Simon so Bigalyo and 4 Others v Bitadwa (Civil Appeal 23 of 2022) [2025] UGHC 86 (3 February 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVIL APPEAL NO. 23 OF 2022

#### 1. SIMON S/O BIGALYO

- 2. KIEMBO S/O WANDERA - 3. BIKOBO YAHAYA - 4. BIRUNGI CLEOPHUS:::::::::::::::::::::::::::::::::::: **VERSUS**

BITADWA AUGUSTINE:::::::::::::::::::::::::::::::::::: [Appeal from the Judgment and Orders of the Magistrate Grade I of Buliisa at Buliisa dated 17/6/2022]

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### **JUDGMENT**

#### **Background:**

- The Respondent/Plaintiff sued the Appellants/Defendants in the $[1]$ lower court for interalia, trespass and declaration of ownership of the suit land situated at Kiyere village, Kigwera sub-county, Buliisa District. - It was the Respondent's case that he is the rightful owner of the $[2]$ customary land of about 50 acres at Kiyere village, Kigwera sub-Buliisa District which he inherited from his late county. grandfather, Gabolya and his brothers who also acquired the same by way of first occupation. That the Appellants embarked on the land and forcefully trespassed on it by construction of house thus land grabbing which has occasioned and continues to occasion him loss, untold anguish, discomfort, inconvenience and denied him opportunity to further develop the suit. - The Defendants on the other hand denied the Respondent's claims $[3]$ and contended that they are the owners of the land of about 5 acres in Kilyambwa area which they inherited from their great grandfather, a one Wagadembye, father to a one Bahundi who passed it on to a one Manyoro Kimoso who also later passed it to their parents; George Mwijakubi, Wandera Ganye, Francis Kamanyire and Silvester Bitalo.

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- The Appellants lastly contended that they are in occupation of the $[4]$ land which they are utilising by way of grazing of animals, tree planting and settlements. - The Appellants concluded that the Respondent has no interest in $[5]$ the suit land save for greed for compensation by the Total Oil Company which is intending to drill oil thereon because the Respondent's grandfather, Gabolya lived in Kiyere village which is about 1 km from the disputed land. - The trial Magistrate found that the Bamwori clan of the [6] Plaintiff/Respondent occupied about 50 acres of land which constitute the Plaintiff/Respondent's 3-5 acres of land in Kiyere village which the Defendants/Appellants of the Balyambwa clan of Kichoke and Ndandamire villages trespassed upon. That the Bamwori clan neighbour the Balyambwa clan demarcated by a swamp/river. He concluded and held that the suit land belongs to the Plaintiff/Respondent, a member of the **Bamwori clan**. - The Defendants/Appellants were dissatisfied with the judgment $[7]$ and orders of the trial Magistrate and as a result, they lodged the present appeal on the following grounds. - The learned trial Magistrate erred in law and fact when he $\mathcal{I}$ . failed to properly evaluate the evidence on record thus arriving at a wrong decision that the Respondent was the owner of the suit land. - The learned trial Magistrate erred in law and fact when he $2.$ with inconsistences and marred evidence relied $on$ contradictions to arrive at an erroneous decision which occasioned a miscarriage of justice. - The learned trial Magistrate erred in law and fact when he $\mathfrak{Z}$ . relied on hearsay evidence to find in the Respondent's favour which occasioned a miscarriage of justice.

### **Counsel legal representation.**

The Appellants were represented by Mr. Kabigumira Innocent of [8] M/S Legal Aid Project of ULS, Masindi while the Respondent was represented by Mr. Omara Daniel of Amani Law Chambers & Counsel filed respective their Advocates. Hoima. Both submissions for consideration in the determination of this appeal.

## Duty of the 1<sup>st</sup> Appellate Court.

This appeal being a first appeal from the Magistrate's Court, this $[9]$ court is to re-evaluate all the evidence that was presented before the trial court and make its own inference on all issues of law and fact, Fr. Narcensio Begumisa & Ors vs Eric Tibebaga S. C. C. A No. This court is therefore required to subject the 17 of 2002. evidence as a whole to fresh and exhaustive scrutiny bearing in mind that it never saw the witnesses testify and then come out with its own conclusions on the issues of law and fact.

# Consideration of the grounds of appeal.

[10] All the 3 grounds of appeal shall be considered together because they all relate on how the trial Magistrate evaluated the evidence before him to arrive at the conclusion and decision that the suit land belongs to the Respondent.

#### Evaluation of evidence and reliance on Grounds 1, $2 & 3$ : evidence marred with inconsistences, contradictions and hearsay.

- [11] Counsel for the Appellants submitted that the trial Magistrate did not properly evaluate the evidence on record to find that the Respondent/Plaintiff was the rightful owner of the suit land on the following reasons: - That as per the pleadings, the Respondent claimed that he $(a)$ acquired the suit land through inheritance yet in evidence, he stated that the land belongs to the Bamwori clan. That the above brings in the question whether the Respondent had locus to institute the present suit without a representative action order. - That whereas the Respondent (PW1) claimed that the suit land $(b)$ is located in Kiyere village, Kaliisa Daniel (PW2), claimed that the Appellant encroached on the Respondent's land in Kichoke village. - That the trial Magistrate believed the Respondent's evidence $(c)$ and neglected the evidence of the Appellants thereby shifting the burden of proof to the Appellants/Defendants which is contrary to the well-established principle of law that he who alleges must prove.

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- [12] Counsel for the Respondents on the other hand submitted that the trial Magistrate properly evaluated the evidence on record to find that the Respondent/Plaintiff was the rightful owner of the suit land. That the trial Magistrate considered the evidence at locus and found that the Appellants had trespassed on approx. 5 acres That there was a of the Respondent's land in Kiyere village. boundary line that separated the Respondent/Plaintiff's land from that of the Appellants/Defendants land, a swamp/river and that Kigwere Health Centre III, the immediate neighbour to the suit land was on the land donated by the Bamwori clan of which the Respondent/Plaintiff belong. - [13] As regards the alleged inconsistences and contradictions in the evidence of the Respondent, Counsel submitted that there wasn't anv. - the suit is between this that $in$ dispute not $[14]$ It is Plaintiff/Respondent of the Bamwori clan of Kiyere village and the Defendants/Appellants of Balyambwa clan of Kichoke and Ndandamire villages, all villages being in Kigwera sub-county, Buliisa District. It is also not in dispute that Kiyere village and called separated by a swamp/river village are **Kichoke** Wegadembi. - [15] The Plaintiff/Respondent's evidence briefly is that he is a resident of Kiyere village, in occupation and utilisation of the suit land under the Bamwori clan. That in 2018, when Total (U) came to conduct a study (exploration of oil) on the land, his neighbours, the Defendants/Appellants crossed the swamp/river boundary separating his clan village of Kiyere from that of the Appellants and grabbed and or trespassed on about 3-5 acres of land by construction of houses thereon. He contended that he has lived with his father and grandfather on the suit land, his grandfather His evidence was and father were buried on the suit land. supported and corroborated by the evidence of Daniel Kaliisa (PW2) aged 70 years, Mwakabi Constantino (PW3) aged 86 years and Wanzela Daniel (PW4) aged 76 years who was at one time the parish chief from 1973-1983 and used to collect taxes in Kivere village for the Bamwori clan. All the above witnesses are residents of Kivere village.

[16] The Defendants/Appellants on the other hand testified as follows:

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- Simon s/o Bigalyo (DW1), aged 44 years and resident of $(a)$ Kichoke village stated that he was produced and lived on the suit land but did not know the size of the suit land and admitted that the suit land is situated in Kiyere village. In cross examination, he claimed that the suit land is between 2 villages of Kichoke and Kigwere villages. - Then Kisembo s/o Wandera (DW2) aged 49 years stated that $(b)$ he is a resident of Kichoke village but claimed that the suit land measuring about 3 acres is between Kichoke and Kiyere village. In cross examination, he admitted that his father was buried in Kichoke village. - Bikobo Yaya (DW3) aged 44 years testified that he is a resident $(c)$ of Ndandamire village and also claimed that he was born on the suit land. That his father was buried on the suit land though he cannot locate the grave but admitted that where the Health Centre III (Kigwera) is located does not belong to them. - Most importantly, Basaliza Mulega Charles (DW5), aged 50 $(d)$ years, testified that he is the Chairman Management of Kigwera Health Centre III, testified that the sub-county bought land where the Health Centre is located from a one Daniel Ngalala but he did not know Ngalala's clan. He however insisted that the grandsons of a one Owundi, of Balyambwa All the Appellants' clan were buried on the suit land. witnesses save for DW5 are of Balyambwa clan. - [17] Upon evaluation of both the Respondent and the Appellants evidence, the trial Magistrate found thus:

"In essence, the Plaintiff [Respondent] and members of the Bamwori clan have adduced evidence that they occupied and utilised the suit land on which they graze and had constructed houses and grew crops and a number of their fore fathers and relatives have since been buried on the The Defendant [Appellants] did not adduce any same. evidence to controvert the Plaintiff's [Respondent] evidence and while at locus, court was able to confirm the evidence of The Defendants [Appellants] the Plaintiff [Respondent]. being members of the Balyambwa clan only own the land across the river/swamp which has a clearly marked out boundary"

[18] I find no reason to fault the trial Magistrate's findings as per the above. The evidence on record clearly show that the Appellants of the Balyambwa clan - are restricted to that land across the river/swamp where they reside. It is inconceivable, for example, Birungi Cleophus (DW4) to state in evidence that he is a resident of Masaka village, Kigwera sub-county and in cross examination he insists that he was born and lived on the suit land located in Kiyere village, all his life. His explanation that the suit land is located at Kilyembwa village, where his family lives in but only doing business in Masaka village is not supported by any evidence from his fellow Appellants. The same apply to Bikobo Yaya (DW3) who stated that he is a resident of Ndadamire village and during cross examination also insisted that he was born on the suit land.

- [19] The claim by Counsel for the Appellants about the contradiction of the Respondent's claim that he inherited the suit land from his grandfather and at the same time claiming that the property is of the Bamwori clan is without merit. There is no contradiction. It is not in dispute that the Respondent is of the **Bamwori clan**. As a member of the Bamwori clan, the Respondent is entitled to state that his land is of the Bamwori clan, his clan. As a result, the Respondent needed not institute this suit on behalf of the Bamwori clan so as to require a representative order under **O.1 r.8 CPR.** The authorities of Paul Kenyima vs Rugoora [1982] HCB 33 and Kenneth Tumuhamwe & Anor vs Harriet Nakamya & Anor H. C. C. S No. 42 of 2015 are therefore not applicable to this suit. - [20] In the premises, under Art. 126 (e) of the Constitution which prohibits us from relying on technicalities and depriving parties of their rights to pursue their substantive rights since in this case, the Respondent filed the pleadings personally without the aid of counsel and for reasons given above, I do find that the Respondent has locus to institute the instant suit. - [21] As regards the claim by Counsel for the Appellants that there is a contradiction in the Respondent's case regarding the location of the suit land, I do not see or find any contradiction. The overwhelming evidence on record is to the effect that the suit land is located in Kiyere village, Kigwera sub-county, Buliisa District. - [22] As regards the claim by Counsel for the Appellants that the trial Magistrate relied on hearsay, Counsel did not highlight in his submissions such hearsay evidence that was allegedly relied on by the trial Magistrate before he arrived at the conclusion that the suit land belongs to the Respondent.

- [23] In the premises, since the Appellants did not deny the alleged acts of trespass, again, I would not fault the trial Magistrate in his finding that the Appellants were trespassers on the suit land. - [24] In conclusion, as a result of the above reasons, grounds 1, 2, and 3 of appeal accordingly fail. The appeal is found to be devoid of any merit and it is accordingly dismissed with costs to the Respondent.

Dated at Hoima this $3^{rd}$ day of February, 2025.

Byaruhanga Jesse Rugyema **IUDGE**