the instant case stated that she saw cows eat the crops on the respondent's land however she did not bring any proof to establish that the cows belonged to the appellants.

15 Counsel concluded that there was no evidence adduced in court by the respondent proving that the cows that ate his maize belonged to the appellants.

Counsel for the respondent on the other hand submitted that the trial Magistrate in the instant case not only relied on the Photographs that were not submitted but also relied on direct oral evidence as provided for under Section 59 of the Evidence

20 Act. Counsel also quoted the case of Matovu Kaloli v. Muyanja Lawrence and Kamulasi Samson, Civil Appeal No. 47 of 2021, counsel submitted that in this authority the trial magistrate was found to have misdirected herself by not considering the direct oral evidence of the appellant's two witnesses who saw the incident take place.

25 I have carefully considered the evidence on record and the submissions for both parties in resolving these grounds. It is my considered view that the gist of these two grounds is ownership of the cattle that destroyed the respondent's crops and how the magistrate arrived at her conclusion in that regard.

30 35 In the instant case, there was no description given by the respondent or his witnesses to confirm that the cows that destroyed his maize actually belonged to the defendants. Cows have identifying features such as; long or short horns, marks (tattoos), tags, colours, patches, they are of different breeds and in the instant case none of such evidence was adduced as a distinguishing factor that informed the respondent that the over 150 cows which he allegedly found in his garden belonged to the appellants. It was also the evidence of Kakande Aloysious that cows do resemble, so in the instant matter, how was the respondent able to identify the cattle as belonging the appellants who deny ownership of the same?


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While the respondent's witnesses stated that the knew they herdsmen of the appellants, no further evidence was adduced in that regard since some of the appellants mentioned that their sons are the ones that looked after their cows.

PW2'in part of her evidence stated that the'21d appellant did not rear his cattle with the other appellants. Then contradicted herself and stated that the 2nd appellant and the other appellants' herdsmen reared all the cows from one kibanja belonging to Alozio Kakande.

Counsel for the respondent submitted that the trial magistrate relied on direct oral evidence in this case, yet the respondent's witnesses did not in any way testify or

10 prove to court how they were able to distinguish the defendants' cows from any other cattle.

I find that the facts in the authority as relied on by counsel for the respondent is distinguishable from the facts in this case. Whereas, in the case of Matovu Kaloli (Supra), the culprit in that case was seen and identified unlike in the instant case

- 15 where we are dealings with animals which can be the same in appearance so what is that feature that was on the cows that ate the respondent's maize that made them stand out and inform the magistrate that they belonged to the appellants apart from the respondent's witnesses plainly stating that they saw cows and they were for the appellants. - 20 The testimony in chief of PW2 as quoted for the respondent did not indicate anywhere that the cows that were eating the respondent's maize were for the appellants. It is the same case with PW3 who merely stated that he saw cows.

Kakande who was summoned by court testified that when cattle trespassed, they would be impounded and in this case none whatsoever, from the 150 that the respondent stated that he saw in his garden was impounded.

It is not in contention that the respondent's crops were destroyed by cows, however, the respondent in my opinion did not discharge his duty of proving that the cows belonged to the appellants on a balance of probabilities. The trial Magistrate therefore erroneously reached her decision without sufficient evidence

30 proving that indeed the cows that destroyed the respondent's crops belonged to the appellants. Save from the respondent and his witnesses stating that the cows to the appellants and nothing more.

These grounds of appeal hereby succeed.

35 Ground 3: That the learned trial Magistrate erred in law and fact when she disregarded the defendant's evidence that the cattle that destroyed the plaintiff's crops belonged to a one Kakande and not them.

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Counsel for the appellants submitted that all the appellants in their evidence testified that they saw cows belonging to Kakande eat the crops in the respondent's garden. That it was their evidence that their cows do not graze together. That it was DW3's testimony that he has a fence and that he would be able to tell if his cattle had broken loose. While DW4 stated that he saw about 40 cows in the

- respondent's garden that belonged to Kakande. That this was direct evidence that was disregarded by the trial Magistrate and led to a miscarriage of justice. That this evidence was not rebutted by the respondent. - 10 Counsel for the respondent submitted that while it was the testimony of the appellants that they saw Kakande's cows eat the respondent's crops they did nothing over the same. That the appellants merely intended to shift blame to a nonparty to the suit and that Kakande denied the cattle in the picture belonging to him. Counsel noted that it was the testimony of DW1 that he owns 100 cows, DW3 has - 15 12 cows, that in the circumstance, the number of cows in this case owned by the appellants are commensurate with the number of cattle that the respondent said he found in his garden. That none of the appellants in their testimonies stated that they rear their cows themselves and none of their herdsmen were brought to court as witnesses. That in the circumstances the appellants would not know what their - 20 herdsmen did in their absence and their testimonies are based on mere denials unlike the respondent who brought direct evidence of witnesses who saw the event unfold.

25 30 I have carefully perused the judgment of the lower court and trial Magistrate stated that the evidence of the respondent was based on direct evidence of PW1, PW2 and PW3 while that of the appellants was based on speculation that the cattle belonged to Kakande who when summoned by court confirmed that the cattle belonged to the appellants. I equally perused the evidence of Kakande and he did not mention at any point that the cattle that ate the respondent's crops belonged to the appellants. He just like the appellants denied the cows that were in the photographs that were never tendered in court.

The trial Magistrate in this case therefore adduced her own evidence while writing her judgment that did not form part of the court record to conclude that the cows belonged to the appellants.

This ground of appeal also succeeds.

35 In a nutshell this appeal hereby succeeds on all grounds and is accordingly allowed with costs. ' E

I so order.

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Right of appeal explained.


## OYUKO ANTHONY OJOK

5 JUDGE

21/05/2025