Rugogamu v Erineo (Civil Appeal 58 of 2015) [2025] UGCA 48 (14 February 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

(Coram: Cheborion Barishaki, Moses Kazlbwe Kawumi, Asa Mugenyi, JJA)

### CIVIL APPEAL NO. O58 OF 2015

### ARISIN FROM HIGH COURT APPEAL 10F 13

RUGOGAMU AFRICANO -APPELLANT

#### VERSUS

ERINEO KABALE RESPONDENT

#### JUDGMENT OF DR. ASA MUGENYI JA

## 1. INTRODUCTION

1 This is a second appeal from the judgment of High Court of David Matovu J., delivered on 11th December 2OL4. The appellate Judge set aside the judgement and orders of the trial Magistrate Grade 1 and declared the respondent the lawful owner of the suit land.

# 2. BACKGROUND

- 2.1 T}:,.e brief facts of the appeal are: The appellant claims that in 1996 he was allocated land comprised in Plot 6A in Kazaho trading centre (hereinafter known as the suit land). He paid fees to the local government between 1999 and 2000. He started ferrying building materials to the plot. He was blocked by the respondent who had started building on it. - 2.2 The appellant filed Civil Suit 7O of 2O1O against the respondent before the Chief Magistrate court of Mbarara. The court decided in favour of the appellant. The respondent being aggrieved by the decision of the court appealed to the High Court in Civil Appeal 51 of 2Ol3 where he was declared the lawful owner of the

suit land. The appellant being aggrieved by the decision of the High Court has appealed to this court.

## 3. GROUNDS OF APPEAL

- 3.1 The appellant raised the following grounds of appeal. - 1. The learned judge as first appellate court erred in law and fact in holding that the appellant's documents, exhibits "DI" and "DIII" were apparently tampered with. - 2. The learned trial judge erred in law and fact in failing to subject the entire record of proceedings to fresh scrutiny and arrive at an independent assessment and finding, which led to a miscarriage of justice against the appellant.

#### Representation

3.2 At the hearing of this appeal, the appellant was represented by Mr. Erick Muhwezi. The respondent was represented by Mr. E;zra Nyalwa.

#### PARTIES SUBMISSIONS

## 4. APPELLANT'S SUBMISSIONS

4.1 The appellant abandoned ground 1 and proceeded to address the second ground. He submitted that this appeal is a second appeal after the one to the High Court from a magistrate's court. He submitted further that under Rule 32(2) of the Judicature (Court of Appeal Rules) Directions this court as an appellate court is empowered to appraise the inferences drawn by the trial court but does not have discretion to hear additional evidence. He cited Henry Kifamunte u Uganda Criminal Appeal 1O of 1997 where it was held that "On second appeal, the Court of Appeal is precluded from questioning the findings of facts of the trial court

pe.2

provided that there was evidence to support those findings" The appellant submitted that in order for the second appellate court to interfere with the findings of fact by the trial court and the first appellate court, it has to be shown that the first appellate court erred in law or in mixed fact and law to justify an intervention.

- 4.2The appellant submitted that both parties claimed that they had been allocated the suit land. The respondent claimed he was allocated the land by the Local Council 1 (LC1) allocation committee in 1996 while the appellant by the Local Council 2 (LC2) executive committee in 1995. The magistrate considered and evaluated both parties'evidence and concluded that the appellant was the lawful owner. On appeal, the high court found the general receipt of the respondent as genuine while that of the appellant as suspicious having been tampered with. The appellant submitted that it is clear from the judgement of the High Court that it did not appraise the evidence of the parties. He contended that that the general receipts were issued by the sub-county under the local government. That the receipts were not challenged in cross- examination and no handwriting expert was called. - 4.3 The appellant submitted that the respondent departed from his pleadings, which is not permissible. He contradicted himself when he said he paid Shs 5O,OOO to the appellant yet he says the plot was allocated to him by the LCII committee. The respondent conceded that the plot was allocated to the appellant. The LC 1 Chairman of Kajaho stated that the respondent bought the plot from the appellant which contradicted the evidence that the respondent was allocated the plot. He contended that no body admitted allocating Plot 6A to the respondent. He concluded that the overall appraisal of the evidence on the court record shows without doubt that the suit land belonged to the appellant.

## 5. RESPONDENT'S SUBMISSIONS IN REPLY

5.1 In reply, the respondent raised a preliminary objection. He submitted that grounds of appeal filed and framed by the appellant were not in conformity with the law. He cited Section 74 of the Civil Procedure Act which restricts the grounds of appeal on a second appeal. He submitted that ground one was on evidence. The last ground was that the judge failed to evaluate evidence. He submitted that the role of a second appellate court was stated in Kifumunte Henry u Uganda Criminal Appeal 1O of 1997 as:

> "On second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial court, provided that there was evidence to support those findings, though it may think it possible or even probable that it would not have itself come to the sarne conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law."

The respondent submitted that in order for the second appellate court to interfere, it has to be shown that the first appellant court erred in law or in mixed fact and law to justify intervention. The respondent also cited Rule 32 of the Judicature (Court of Appeal Rules Directions) Rules which states that:

"On any second appeal from the decision of the High Court acting in the exercise of its appellant jurisdiction, the court shall have the power to appraise the inferences of fact drawn from the trial court, but shall not have discretion to hear additional evidence..."

- 5.2 On the lirst ground, the respondent reiterated his submission on Section 74 of the Civil Procedure Act. He contended that the appellate judge properly reevaluated the evidence of the trial magistrate and arrived at an independent conclusion. He discharged his duty. - 5.3 On the second ground, the respondent submitted that the appellate judge properly re-evaluated the evidence on record and reached an independent conclusion that he was the rightful owner of Plot 6A, at Kajaho trading centre.

The respondent cited Bakaluba Peter Mukasa u Nambooze Bettg Bakireke Election Petition Appeal 04 of 2OO9 where it was stated that:

"There is no set format to which a revaluation of evidence by a first appellate court should conform. The extent and evaluation may be done depends on the manner in which the circumstances of each case and the style used by the first appellant court."

The respondent concluded that this appeal has no merit and should be dismissed with costs.

## 6. APPELLANT'S SUBMISSION IN REJOINDER

- 6.1 In rejoinder, the appellant reiterated that he abandoned the first ground of his appeal which the respondent does not seem to have appreciated. It was not necessary for the respondent to submit on the said ground. - 6.2 On the second ground, in respect of the preliminary objection the appellant submitted that it conformed to the law. He cited Ssessazl Kalabira u Robinah Nalubega Civil Appeal 55 of 2OO2 where the court held that the learned appellate judge failed in his duty to re-appraising the e'ridence afresh and subjecting it to exhaustive scrutiny as the law requires. The appellant submitted in Bagula Joseph and 2 others u Lubega George William Civil Appeal 139 of 2Ol4 that ground of appeal being challenged was on failure of the first appellant court to re-evaluate the evidence on court record relating to the subject matter. The Court of Appeal held that ground passed the test. The appellant submitted the instant appeal is similar to the said appeal. - 6.3 The appellant invited this court as a second appellate court to reappraise the reference of the facts drawn by the trial court and make its own decision. He submitted that in re-appraising the evidence on record, the court's power is not limited to evidence but extends to consideration of the law applicable. He further submitted that the law applicable was the Land Reform Decree. He cited Section

5(2) of the Land Reform Decree which mandated any agreement or transfer purporting to create a customary tenure contrary to the Section to be null and void. He stated that Section 6 of the Decree creates an offence for one to occupy land unlawfully. The appellant cited Regulation 1 of the Land Reform Regulations which provided that any person wishing to obtain permission to occupy public land by customary tenure to apply in the prescribed form. Regulation 1(2) mentioned the particulars to be stated in the prescribed form while Regulationl(3) provided how the applicants would be registered as customary occupants by the sub-county land committee. The appellant submitted that he followed the procedure prescribed and was allocated the suit land.

## 7. DETERMINATION OF COURT

7.1 I note that the appellant abandoned ground 1. Therefore, I shall not address it. The only remaining ground which stands is ground 2 which reads:

> "The learned trial judge erred in law and fact in failure to subject the entire record of proceedings to fresh scrutiny and arrive at independent assessment and finding which led to a miscarriage of justice against the appellant."

The respondent being aggrieved with the said ground raised a preliminary objection under Section 74 of the Civil Procedure Act and Rule 32(2) of the Judicature (Court of Appeal Rules) Directions.

#### 7.2 Section 72 of the Civil Procedure Act reads:

"Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that-

- (a) the decision is contrary to law or to some usage having the force of law - (b) the decision has failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits."

ln Serufusa Ronald v Zirimenya Jimmy and 3 others Civil Appeal 16 of 2013 the Court of Appeal Justice Cheborion Barishaki said the effect of the Section is to bar second appeals from being filed on matters of facts or matters of mixed facts and law. ln Henry Kifamunte v Uganda Criminal Appeal 10 of 1997, it was held that "On second appeal the Court of Appeal is precluded from questioning the findings of facts of the trial court provided that there was evidence to support those findings."

7.3 Rule 32 of the Judicature (Court of Appeal Rules) Directions states that:

ln Uganda Deuelopment Bank u National Insurance Corporation & GM Combined (U) Ltd. SCCA 28 of 1995, [1996] UGCA 5 (29 June 1996), it was held that:

"A court of appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice."

While Section 72 of the CPA deals with the grounds on which a second appeal may lie, Rule 32 of the Court of Appeal Rules) Directions is concerned with additional evidence. A reading of the second ground in the memorandum of appeal shows that it does deal not with additional evidence. However, the submissions seem to raise additional evidence.

7.3 In order to determine whether the appellant is raising issues of facts and or of mixed facts and law, there is also need to read the submissions. The appellant's main contention is that the High Court did not appraise evidence of the parties.

The appellant submitted that the general receipts he relied on were issued by the sub-county local government. They were not challenged in cross- examination and no handwriting expert was called. Such a challenge or contention is on matters of facts and not law.

- 7.4 In his submissions in rejoinder, the appellant cited the Land Reform Decree and the Land Reform Regulations. He submitted that he followed the procedure prescribed under the Act and the Regulations and was allocated the land. This submission is on mixed facts and law. However, the issue of the procedure the appellant followed under the Land Reform Act and its Regulations was not raised nor addressed at the trial court nor at the first appellate court. It was not possible for both the trial court and the appellate court to have addressed the procedure the appellant followed when no evidence was adduced to that effect. I note that this is an attempt to introduce additional evidence. What the trial magistrate relied on were receipts as proof of ownership. - 7.5. On appeal from the trial court, the list appellate court decided in favour of the respondent because it felt that the receipts the appellant was relying on did not seem genuine. That is factual. By abandoning the first ground, the appellant was conceding that the receipts it relied on were not genuine as proof of ownership as per finding of the appellate Judge. What is surprising is that both the trial magistrate and the appellate court did not notice that the disputed receipts the appellants relied on are in the names of Bakanturaki Africano and not the appellant. Even the application to obtain the land adduced at the trial court is in the names of Bakanturaki Africano. The said person did not testify and there is no evidence on his relationship with the appellant or how he transferred the disputed land to the latter. The respondent who had a receipt in his names from Mbarara local government showing 'sub-county only'had a stronger claim than the appellant who was relying on a receipt which the appellate court felt was not genuine and which I have noted is not in his names.

- 7.6 Taking the above into consideration, I do not see any issues of law raised in this appeal. The appellant tryrng to rely on the Land Reform Decree and the Regulations thereunder is an attempt to bring new evidence and legal arguments not raised in the lower courts. Even when in his submission he states that he followed the prescribed procedure by filling in the prescribed forms, the appellant testified (p. 22 of the record) that he applied for the plot verbally to the allocation committee. The evidence is not only factual but full of contradictions. ln Blay u Pollard [1930] 1 KB 628 at634it was stated thatcases must be decided on the issues on the record. What is in his submissions in respect of following the prescribed procedure under the Land Reform Act and its Regulations is not on record. It was never part of the evidence - 7.7 Taking the above into consideration, I find that this appeal does not have merit This appeal is dismissed with costs to the respondent. The costs of the lower courts are awarded to the appellant.

D tKampala this. \,y day of, 2025.

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

*(Coram: Cheborion Barishaki, Moses Kazibwe Kawumi, Asa Mugenyi, JJA)*

#### CIVIL APPEAL NO. 058 OF 2015

RUGOGAMU AFRICANO::::::::::::::::::::::::::::::::::::

#### **VERSUS**

ERINEO KABALE:::::::::::::::::::::::::::::::::::

#### **JUDGMENT OF CHEBORION BARISHAKI, JA**

I have had the benefit of reading in draft the judgment prepared by learned brother Hon. Justice Dr. Asa Mugenyi, JA. I agree with the reasoning and orders he has proposed and I have nothing useful to add.

Since Justice Moses Kazibwe Kawumi, JA also agrees, the appeal is dismissed with costs to the respondent and the costs of the lower Courts are awarded to the appellant.

Dated at Kampala this ....................................

Cheborion Barishaki

**JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 058 OF 2015

RUGOGAMU AFRICANO APPELLANT

VERSUS

ERINEO KABALE RESPONDENT

CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA HON. JUSTTCE MOSES KAZTBWE KAWUM!, JA HON. JUSTTCE DR. ASA MUGENY|, JA

# JUDGMENT OF MOSES KAZIBWE KAW U MI, JA

I have had the benefit of reading in draft the Judgment prepared my learned brother the Hon. Justice Dr. Asa Mugenyi, JA. I agree with the reasoning and orders he has proposed. I have nothing useful to add.

Dated and detivered at Kampala this ..1 '\*day of )\_02.5.

Moses Kazibwe Kawumi JUSTICE OF APPEAL