Settuba v Sserunkuma (Civil Appeal 21 of 2024) [2025] UGHC 285 (12 May 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA LD - CIVIL APPEAL NO.0021 0F 2024

(Arising from the judgment and orders of HW Bbosa Micheal Principal Magistrate Grade one in Land Civil Suit No. 043 of 2020 at Kiboga Chief Magistrates Court)

# SETTUBA PETER PAUL:::::::::::::::::::::::::::::::::::: **VERSUS** SSERUNKUMA BEN ALI::::::::::::::::::::::::::::::::::::

### BEFORE HON. MR JUSTICE KAREMANI JAMSON. K

#### **JUDGMENT**

#### **Introduction**

The appellant who was the plaintiff in the lower court being dissatisfied with the judgement and orders of the Principal Magistrate Grade One delivered on 18<sup>th</sup> December 2023, at the Chief Magistrate's Court of Kiboga at Kiboga brought this appeal seeking for orders that the appeal be allowed, the suit kibanja measuring five acres be declared to form part of the estate of the late Nasejje Maria and that any other remedies deemed fit by court be granted.

#### Background to the appeal

The Appellant filed Civil Suit No. 043 of 2020 in the Chief Magistrates Court of Kiboga at Kiboga against the respondent in seeking a declaration that he is the rightful owner of the suit land, that the respondent is a trespasser, for issuance of a permanent injunction, an eviction order, an order for compensation for trespass, an award of general damages and costs of the suit.

The appellant's case was that the suit land formed part of the estate of his late mother Maria Nasejje and that him and his brother Yoana Bbosa inherited the same upon their mother's

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demise. That their late mother had purchased the said land from the defendant's grandfather George William Kagulire in 1950.

That around 2018, the defendant started chasing the plaintiff and his brother out of the suit land.

The respondent denied the appellant's claims and averred that he is the registered owner of 45 acres of mailo land comprised in plot no. 7 block 667 at Kiboga. That what the appellant claims as the suit kibanja of 5 acres does not exist on his land and that the appellant's mother never bought any land from his grandfather. That he was only aware that the appellant's brother Yoanna Bbosa owned 2 acres of land on the said 45 acres that was given to him by the late George William Kagurile.

The trial Magistrate found that the appellant's claim of 5 acres on the defendant's land was baseless and dismissed suit with costs thus this appeal.

#### Representation.

The appellant/plaintiff was represented by $M/S$ Simul Advocates while the respondent/defendant was self-represented and filed no submissions.

The appellant's counsel filed written submissions which have been considered in the determination of this appeal.

#### Grounds of appeal

The Appellant raised 8 grounds of appeal in his memorandum of appeal namely;

- 1. The learned trial Magistrate erred in law and fact when he did not decide whether the late Nasenje Maria had interest in the suit kibanja. - 2. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong conclusion. - 3. The learned trial Magistrate erred in law and fact when she failed to conduct locus visit in accordance with established principles. - 4. The trial magistrate erred in law and fact when he failed to resolve issues framed for determination by court.

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- 5. The learned trial Magistrate erred in law and fact when he held that the suit kibanja does not belong to the estate of the late Nasejje Maria thereby depriving the estate of its property hence occasioning a miscarriage of justice. - 6. The trial magistrate erred in law and fact when he determined the matter whose subject matter is beyond his pecuniary jurisdiction. - 7. The trial magistrate erred in law and fact when he failed to evaluate appellant's evidence relating to ownership of the suit kibanja. - 8. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record and found that the plaintiff's brother owns 2 acres kibanja out of the suit kibanja.

#### Duty of the first appellate court

The duty of a first appellate court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower court. See: Section 80 of the Civil Procedure Act. This position has also been restated in a number of decided cases including Fredrick Zaabwe V Orient Bank Ltd CACA No. 4 of 2006; Kifamunte Henry V Uganda SC CR. Appeal No. 10 of 1997; and Baguma Fred V Uganda SC Crim. App. No. 7 of 2004. In the latter case, Oder, JSC stated thus:

"First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such reevaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court".

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#### Consideration of the grounds of appeal.

I have looked at ground 3 of the appeal on failure to properly conduct the visit of locus by court and am of the view that I begin with the same because if it is allowed it disposes of the whole appeal.

#### Ground 3

The learned trial Magistrate erred in law and fact when she failed to conduct locus visit in accordance with established principles.

The learned counsel for the appellant submitted that while the matter was adjourned for locus visit on 17<sup>th</sup> May 2023, according to the record of proceedings at page 19 there is no record of locus proceedings.

Counsel cited the case of The Registered Trustees of the Archdiocese of Tororo v Wesonga Reuben Malaba & others HCCA No. 0096 of 2009.

#### Analysis of court.

Indeed, in the instant case there is no record of the locus proceedings conducted by the trial court. The perusal of the original record of proceedings contain an attendance list of the locus visit dated 7<sup>th</sup> June 2023. There is also a sketch plan that is not titled and does not indicate the land in dispute. It has no key to explain the contents of the locus findings.

"Locus in quo" is a Latin word meaning "scene of the event". It is a place where anything is alleged to have been done.

Order 18 rule 14 of the Civil Procedure Rules provides that the court may at any stage of the suit inspect any property or thing concerning which question may arise.

The Practice Direction no.1 of 2007 by The Chief Justice of Uganda, Guideline 3 provides for how locus in quo proceedings should be conducted where the court decides to visit the locus.

It states;

"During the hearing of land disputes, the court should pick interest in visiting the locus in quo and while there:

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- a) Ensure that all parties, their witnesses, and advocates if any are present. - b) Allow the parties and their witnesses to adduce evidence at 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 observations, view, opinion or conclusion of the court including the sketch plan if necessary."

See: Olum Peter -V- Modikayo Obina Hcca No. 42 Of 2013.

In the case of Alule Richard V Aque Domnic Civil appeal no. 32 of 2014, the court observed as follows:

"The determination of whether or not a court should inspect the locus in quo is an exercise of discretion of the magistrate which depends on the circumstances of each case. That decision essentially rests on the need for enabling the magistrate to understand better the evidence adduced before him or her during the testimony of witnesses in court. It may also be for purposes of enabling the magistrate to make up his or her mind on disputed points raised as to something to be seen there."

In the case of Oyua Enock V Okot William and 9 Others HCCA NO. 22 of 2014 while addressing a ground on locus in guo proceedings court observed that:

"Where the purpose of visiting the locus is to enable the trial magistrate understand better the evidence adduced before him or her during trial and not for purposes of enabling him make up his or her mind on disputed points raised as to something to be seen there or the determination of the question of ownership of the land based on existing features to be seen at the locus in quo, an irregularity in the locus proceedings may not necessarily lead to a miscarriage of justice as a decision could be made based only on the evidence adduced in court."

It is my own position that where a judicial officer bases his or her decision on the features seen at the locus, any irregularities in the locus proceedings lead to a miscarriage of justice.

Why

In the instant case, the trial magistrate in his judgment referred to the observations he made at the locus which included facts that the appellant was not resident on the suit land and that PW2 was a resident on the suit land. He further relied the fact that the late Maria Nasejje was the only one buried on the land in issue.

These findings from the visit of the locus in quo formed a big part of the decision made by the trial magistrate yet these facts cannot be traced in the locus visit proceedings.

It is my considered view that failure to record proceedings at the locus was irregular and by relying of facts that were not contained in the proceedings and which this appellate court cannot verify lead to a miscarriage of justice.

I hence allow this ground of appeal.

With the above finding the appeal as a whole is disposed of and I need not to venture into the other grounds of appeal.

I find that this appeal has merit it is hereby allowed.

I do find that for justice to be served there is need for a retrial of this matter.

I accordingly order that the matter to be remitted for a retrial by the Chief Magistrate's court of Kiboga.

Each party shall bear its own costs of this appeal and the lower court since the irregularity was caused by the trial magistrate.

I so order.

Wam

KAREMANI JAMSON. K

JUDGE.

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