Onyango Mahande and Another v Mageni Wilberforce and Others (CIVIL APPEAL NO.0026 OF 2023) [2024] UGHC 1237 (19 November 2024)

# **THE REPBULIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT TORORO**

# **CIVIL APPEAL NO.0026 OF 2023 [ARISING FROM BUSIA CMC CIVIL SUIT NO.02 OF 2009]**

## 1. **ONYANGO MAHANDE**

2. **AMOS MAHANDE APPELLANTS VERSUS**

# **1. MAGENI WILBERFORCE 2. WANYAMA FRED 3. OJAMBO HENRY MUSALA (***Administrators of the estate of the late Madete Michael)* **RESPONDENTS**

## **JUDGMENT**

#### **BEFORE: HON JUSTICE HENRY I KAWESA**

This appeal arises from the judgment of Her Worship Adelo Suzan of the Chief Magistrate's Court of Busia at Busia delivered on the 15th of February 2023 vide Civil Suit No.002 of 2009, a suit instituted by the Respondents against the Appellants.

## **Background**

The Respondents claimed ownership of land situated in Sidome Village, Nekuku Parish, Lunyo sub-county, Busia District (*hereinafter the suit land*). They alleged that the land customarily belonged to the estate of the late Michael Madete having inherited the same from his father and fore grandparents. That Madete Michael possessed the suit land until around 2002 when the Appellants trespassed on it claiming that it belonged to them despite an existing boundary of Sikakanyi water stream which separated the suit land from their land.

The Appellants filed a written statement of defence wherein they claimed that the suit land forms part of land they inherited from their late father, Yoweri Mahande Rakolo s/o Chakuru s/o Keyo; and that it is situated in Bumagina Village, Nekuku Parish, Lunyo sub-county, Busia District. That they were using the said land by the time of their father's death without interruption by the Respondents or their later father. That in -1999 or thereabout, the Respondents' clan mates wrote a letter stopping them from using the suit land. Further, that their late father had planted eucalyptus and acacia trees on the disputed land back in 1970; that in 2002, the 1 st Appellant was granted a felling permit for the said trees by Busia District Local Government-Forestry Section; and that the area Local Council I Chairperson wrote to the Local Council II complaining about the repeated trespass on the disputed land by the plaintiffs' father.

The suit proceeded on for trial, a locus in quo was conducted, and a judgment was, thereafter, delivered in favour of the Respondents. The Respondents' witnesses were Ojambo Henry Musala (PW 1), Sitanga Abraham (PW2), Wafula John Madira (PW3), and Antonion Otira (PW4); and the Appellants' witnesses were Onyango Mahande (DWI), Kwoba Fred (DW2), Bwire Moses Musumba (DW3), and Simon Ntalo (DW4).

## **Grounds of the Appeal**

1. The learned trial Magistrate erred in law and fact when she held that the suit land belongs to the Respondents because it was located in Sidome Village.

- 2. The learned trial Magistrate erred in law and fact when she held that the Appellants' exhibits were irrelevant to prove ownership of the suit land. - 3. The learned trial Magistrate erred in law and fact when she held that the Appellants had used the suit land forcefully.

- 4. The learned trial Magistrate erred in law and fact when she held that the Appellants' witnesses knew nothing about the suit land. - 5. The learned trial Magistrate erred in law and fact when she held that the Appellants had trespassed on the suit land. - 6. The learned trial Magistrate erred in law and fact when she held that the Appellants' evidence was tainted with contradictions and inconsistencies.

## **Representation**

The Appellants are represented by Counsel Obbo Alex Brian of M/S Ekirapa & Co. Advocates; and the Respondents are represented by Counsel Were David of M/S Were Associated Advocates. I note that Counsel for the parties filed written submissions as directed by Court and shall be considered in determining the appeal.

#### **Preliminary Objection**

Counsel for the Respondents raised a preliminary objection to the effect that the appeal was filed out of time contrary to **Section 79(I)(a) of the Civil Procedure**

#### **Act Cap.282**

The Appellants' Counsel responded that the appeal was filed within 30 days of obtaining the certified copy of record of proceedings; and that time was frozen upon filing a letter seeking for the same as dictated by Section 79(2) of the Civil Procedure Act. That the letter requesting for a certified copy of the record of proceedings was filed on 24th of February, 2023; the said copy obtained on 18th of September, 2023; and appeal filed on 16th of October, 2023.

#### **Court's Decision**

The record bears a letter by the Appellants requesting for a certified copy of the record of proceeding filed on 20th of February 2023. It is the law that the time within

which to appeal freezes once an intending Appellant applies for a certified copy of record of proceedings until the same is provided (**Section 79(2) of the Civil Procedure Act).**

In this case, a certified copy of the record of proceedings was available on the 18th September, 2023; and the appeal was lodged on 16th of October, 2023, 28 days thereafter. Therefore, I agree with the Appellants' Counsel find that the appeal was filed within time, that is; 30 days as dictated by **Section 79(1) of the Civil Procedure Act Cap.282**. Accordingly, the objection is overruled.

## **Duty of Court**

Counsel for the Appellants rightly noted that the duty of tis Court is to subject the evidence presented at trial to a fresh and exhaustive scrutiny and come up with its own conclusion. Counsel cited **Father Nansesio Begumisa & Others vs Eric Tibebaga SCCA No. 17 of 2000** in support thereof. The Court is alive to the said duty and shall accordingly uphold it.

Counsel for the Appellants argued grounds 1, 2, 3, and 5 separately; and grounds 4 and 6 together. On the contrary, Counsel for the Respondents argued grounds l, 4, and 6 together; ground 2 separately; and grounds 3 and 5 together.

However, having read the record of proceedings and submissions of Counsel, I observed that all the grounds are interrelated. It is evident that grounds 2 to 6 revolve on the first ground, which is about the ownership of the suit land. Therefore, I shall determine all grounds concurrently.

## **Determination of the Appeal**

1. The learned trial Magistrate erred in law and fact when she held that the suit land belongs to the Respondents because it was located in Sidome Village.

- 2. The learned trial Magistrate erred in law and fact when she held that the Appellants' exhibits were irrelevant to prove ownership of the suit land. - 3. The learned trial Magistrate erred in law and fact when she held that the Appellants had used the suit land forcefully. - 4. The learned trial Magistrate erred in law and fact when she held that the Appellants' witnesses knew nothing about the suit land, - 5. The learned trial Magistrate erred in law and fact when she held that the Appellants had trespassed on the suit land. - 6. The learned trial Magistrate erred in law and fact when she held that the Appellants' evidence was tainted with contradictions and inconsistencies.

#### Court's Re-evaluation of Evidence

The parties' evidence on the ownership of the suit land was oral; and none of them adduced documentary evidence to prove the same.

1 am mindful that the Appellants' adduced DEXHI, DEXH2, DEXH3, and DEXH4. However, none of them bears attributes of ownership of the suit land by the Appellants or their alleged predecessors in title.

Their Counsel argued that the exhibits proved the Appellants' possession of the suit land as early as 1999, an attribute of ownership. That said, their evidential value as far as possession is concerned was is also very little, if not none. For instance, during cross examination, DWI admitted that DEXH4 talks of land in Bumagina village and on which land he was permitted to cut trees by Busia District Local Government, contrary to the Respondents' claim that the suit land is in Sidome Village. DWI also failed to affirm that DEXI-II alludes to any of the Respondents; not even the persons under whom they claim. Further, DEXH2 and DEXH3 show that there was probably a dispute over the possession of the suit land as early as 1999 but, the Appellants' witnesses admitted that the Respondents' late father, under whom the Respondents claim, sued the Appellants' father, under whom they claim, for wrongful possession of the suit land; won the suit but the appellate Court ordered a retrial hence the proceedings from which this appeal arises. In view of these facts, it's difficult for me to infer that those exhibits sufficiently prove the Appellants' possession/ownership of the suit land as the Respondents' Counsel suggests. For that case, I am unable to fault the learned trial Magistrate for finding that they were irrelevant.

Further, the Respondents' assertion right from their plaint is that the suit land is found in Sidome village. The oral testimonies of their witnesses, PW 1-PW4, were consistent on that; and pleaded and averred that the suit land and the Appellants' land (which is situated in Bumagina village) are separated by Sikakanya water stream. Their evidence was not discredited during cross examination. In addition, they ably clarified on their evidence at the locus in quo; and the sketch map taken by the trial Court further supports that, in that it shows that the suit land is situated in Sidome village; and separated by Sikakanya water stream from Bumagina village.

On the other hand, the Appellants asserted in their pleading that the suit land is situated in Bumagina village and gave no further detail but adduced evidence, part of which suggested that the suit land is in Sidome village. It is recalled however that a party is bound by its pleadings (**Order 6 Rule 7 of the Civil Procedure Rules SI 71-1**). Thus, having pleaded that the suit land is Bumagina village, it was not permitted for them to adduce contrary evidence as the same amounted to an ambush of the Respondents. In fact for that case, the Supreme Court guides that "*a party who departs from his pleadings and gives evidence contrary to his pleadings would be lying*" (*Akisoferi W. Biteremo vs. Damscus Munyanda Situma SCCA No. 15 of 1991)* (*unreported*); in *Kasifa Namusisi &* *Others vs. MK Ntabazi SCCA No.4 of 2005*). Therefore, the fact that the Appellants' departed from their pleadings is good reason to consider their evidence with suspicion.

The Appellants' Counsel argued that the location of the suit land had no bearing on its ownership since the land in dispute was agreed on by the parties during the locus visit; and that the learned trial Magistrate erred when she determined the ownership of the suit land basing on the village in which it was purportedly located instead of evidence of ownership, possession and use of the same. In the submissions in rejoinder, he added that since the 2 villages boarder each other, finding the exact boundary would require technocrats and local leaders, none of whom testified at trial; and that the Respondents had a burden of establishing the said boundaries in any event; among others.

Nevertheless, I note that the parties premised their claim of ownership of the suit land on the villages of its location by stating so in their respective pleadings. By the time the Respondents pleaded that the suit land is in Sidome village, and the Appellants emphatically responding that it is in Bumagina village, I am certain that each one of them was sure of what they claimed; and each one of them had an evidential burden to prove what was pleaded. In that regard, whereas the location of the suit land alone is not proof of ownership, it demonstrates the parties' consistency/ inconsistency, which is a determinant for reliability on their respective evidence. This view is anchored in the aforesaid guidance by the Supreme Court; and Section 154(c) of the Evidence Act Cap.8 which provides that the credit of a witness may be impeached "by proof offormer statements inconsistent with any part of his or her evidence which is liable to be contradicted.. In addition to that, the Respondents' Counsel cited *Constantino Okwi alias Magendo vs Uganda SCCCA No. 12 of 1990* about the effect of consistency and inconsistency of a witness while evaluating his or her evidence.

Therefore, having pleaded that the suit land is situated in Bumagina village, the Appellants should be held to their plea; and their Counsel is not permitted to attempt curing their shortcoming by insinuating that such a plea did not matter but the other parties' evidence of ownership, possession and use of the suit land. That said, there is nothing in the judgment of the lower Court indicating that the learned trial Magistrate solely based her conclusion about the ownership of the suit land on its location, but that it is a factor she considered while evaluating the parties' evidence as a whole. In my considered view, she cannot be faulted for doing so therefore; and its erroneous to state that she held that the suit land belongs to the Respondents only because it was located in Sidome Village.

With regards to the rest of the evidence; DWI stated that the suit land was originally situated in Sidome village which was later divided so that the suit land ended up in Bumagina "A" village; that his grandfather was born in Sidome village, and that when it was divided he remained on the other side (Bumagina village); and later, in re-examination, that Sidome and Bumagina "A" villages used to be one village called Buchunya. This is contrary to what DW2 stated, during cross examination, that Sidome and Bumagina villages were formerly called Burnagina before it was subdivided; and also contrary to DW4's testimony that the Appellants' land is in Manyofu village; and that the Respondents' land (suit land) is in Sidome village. Beyond that, the Appellants' witnesses, like DWI and DW2, kept shifting between stating that the suit land is situated in Bumagina village and that it is situated in Sidome village. Some, like

DW4, in fact expressly stated that the Appellants have no land in Sidome Village but Bumagina Village.

Counsel for the Appellants' faulted the learned trial Magistrate for finding that the Appellants' evidence had inconsistencies and contradictions. However, in view of the preceding observations and those earlier identified with respect to departure from pleadings, it is difficult for me to find otherwise.

Therefore, having re-evaluated the evidence as a whole and the Counsel's submissions; aware that the parties' evidence on ownership of the suit land was entirely oral, the fact that the Respondents' assertion was consistent unlike the Appellants, I find nothing to fault the learned trial Magistrate for believing the Respondents, and making whatever findings she made.

In conclusion, I do agree with the Respondents' Counsel and find all the grounds of the appeal in the negative. Consequently, the judgment of the lower Court is upheld; and the appeal is accordingly dismissed with costs to the Respondents.

I so order.

………………………………. Dr. Henry I Kawesa **JUDGE** 19/11/2024