Rukambonesa v Biira (Civil Appeal 24 of 2024) [2024] UGHC 658 (25 June 2024)

**THE REPUBLIC OF UGANDA,**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**CIVIL APPEAL NO. 24 OF 2024**

**(FORMERLY FORT PORTAL HIGH COURT CIVIL APPEAL NO. 11 OF 2021)**

**(Arising from Kasese Chief Magistrate’s Court KAS-OO-CV-CS-LD NO. 0034 OF 2019)**

**RUKAMBONESA NYASIO**

**BEBWA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

**VERSUS**

**BIIRA SOPHIA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

**JUDGEMENT**

**REPRESENTATION:**

Appellant represented by Mugabe-Luleti & Co. Advocates

Respondent represented by Ahabwe James & Co. Advocates.

**BACKGROUND:**

This is an appeal against the judgment and orders of His Worship Edgar Karakire, the Magistrate Grade 1 (as he then was) of the Chief Magistrate’s Court at Kasese delivered on the 12th day of April 2021.

The facts of the matter in the lower court are that the Plaintiff/Appellant brought a claim against the Defendant/Respondent for a declaration that Defendant/Respondent was a trespasser on land forming part of the estate of the Plaintiff/Appellant’s late father and further sought injunctive orders against the Plaintiff/Defendant and her agents. The Plaintiff/Respondent further sought orders for vacant possession, general damages, mesne profits and costs of the suit.

The Plaintiff/Appellant claimed that the Defendant and her agents had encroached upon the suit land located at Ndugutu Village, Muhambo Parish, Bugoye Sub-County, Kasese District around 2002 and the matter had led to the intervention of the LC1 and LC3 courts and later the Chief Magistrate Court in Kasese which had set aside the LC court decisions. The Plaintiff/Appellant then filed a suit before the Magistrate Grade 1 Court at Kasese Chief Magistrate Court based upon the aforementioned facts. The lower court decided the case against the Plaintiff/Appellant finding that the suit land belonged to the Defendant/Respondent. The Plaintiff/Appellant being aggrieved with the lower court decision appealed to this court on the following grounds.

1. The trial court erred in law and fact when it failed to evaluate evidence on record and came to a wrong conclusion that the appellant failed to prove his own case on the balance of possibilities hence occasioning a miscarriage of justice. 2. The learned Trial Magistrate erred in law and in fact when he rejected the evidence of PW3 of her having been young at the time of the cause of action arose, not being listed on the witness and not being a neighbor at the suit land hence occasioning a miscarriage of justice. 3. The learned Trial Magistrate erred in law and fact when he rejected the evidence of PW3, on account of her being the wife of the appellant hence occasioning a miscarriage of justice. 4. The learned Trial Magistrate erred in law and fact when he failed to evaluate evidence on record and ruled that the evidence of the respondent was well corroborated by her witnesses yet there were inconsistencies hence occasioning a miscarriage of justice.

**RESOLUTION OF THE APPEAL:**

Counsel for the Appellant and Respondent filed written submissions in this appeal which submissions I have duly considered and will take into account in the resolution of this appeal.

The duty of this Court as a first appellate court was set down by the Supreme Court in the case of **Father Nanensio Begumisa and three others v. Eric Tiberaga Civil Appeal No. 17 of 2000** where it was held that,

*“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 upon the principles above that I am now guided in considering this appeal.

Before delving into the substantive grounds of the appeal I shall first consider a preliminary point of law raised by Counsel for the Respondent. Counsel argued that Grounds 1 and 4 ought to be struck out as they did not specifically address the evidence upon which the Trial Magistrate erred contrary to Order 43 Rule 2.

While Counsel cited Order 43 Rule 2 of the Civil Procedure Rules in his submissions the context of the submissions related to Rule 1(2) which provides that,

*“The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively.”*

In the case of **Ibaga Taratizio Vs Tarakpe Faustina Civil Appeal No. 04 of 2017*,*** Justice Stephen Mubiru held that:

*“A ground of appeal that is general in nature and does not identify any specific error committed by court whose decision is appealed or identify the specific matter of fact, law or mixed law and fact that was wrongly decided so as to guide and require the appellate court to make a specific finding to the extent of re-valuating evidence, is not sustainable for it does not call for any specific adjudication.”*

Based upon the Civil Procedure Rules and the case above, it is apparent to me that a ground of appeal must be:

1. Concise and distinct – Clearly identifying the matter of law, fact or mixed fact and law warranting the attention of the first appellate court. 2. Devoid of argument and/or narrative.

To me this means that the test for any ground of appeal is whether it brings out an appealable issue as briefly and to the point as possible and furthermore it is not couched in argumentative and narrative form as to render it impossible to discern the actual ground of appeal.

When I consider Ground 1 of the appeal, I find that it is too general and is lacking in conciseness. The evidence that the Appellant deemed the Trial Magistrate as having failed to evaluate ought to be set forth as distinct and separate grounds. To that extent, the matter of law and/or fact for which this Court’s intervention is sought is not evident. I therefore strike out Ground 1.

As concerns Ground 4, I do find that it is also general and lacking in conciseness to the extent that the inconsistencies alluded to were not set forth distinctly as grounds of appeal. I therefore also strike out Ground 4.

Before I take leave of this matter, I wish to stress that the framing of grounds of appeal should not be done in general or omnibus terms. Each matter of law and/or fact must be raised as a separate ground and distinctly identifiable in its own right and not brought under a general head. Short of this, there is a risk of the appellate court drawing out being drawn into specific issues in grounds for which the Respondent has not had the benefit to respond.

An Appellate court’s exercise of the power to review the evidence depends on whether the trial judge failed to take into account any particular circumstances or probabilities or whether the demeanour of the witness whose evidence was accepted was inconsistent with evidence generally (see **Milly Masembe v Sugar Corporation Uganda Limited and Another – Supreme Court Civil Appeal No. 1 of 2000 cited in Civil Procedure and Practice in Uganda 2nd Edn p. 435 by M. Ssekaana and S. Ssekaana**). By this holding, a ground of appeal must speak to a specific circumstance or probability and not simply laid out in general terms.

**ANALYSIS AND RESOLUTION OF GROUNDS 2 AND 3:**

Counsel for the Appellant argued grounds 2 and 3 together. He argued that the Trial Magistrate erred when he rejected the evidence of PW2 on the grounds that she was too young and that furthermore, the Trial Magistrate erred when he rejected the evidence of PW3 on account of her being the wife of the Appellant. In both cases it was Counsel’s contention that the rejection led to a miscarriage of justice. He argued that both witnesses testified about the history of the land and the disputed boundary but that both witnesses’ testimony had subsequently been unfairly rejected.

In the case of PW2 Flavia Kabalisa whose evidence Counsel argued was corroborative of PW3s evidence, the Trial Magistrate stated in his judgment that,

*“… she knows very well the suit land belongs to the plaintiff’s parents. That she was born in the early 1980s and that she does not know her years but they appear on her baptism card. That she was not there when the ridge leader, one Itwara Andrea showed the defendant her boundaries, nor has she ever been summoned to testify over the dispute of the plaintiff’s parents and the defendant. For someone who does not know when she was born I found her entire testimony to be quite unconvincing. If she was born in 1980 as she supposed, her young years make her unable to be well knowledgeable concerning the suit land’s history. Indeed, she is not an immediate neighbour to the suit land as she was not listed by the plaintiff or any of the witnesses as being so.”*

The Trial Magistrate then went on to state of PW3s evidence that,

*“This would leave the evidence of the plaintiff’s wife as the only corroborating evidence. However, because of her obvious interest in the subject matter, I could not place a lot of weight and evidentiary value onto her testimony.”*

It was Counsel’s contention that the errors above demonstrated that the Trial Magistrate did not properly evaluate the Appellant’s evidence and arrived at a wrong conclusion.

Counsel for the Respondent submitted in response that the Appellant and his witnesses did not lead any evidence regarding the boundary of the suit land. He further argued that this Court should be guided by the observations of court, which visited locus, and the Respondent’s witnesses who were present when the Respondent’s husband acquired the land which constituted the suit-land.

Counsel for the Respondent then went on to outline the evidence of all the Respondent’s witnesses before the lower court arguing inter alia that the Trial Magistrate, being alive to all the testimony of the Respondent’s witnesses, had observed that the boundary line had been tampered with and that part of the Respondent’s land had been given to the Appellant by authorities.

Counsel for the Respondent also argued that on the basis of Section 166 of the Evidence Act rejection of evidence alone is not a ground for reversal of a decision if there was sufficient evidence to justify the decision.

I have had the benefit of reviewing the pleadings and the lower court record in this matter. To that extent what is immediately apparent to me is that the decision of the Learned Trial Magistrate left a measure of uncertainty especially with regard to the legal foundation upon which the decision was rendered.

Section 101 of the Evidence Act provides that,

1. *Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.* 2. *When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.*

Section 102 then provides that the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side.

Going by the provisions above, the lower court decision should have been premised upon whether or not the Plaintiff proved his case or not. However, when I reviewed the judgment and the pleadings in this matter what was immediately apparent was that the Plaintiff’s cause of action was founded upon his right as a beneficiary to the estate of his late father one Bebwa. To that extent, the Plaintiff’s prayer inter alia was for a declaration that the suit land belonged to the estate of the late Bebwa. However, according to Paragraph 4 of the Plaintiff’s witness statement he claimed the land as his own having acquired the same through hereditary means after the death of his father. This was clearly a departure from the Plaintiff’s original pleadings where was claiming as a beneficiary of the estate and as such seeking a declaration that the land was part of the estate of his late father.

The suit land clearly could not be claimed as part of the estate of the Plaintiff’s late father and yet also be claimed in his testimony without proof of succession whether by way of grant of Probate or Letters of Administration. This was a central issue that went to the heart of the cause of action and ought to have been addressed. However, given that the court’s final decision was in favour of the Respondent/Defendant, I find that there was no apparent miscarriage of justice in that regard.

Counsel for the Appellant argued in Grounds 2 and 3 that the rejection of the evidence of PW2 and PW3 respectively had occasioned a miscarriage of justice.

As concerns PW2, the Learned Trial Magistrate is on record as discounting her evidence on the grounds that she was too young to be knowledgeable about the suit land and was not an immediate neighbour to the suit land. While this may have been the case, it was still incumbent upon the Trial Magistrate to demonstrate by way of specific reference to the Plaintiff’s testimony that PW2s evidence was either corroborating or contradicting the Plaintiff’s evidence. Furthermore, it was also important to evaluate this evidence alongside that of the Defendant’s witnesses to clearly demonstrate how PW2s evidence fell short. It was not sufficient to simply discount the evidence on the grounds that PW2 was too young. It would also be necessary to evaluate the evidence for which she was old enough to have perceived for herself. It was therefore irregular on the part of the Trial Magistrate not to have demonstrated how he evaluated PW2s evidence against all the other evidence.

With regard to PW3s evidence, I similarly find that the Trial Magistrate fell short of the required standard of evaluation of evidence. It was not enough to simply state that he could not place a lot of weight and evidentiary value on her evidence because of her obvious interest in the subject matter as wife to the Plaintiff. The Learned Trial Magistrate was clearly concerned that PW3s evidence was coming from a point of conflict of interest. However, it was still incumbent upon the Trial Magistrate to evaluate the evidence and confirm whether there was an apparent conflict of interest. This could only be done by weighing the evidence in terms of corroborative value, consistency and all the other factors relevant to assessing whether witness testimony is reliable or not. To conclude that PW3s evidence was lacking because of conflict of interest without actually evaluating the evidence against the other available evidence was improper.

However even more importantly, Section 121 of the Evidence Act provides that,

“*In all civil proceedings, the parties to the suit, and the husband and wife of any party to the suit, shall be competent and compellable witnesses.”*

Going by the provision above, the Learned Trial Magistrate did not have a legal basis to exclude or assign lesser evidential value to PW3s evidence on account of her being a wife to the Plaintiff. The law clearly allows evidence to be received from a spouse in civil proceedings.

However, as much as the Trial Magistrate did in fact err when he failed to properly evaluate the evidence of PW2 and PW3, I do take into account Section 166 of the Evidence Act which provides that,

*“The improper admission or rejection of evidence shall not be ground of 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 to have varied the decision.”*

In order for the aforementioned errors of the Trial Magistrate to cause a reversal of the decision reached in his judgment, it must be clear that those errors occasioned a miscarriage of justice whose effect is such that a wrong decision was made. In order to determine whether there was a miscarriage of justice, I bear in mind the primary basis for the Trial Magistrate’s decision.

The Trial Magistrate held in his decision that the Plaintiff had failed to prove his case. He particularly stated at Page 2 of the judgment that,

*“In matters of a civil nature it is the duty of the plaintiff to prove their case against the defendant on a balance of probabilities. However, based on the oral testimonies as they were adduced in court, I found that the plaintiff here had failed in convincing court of his claim. His witnesses, particularly PW3, were shallow and unreliable and did not satisfy court as to the plaintiff’s ownership of the suit land, nor indeed that there was a boundary line which had been [unlawfully] moved from its original place by the authorities. In fact court found the defence case to be a lot more convincing, based upon the experience, as well as the knowledge of the facts displayed by the defence witnesses, and the ample corroboration which that rendered to the defendant’s version of events.”*

With regard to the above, it was the view of Counsel for the Respondent that this court should be guided by the observations of the lower court which visited the locus and furthermore to be mindful of the fact that this is a boundary dispute for which I did not see the boundary. However while I do agree with Counsel for the Respondent, in order for me to be persuaded that the observations of the lower court were correct especially since this matter involved a boundary dispute, there should be a clear record of proceedings at the locus in quo. Furthermore, the decision of the Trial Magistrate ought to contain specific references to the findings at the locus in quo. As a first appellate court, I am expected to not only scrutinize the evidence of the lower court but to also make findings and draw my own conclusions on whether the decision of the lower court is supported by fact and law. In that regard I find that there was no mention of a locus visit in the judgment and there was no clear record of proceedings at the locus in quo.

What was evident on the court record was a sketch map dated 9th April 2021 with some notes referring to remarks made by the Plaintiff and Defendant at the locus visit. There is also an attendance list dated 9th April 2024. Direction 3 of Practice Direction No. 1 of 2007 on the Issue of Orders relating to Registered Land which affect or impact on the tenants by occupancy provides that during the hearing of land disputes the court should take interest in visiting the locus in quo and while there;

1. Ensure that all the parties, their witnesses, and advocates (if any) are present. 2. Allow the parties and their witnesses to adduce evidence at the locus in quo. 3. Allow cross-examination by either party or his or her counsel. 4. Record all the proceedings at the locus in quo. 5. Record any observation, view, opinion or conclusion of the court including a sketch plan if necessary.

Additionally and in relation to the above, in the case of **Fernandes v Noronha (1969) EA 506**, Justice Duffus V-P held at P. 508 that,

*“I would mention here that it appears from the record that the judge, although reluctantly, did the locus in quo, but unfortunately there is no report of his visit on the record although this is mentioned in his judgment. The judge does not in this case appear to have relied on any of his own observations, but in cases where the court finds it expedient to visit a locus in quo, the court should make note of what took place during the visit in its record and this note should be either agreed to by the advocates or at least read out to them, and if a witness points out any place or demonstrates any movement to the court, then this witness should be recalled by the court and give evidence of what occurred.”*

Going by the requirements stipulated in the foregoing Practice Direction and the above-mentioned case, once the Trial Magistrate determined that a locus visit was necessary then he was duty bound to allow the parties and their witnesses to adduce evidence at the locus. He would then allow cross-examination and also record the proceedings at the locus in the same manner as would be done in court. There is no evidence that the parties or their witnesses were examined on oath and cross-examined at the locus. There is only a sketch plan on record and an attendance list both of which fall short of proving that court proceedings actually took place at the locus. There is therefore no way for me to determine whether the locus in quo visit formed an integral part of the decision of the Trial Magistrate despite Counsel for the Respondent urging me to consider the fact that the Trial Magistrate visited the locus.

In light of the above, I feel that I must point out that a locus in quo visit is not simply a box-ticking exercise. It is a critical part of the process of gathering, confirmation and evaluation of evidence. Once it is done then there must be a clear record of what transpired both on the court record and also in the judgment during the evaluation of evidence. The absence of a clear record of the proceedings at the locus and the lack of reference to the same in the judgment calls into question the basis upon which the Trial Magistrate arrived at the conclusion that the suit land belonged to the Defendant. This is especially the case because the Plaintiff had called into contention the adjustment of boundaries by the LC1 authorities and the Defendant had also alluded to part of her own land being given to the Plaintiff as part of an amicable settlement at some point in the past. Evidence of this nature needed to be confirmed by way of proceedings at the locus in quo. Unfortunately there is no record that any court proceedings took place at the locus.

To the extent of the above, I do find that the Trial Magistrate erred to the extent that he failed to properly evaluate the evidence of PW2 and PW3. These errors when combined with the failure to weigh the evidence against the rest of the evidence in this case inclusive of the locus visit rendered the decision of the Trial Magistrate open to conjecture and speculation especially with regard to the locus visit. Without a proper record of proceedings even the sketch map cannot be relied upon to cross-check any of the witness testimonies. This Court finds therefore that the decision of the Trial Magistrate is not adequately supported both in fact and law.

Grounds 2 and 3 are therefore upheld to the extent that there is no evidence that the testimonies of PW2 and PW3 and even that of PW1 for which they were expected to provide corroboration were properly evaluated in the context of the locus visit. The said grounds are also upheld to the extent that PW3s evidence was treated as being of lesser value contrary to Section 121 of the Evidence Act.

**ORDERS:**

As already pointed out Section 166 of the Evidence Act would ordinarily preclude retrial if beyond the upheld Grounds of Appeal there was sufficient evidence to justify the lower court decision. In this case though, the decision cannot be sufficiently justified as it was completely unsupported by evidence from the locus in quo proceedings. This evidence was not even available beyond a simple sketch map for this court to satisfy itself on the sufficiency in relation to the lower court decision.

To that extent therefore I do hereby order as follows:

1. The Appeal is partly allowed to the extent of Grounds 2 and 3. 2. The judgment and decree in Chief Magistrate Court KAS-00-CV-CS-LD No. 0034 of 2019 is hereby set aside. 3. This matter is hereby referred to the Chief Magistrate Kasese for retrial with particular emphasis on ensuring that locus in quo proceedings are conducted correctly. 4. Costs in this matter shall be in the cause.

So ordered.

Right of Appeal explained.

**David S. L. Makumbi**

**JUDGE**

**25/06/24**