Tibaijuka and 8 Others v Bagwa Byenkya and Another (Civil Appeal 3 of 2022) [2024] UGHC 439 (29 February 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT HOIMA

## CIVIL APPEAL NO. 03 OF 2022 (Formerly Masindi Civil Appeal no. 039 of 2015)

(Arising from Civil Suit No. 035 of 2005)

- 1. JOHN TIBAIJUKA - 2. WILLIAM KAMWIYA - 3. BONIFANCE BARONGO - 4. JOAB BAGAMBA - 5. KATO GEOFFREY - 6. JACKSON IRUMBA - 7. SIMON KAHUMA - 8. WILSON ISINGOMA - 9. WILLIAM KIIZA ::::::::::::::::: **::::::::::::::::APPELLANTS**

### **VERSUS**

### 1. EZEKIEL BAGWA BYENKYA

ELLY BAGWA BYENKYA ::::::::::: **EXAMPLE 11: ::::::::::RESPONDENTS**

[An appeal from the judgment and the orders of the former Magistrate Grade 1 Hoima, at Hoima, H/W Ndangwa Richard in C. S No.35 of 2005 dated $8^{th}$ May 2015]

## Before: Hon. Mr. Justice Byaruhanga Jesse Rugyema:

#### JUDGMENT

## **Background:**

$[1]$ The Respondents who were the Plaintiffs in the lower court sued the Appellants for a declaration that the Respondents are the rightful owners of land comprised in LRV 1413, Folio 19, Bugahya Block 9, Plot 32, at Kyanyangenda-Kyabasengya, Kitoba , Hoima District measuring approximately 40.4 hectares and un registered land there at all together totaling to about 60 hectares, a declaration that the Appellants unlawfully trespassed on their land, an eviction order against the Appellants, a permanent injunction issues restraining the Appellants from trespassing on the suit land, general damages and costs of the suit.

- It was the Respondents/plaintiffs' case that between 1998 and 2004, $[2]$ the Appellants illegally entered the suit land and carried out cultivation, cut trees into timber and rented it out to B. A. T(U) and individuals for making tobacco nursery beds and cultivation of tobacco. The 1st to 7th Appellants denied the Respondents' allegations and contended that they are customary tenants on the suit land and therefore, bonafide occupants as they had been on the said land since the 1960s and 70s respectively. - The trial Magistrate found that the Appellants/defendants failed to $[3]$ establish that they were occupying the suit land under customary tenure. That their claim that the suit land was given to them by their parents was not backed by evidence. Their respective fathers who were still alive never testified in court to back up the Appellants' claims. The lower court therefore, allowed the suit and entered judgment for the Respondents. - $[4]$ The Appellants being dissatisfied with the judgment of the trial Magistrate filed this appeal on the following grounds: - 1. That the trial magistrate erred in law and fact when he failed to evaluate the evidence on record as a whole. - 2. That the learned trial magistrate erred in law and fact when he declared the appellants trespassers. - 3. The learned magistrate erred in law and fact when he failed to carry out the proper procedure at the locus.

## **Counsel legal representation**

- $[5]$ The Appellants were represented by Mr. Aaron Baryabanza of M/s Baryabanza & Co. Advocates, Hoima while the Respondents were represented by Mr. Christopher Mwebaza of M/s Mwebaza & Co. **Advocates, Hoima.** Both counsel filed their respective submissions for consideration in the determination of this appeal. - $[6]$ Both counsel addressed court on a fresh ground of appeal not framed in the memorandum of appeal. This ground stated thus;

## 4. The learned trial magistrate erred in law and fact when he handled a matter in respect of land whose value was out of his jurisdiction.

Since this fresh ground of appeal touches on an aspect of jurisdiction of the lower court in handling the suit, it is pertinent to canvass it on appeal. I therefore consider that this appeal is premised on four grounds of appeal as spelt herein above.

# **Preliminary objections**

$[7]$ Counsel for the Respondents in his submissions raised two points of law. I will address them first since it is settled law that preliminary objections are disposed of first before consideration of the substance of the appeal.

#### The appeal was filed before extracting a decree. i.

- It was the Respondents' counsel's submission that under S. $220(1)$ (a) [8] of the Magistrates Court Act, it is provided that subject to any written law and except as provided in this section, an appeal shall lie from the decrees or any part of the decrees or from the orders of a magistrate's court presided over by a Chief Magistrate or Magistrate Grade 1 in exercise of its original civil jurisdiction, to the High Court. He relied on the case of Migadde Richard & 2 Ors VS Nakibuule Sandra & 2 Ors HCA No. 053 of 2019. In counsel's view, no decree was extracted before the Appellants filed the instant appeal as required by law and therefore it is invalid. Because there was no decree on record, I was invited to find the appellants' appeal as incompetent and incurably defective and resultantly strike it out. - $[9]$ The law obtaining now is that it is not fatal to omit to extract a decree prior to institution of an appeal. In Byekwaso & Anor Vs Ndagire HCCA No.078 of 2012, Justice Persy Tuhaise found and held thus "It has for long been a requirement of the law, as held in W. T. M Kisule Vs Nampewo [1984] HCB 55, Yoana Yakuza Vs Victoria Nakalembe [1998-99] HCB 138 and Robert Biison Vs May Tibamwenda [1991] HCB 92, that failure to extract a formal decree before filing the appeal was a defect not going to the jurisdiction of the court and renders the appeal incompetent. The foregoing decisions were based on Section $220(1)$ (a) of the Magistrate's Act. All of them were made before the current constitution which was promulgated in 1995. This legal position appears to have changed in light of Article 126(2) (e) of the Constitution which enjoins courts to administer substantive justice without undue regard to technicalities. It has since been held by the court of appeal in Banco Arabe Espanol Vs Bank of Uganda, Civil Appeal No.42 of 1998 that the extraction of a decree was a mere technicality which the old municipal law put in the way of intending Appellants and which at times prevented them

- from having their cases heard on the merits and that such a law cannot co-exist in the context of Article 126 $(2)$ (e) of the Constitution. The same position was maintained by the same Court of Appeal in **Standard Chartered Bank (U)** Ltd Vs Grand Hotel (U) Ltd. Civil Appeal No. 13/1999." - $[10]$ The above settles the 1st preliminary objection. In the premises, the Migadde & Ors Vs Nakibuule (Supra) and other authorities like Mbambu Stella Vs Monday Nicholas, F/portal, HCCA No.10 of 2016 are found to had been decided per incuriam in as far as the requirement of extracting a decree before instituting the appeal is concerned. I therefore overrule this objection.

#### The Appeal was filed out of time ii.

- Under S. $79(1)(a)$ and (b) of the CPA, it is enacted that an appeal shall $[\mathcal{W}]$ be filed within 30 days of the date of the decree or order of the court; or within 7 days of the date of the order of a registrar. It is also expounded under S. 79(2) CPA, that while in computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded. - $[12]$ Procedurally, under $0.43$ (1) of the CPR, an appeal is to be preferred by filing a memorandum of appeal. Counsel for the Respondents Mr. Baryabanza Aaron submitted that from the record, judgment of the lower court from which this appeal arose was delivered on the $8th$ day of May 2015. Upon delivery of the judgment, the appellants instead of filing a memorandum of appeal, filed a Notice of appeal in the High Court of Uganda at Masindi on the 5th day of June 2015 and did not file a memorandum of appeal till 30th day of August 2018, after more than three (3) years from the date when the judgment was delivered. I have perused the record and established that the record of proceedings and judgment were certified by the lower court on 29/7/2015 and $12/6/2015$ respectively. The Appellants did not write a letter asking for a certified copy of the proceedings in time. - $[13]$ This court accepts the submission of Mr. Baryabanza Aaron for the Respondents that upon the delivery of the judgment of the lower court on the 8th day of May 2015, the Appellants never took any step by writing to the lower court applying for a certified copy of judgment and record of proceedings as there is no evidence on record by way of a letter by counsel for the Appellants or the Appellants themselves requesting for a certified copy of judgment and proceedings from the lower Court, before the expiry of thirty (30) days from the date of

- judgment. Indeed as observed by counsel for the Respondents, what is on record is a letter by the Assistant Registrar Masindi High Court written on the 15th day of July 2015 and received by the Hoima Chief Magistrates Court on 22nd day of July 2015 requesting the lower court to prepare and forward the record of proceedings and the file to the High Court for appeal purposes. This letter was written after the expiration of the 30 days with in which the Appellants should have filed their appeal to this court. - $[14]$ The letter on record written by counsel Mwebaza for the Appellant dated 28th June,2018 claiming that the file had got misplaced since 2005 is pretentious. There is no evidence that the file ever got misplaced. It was merely retrieved from the archives where ordinarily all concluded files are kept. The Appellants had never applied for a certified copy of the proceedings and judgment in time for their intended appeal. The copy of judgment and record indicated as certified on 17th August 2018 was certified so at the instance of the Appellants but initially the judgment had been certified long ago by 12th June 2015. In the absence of any evidence of a letter written in time seeking certified copies of the proceedings and judgment for appeal purposes, this court is inclined to agree with the Respondents that the appeal was filed out of time and they cannot be rescued by S.79(2) CPA. - $[15]$ To buttress this point further, immediately after delivery of judgment by the lower court, counsel for the Respondents applied to the lower court for a certified copy of judgment and proceedings which were certified ready for collection by 12th day of June 2015 and a certified copy of proceedings certified on the 29th day of July 2015 respectively. I therefore uphold the objection by counsel for the Respondents that this appeal was filed out of time and this finding renders this appeal liable to be struck out.

# Merits of the appeal.

For purposes of completeness, I proceed to canvass the merits of this $[16]$ appeal.

# Pecuniary jurisdiction of the lower court

$[17]$ Counsel for the Appellant argued that the trial magistrate did not have jurisdiction to hear this suit reasoning that the suit land is 60 hectares (approximately over **120 acres**) and that therefore, it is far above shs 20,000,000= which is the pecuniary jurisdiction of the magistrate grade 1. Counsel for the Respondents did not agree with the submission of the Appellants that the learned trial magistrate lacked jurisdiction to

hear the suit. He submitted that the suit was filed by the Respondents in Hoima District Land Tribunal in 2005.

Upon the land tribunals being disbanded, the case was transferred to $[18]$ the Chief Magistrates' Court of Masindi at Hoima. I observe that at the time the suit was filed, the pecuniary jurisdiction of Magistrates courts had not been enhanced. Further, I find the submission of counsel for the Respondents persuasive and logical that in the year 2005, when the suit was filed in the land tribunal and 2007 when the suit was transferred to the Chief Magistrates' Court, the value of land in Bunyoro region must have been low, more particularly so in rural areas where the suit land is situate. There is no evidence on record concerning the value of the subject matter at the time the suit was filed that was adduced by the parties that the value of land was between $20,000/=$ and 50,000/= only per acre. I am therefore unable to find and hold that the pecuniary value of the suit land was beyond the trial court at the time the suit was filed. I find this issue as a mere afterthought. It ought to have been brought up at the commencement of the trial or during the trial for court to determine it i.e, the pecuniary jurisdiction at the time. This ground of appeal fails.

# **Grounds 1 & 2: Evaluation of Evidence**

- [19] The Appellants also contended that the trial court did not properly evaluate the evidence on record and arrived at an incorrect decision to allow the suit and decree the land to the Respondents. The Respondents submitted that the learned trial magistrate properly considered and adequately evaluated the evidence on record and arrived at the correct findings in law and fact. - $\mathfrak{L}^{[0,1]}$ I find that the Respondents led evidence that they owned both registered land and unregistered customary land upon which the Appellants trespassed. The Respondents did not depart from their pleadings in their claim over the suit land as counsel for the Appellants implores court to believe. The respondents sued in respect of both the registered and the unregistered land. In paragraph 3 of the statement of claim, the Respondents stated thus;

"the claimants' claim against the respondents which they are submitting to this honourable tribunal is for: (a) a declaration that the claimants are the rightful owners of the leasehold land on plot No. 32 Block 9 at Kyabasengya, Kitoba and land at Kyanyamaganda/Kyabasengya, Kitoba which they claim they applied for and were allowed to lease." In the summary of the case attached on the Respondents' Statement of claim, it is stated that and I quote.

"the claimants shall lead evidence to prove that they are the rightful owners of the leasehold land on plot No. 32 Block 9 at Kyabasengya, Kitoba and land at Kyanyamaganda / Kyabasengya Kitoba which are in issue..."

- [21] The implication of the above is that the respondents were claiming two pieces of land i.e. the registered land at Kyabasengya which is described by its plot and block number and the other land which is at Kyanyamaganda / Kyabasengya which from the evidence on record is unregistered. On record as pointed out by counsel for the Respondents PW1 told court in examination in chief that the appellants trespassed on both the registered and unregistered land. He never departed from his pleadings and the trial magistrate never erred in law and fact when he held that the appellants had trespassed on the unregistered land of the respondents. - [22] Counsel for the Appellants further stated in his submission that it was not possible to declare the Appellants trespassers on the registered land of the Respondents without first opening boundaries of the said land. The Respondents did not agree with this contention. It was not disputed whether the Respondents held a certificate of title over part of the suit land. In their evidence, the Respondents and their witnesses were able to describe the suit land by its boundaries and placed the Appellants' activities leading the Respondents' suit for trespass against them within the boundaries described by the Respondents as constituting the suit land. In any case, the Appellants themselves did not deny being in occupation of the suit land but claimed to be owners thereof. Therefore, the trial magistrate having been satisfied with the Respondents' evidence that the suit land belongs to the respondents, he was right to declare the Appellants trespassers on the suit land. As already found, the opening of boundary would be futile since the Respondents claimed both registered and un-registered land. It is therefore the observation of this court that since the other five Appellants never denied being on the registered land of the Respondents, the trial court was on the premise of this evidence on record justified in holding that the Appellants had trespassed on the suit land. - [23] The Appellants submitted that the learned trial magistrate failed to consider important evidence that was supposed to be discerned from the survey report to ascertain whether the allegation of trespass had

been committed or not and more so evidence from the previous file $C/S$ MSCB-01-CV-C3-23/2003.

- $[24]$ However, I find that the survey report and proceedings in the lower court vide MSCB-01-CV-C3-23/2003 were not led in evidence or tendered as exhibits. In the absence of these records as exhibits in evidence, the Appellants are not justified to blame the lower court for this omission. That file (C. S No.23 of 2003) was nevertheless later traced, as both counsel conceded, it was not a concluded file and therefore, it was not of any evidential value in the suit at hand. - As regards the survey report, the evidential burden had shifted to the $\begin{bmatrix}25\end{bmatrix}$ Appellants who claimed or asserted that it existed to produce it in evidence through the surveyor. They failed to do so. The failure by the trial Magistrate to order for the reopening of the boundaries of the suit - land therefore did not occasion any miscarriage of justice since there were other evidence court relied on or would rely on to decide the suit. - The appellants further faulted the trial magistrate for considering the $[26]$ evidence of PW1 on the ground that at the time the father of the $1^{st}$ respondent acquired the suit land in 1968, PW1 was still young about nine (9) years and unable to know that the suit land was acquired in 1968. In addressing this issue, counsel for the Respondents submitted that a child of nine (9) years is old enough to remember the events which happened in his/her presence; so, there was no reason as to why the trial magistrate could refuse the evidence of PW1 to the effect that their customary unregistered land was acquired in 1968. PW1 was not challenged in cross examination on this aspect. Besides, the Appellants did not lead any other independent evidence to rebut the evidence of PW1 on his father's acquisition of the un-registered land in 1968. The trial magistrate correctly observed that the Appellants ought to have adduced evidence of their parents to back up their claims which they did not do. In the absence of any other evidence to support the assertions of the Appellants that they derived their interest in the suit land from their parents, the trial Magistrate was therefore in the circumstances justified to decree the suit land to the Respondents who held a certificate of title which had the $1^{st}$ Respondent as proprietor. - This court is also in agreement with the submission of the Respondents' $[27]$ counsel that while it is true the trial magistrate in his judgment wrongly identified PW2 as DW1, there was no miscarriage of justice caused by his wrong identification of DW1 as his son. This was a slip of the pen during the recording of the proceedings. PW2 was referring to his son, Elly Bagwa Benkya since the trial magistrate was spot on, particularly on the evidence adduced by PW2. This is so because the trial magistrate

properly applied the evidence that had been adduced by PW2 in court to the facts of the case before he arrived at the decision he made.

- [28] The Appellants also submitted that the trial magistrate erred in law and fact not to find them bonafide occupants on the suit land. The Appellants claimed that they were born on the suit land while others told court that they were given the suit land by their fathers. The trial magistrate found that the Appellants had failed to prove their claim of bonafide occupancy on the ground that they never called their fathers to testify in court and support their case. Their claim was also successfully rebutted by the evidence of the Respondents showing that they were not in possession of the suit land and only forcefully entered thereon as trespassers. Having failed to prove that their parents owned the suit land or produced the Appellants thereon, their claim of bonafide occupancy is untenable. - 29] It is also on record that some of the appellants claimed to had purchased their respective pieces of land and that agreements were made and witnessed by the local leaders of the area. However, no sale agreements were tendered in court to prove the alleged purchases and no explanation was given as to why they never produced their agreements in court as evidence of purchase of the suit land. It is also clear that though the appellants claim to had purchased their respective parts of the suit land from elsewhere, none of them produced as witnesses, the persons they alleged to had purchased their respective parts of the suit land from i.e, their respective vendors. No explanation was given to court as to why they never called these vital witnesses. These claimed purchases therefore remained allegations and the trial court rightly found them un-proved. - 1301 As regards trespass, the Appellants claim that the learned trial magistrate erred in law and fact when he declared the appellants trespassers. Trespass is wrongful entry upon the land in the possession of another. The Respondents did not permit the Appellants to settle on the suit land. In Justine E. M. N. Lutaya Vs Sterling Engineering Co. Ltd SCCA No. 11 of 2012, It was held that a person in possession of the land has a right to sue for trespass. Possession of land can be actual or constructive possession. For example a registered owner of land has constructive possession of the land as against a person who is in illegal possession of the land. Therefore, in the instant case, the Respondents who were in possession of a certificate of title over the suit land at the time of the appellants' entry on to the suit land, had possession of the suit land and had locus to institute a suit for trespass against the appellants in respect of the said land, see Kirigege Livestock Farm Vs Reila Ranching Cooperative Society HCCA No.6 of 1992.

[31] In the instant case, the Respondents pleaded that they were in possession of the suit land at the time of the Appellants trespass and this can be found at paragraph 4(b) of the Respondents' statement of claim where it is expressly stated by the respondents thus:-

> "The respondents (appellants) have cultivated the land, cut trees into timber, ate cassava which was planted there by the claimant, rented the land to B. A. T. and individuals to make nursery beds and cultivate tobacco without any colour of right."

- $[32]$ The above pleadings and the overwhelming evidence on record is indicative that at the time the appellants trespassed on the suit land, the Respondents were in possession of the suit land on which they had cultivated cassava gardens which the Appellants took over without permission. The slightest amount of possession by the respondents by virtue of having cassava gardens on part of the suit land at the time of the appellants' entry thereon was sufficient enough to give the respondent's capacity to sue for trespass over the suit land, Wuta- Ofei Vs Danquah (supra). This ground of appeal would accordingly fail. - [33] The $1^{st}$ Appellant told court that he was born on the suit land. The Respondents on their part told court that the $1^{st}$ Appellant was a neighbour to the suit land and that he crossed the boundaries into the suit land and that is why he was sued. The $1^{st}$ Appellant did not rebut this evidence led by the Respondents which the trial court rightly relied upon to decree the suit land to the Respondents. This court finds that the trial magistrate therefore, properly evaluated the evidence on record and reached a proper decision that the Respondents are the rightful owners of the land and the Appellants were the trespassers thereon. - [34] In the premises, I find grounds 1 & 2 devoid of any merit and they accordingly fail.

## Ground 3: The learned trial Magistrate erred in law and fact when he failed to carry out the proper procedure at locus visit.

The Appellants faulted the trial magistrate for the procedure he $[35]$ adopted at the locus in quo. The trial magistrate visited the locus in quo but there is no record of the findings of the court while at the locus. It is however the finding of this court that the evidence on record was sufficient for court to decide the matter on merits without having regard as to what transpired at the locus in quo. In Hon. Owole Nixon

Vs Owole Thomas & 2 others HCCA No. 0040 of 2014 Hon. Justice Stephen Mubiru, held that,

> "When there is such a glaring procedural defect of a serious nature by the trial court, the High Court is empowered to direct a retrial if it forms the opinion that the defect resulted in failure of justice. In the instant case, I am of the view that the defect did not occasion a miscarriage of justice since the decision of the case hinged on the veracity of the appellant's evidence regarding the receipt of the land as a gift inter vivos rather than on the basis of any comments and observation that the trial court made as a result of the impugned visit to the locus in quo."

[36] The above was re-echoed by Justice Remmy Kasule in the case of Okullu Ferdinando Vs Abok David HCCA No. 008 OF 2002 that;

> "This court accepts the criticism of counsel for the appellant that the locus was not properly conducted by the trial court. However, even if the evidence of the locus in quo were to be discarded, there was overwhelming evidence, as already stated, that established that on a balance of probabilities, the respondent established his case that he was the lawful owner of the land and the appellant failed to establish that the respondent was a trespasser. .......... This court therefore holds that, the failure to conduct the locus in quo by the trial court did not result in a miscarriage of justice. The evidence on record from the testimony of witnesses, independent of and apart from that of the locus in quo, justified the finding reached by the trial court that the respondent was not a trespasser on the appellant's land."

[37] It is therefore the finding of this court that from the evidence on record, though there were lapses in the locus visit and the recording of what transpired there at, with or without visiting the locus in quo, the court would still be in position to reach a proper judgment on the merits. There is therefore no need of ordering a retrial and besides, taking into consideration the time the case has spent in court and changes which have certainly transpired, a retrial sought by the Appellants would not be an option, see Rwanseri Abumereki Vs Mbabazi Peter, MSD HCCA No.9 of 2013. In this case, I find that other than locus visit evidence there are other sufficient evidence on record, as already shown, that justified the finding reached by the trial court that the Appellants were trespassers on the Respondents' land. This ground of appeal also fails.

[38] In conclusion, I find no merit in the entire appeal and therefore, it is accordingly dismissed with costs.

Dated at Hoima this 29th day of February, 2024.

Byaruhanga Jesse Rugyema JUDGE.