Tibezinda and Others v Kisembo and Others (Civil Appeal No. HCT-12-CR-CA-0005-2014) [2016] UGHC 7 (23 March 2016)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI

### CIVIL APPEAL NO. HCT-12-CR-CA-0005-2014

(ARSING FROM LAND CLAIM NO. 0009/2006 BEFORE THE CHIEF MAGISTRATE'S COURT MASINDI)

- 1. TIBEZINDA MOSES - 2. ATAGWIREHO IBRAHIM APPELLANTS - 3. BYENKYAALEX

4. JESCA KYONGO

### VERSUS

1. KISEMBO EMMANUEL **- I o** 2. MUGENZI EDWARD RESPONDENTS 3. WAMANI GODFREY

# BEFORE HON. JUSTICE BYABAKAMA MUGENYI - RESIDENT JUDGE

# JUDGMENT **'is**

The respondents sued the appellants in the Chief Magistrate's Court Masindi for recover/ of customary land measuring approximately 90 acres situated at Kitamar.ya village, Kikwanana Parish, Nyangahya Sub-county, Masindi District. The respondents contended they inherited the suitland

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The appellants from their late father/grandfather Erasto Kibwara. trespassed onto the land after the death of Kibwara.

The appellants denied the respondents' claim by contending their interest is derived from their parents/grandparents and they have lived on the suitland without any objection by the respondents. Court decreed that the respondents were the rightful owners of the suitland and the appellants were trespassers.

The appeal is premised on six grounds, to wit,

- 1. The learned trial Magistrate erred in law and fact when he misdirected himself on the fact that the appellants' interests on the r- |q - suitland was protected by the doctrine (sic). - 2. The learned trial Magistrate erred in law and fact when he relied on a certificate of ownership that is tainted with illegalities. - **'Sr** 3. The learned trial Magistrate erred in law and fact when he believed the inconsistencies, contradictions and hearsay evidence of the respondents. - 4. The learned trial Magistrate misdirected himself when he overlooked the appellant', evidence at locus in quo. - 5. The trial Magistrate misdirected himself and erred in law and fact when he faih ' to properly evaluate the evidence on record and - thereby arrived at a wrong conclusion that part of the disputed land in Civil Suit No. MSD-03-CV-002/2013 belonged to the respondents. - 6. The trial MaCstrate misdirected himself and erred in law and fact when he awm i ed costs to the respondents.

The appellants we: 3 represented by Mr. Kasumba Patrick while Mr. Kasangaki Simon appeared for the respondents. Both counsel filed written submissions.

The 1st ground of appeal is rather vague and ambiguous. I believe, it is for that reason even counsel for the appellants abandoned it in his written submissions throughout without necessarily saying so and started off with ground No. 2. The said ground No. 1 is accordingly deemed abandoned.

### Ground No.2

The complaint here *'3* that the trial Chief Magistrate placed reliance on the certificate of owner: lip (PE3) that was tainted with illegalities. The said —1Q 'document was saic to have been issued in 1939 by Bunyoro Kitara Kingdom, concerning allocation of land located at Kabengere, Kyema Subparish, Buruli Cour ,y, to Erasto Kibwara the father/grandfather to the respondents.

Counsel for the appellants questioned the credibility of the said document jeon two grounds. Firstly, the location of the land in the certificate was Kabengere Village, Kyema Sub-parish, while the suitland is at Kitamanya Village, Kikwanana Parish. Secondly, and most importantly, the certificate does not indicate the-, acreage, yet the respondents' claim was that the land allocated under the said certificate was 90 acres and the trial Magistrate^) accepted that claim.

In reply, counsel for the respondents submitted that there was enough evidence to show th -i land as per the certificate of ownership (PE3) is one and the same as the suitland. Secondly, the failure to indicate the acreage

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in the certificate wa , as found by the trial Magistrate, a fashion defect in certificates issued b'\_ the Bunyoro Kitara Kingdom at the time.

ent on to say: In the judgment, the trial Magistrate found that the respondents derived their interest in the : uitland from Erasto Kibwara who was issued the said certificate. He then \

> *"P. Exh has its own challenges. It did not indicate the size or acreage of the land obtained by Kibwara Erasto However, the certificate's failure to indicate the acreage of the lano given to Kibwara appears to be a fashion defect of certifies as given during those periods. It would appear* j *that thi. authorities then found that by indicating the boundai :es was sufficient and probably felt there was no need to carry out surveys of the land. In my view, the above* >. *afault does not extinguish the value of the docu/ne ,t to the detriment of the plaintiffs who are its benefici ries"*

Further, in response to the argument of counsel for the defendant that since the land had never been surveyed, the plaintiffs' claim that the acreage was about JO acres was therefore a mere imagination, the trial Chief Magistrate sta.ed that:-

> *"The abc ve argument could be true but does not reflect the reality c.n the ground. It is true, no survey exercise has ever bet i done by either party. This however does not bar any of ti e parties to estimate his holding or what he claims to be th size of his land."*

I am afraid; the fine ,g by the trial Chief Magistrate that failure to indicate the acreage of Ian in the certificate was a "fashion defect" regarding certificates issued I y the Kingdom at the time was not backed up by evidence and amo :nted to fanciful theories on the part of the trial Magistrate. Courts ; re required to make decisions basing on the evidence —<=5 beforfe them and no: >n matters of conjecture.

To my analysis, in so far as the respondents' claim of 90 acres was premised on the cer ficate of ownership which did not specify the acreage, their assertion did m t prove the claim that the allocated land was 90 acres. It is also noted, nor e of the respondents was present at the time (1941) —( q when the certificate /as issued and the land allocated to Erasto Kibwara.

As a consequence, it cannot be said the respondents' claim that the suitland measured S 3 acres premised on the certificate of ownership was proved on the balan- a of probabilities.

#### Grounds 3, 4 & 5

I will consider the th. ee grounds concurrently since they are concerned with the issue whether th ; trial Chief Magistrate properly evaluated the evidence in deciding as he die

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Counsel for the ar )ellants submitted that the respondents' case was riddled with contr; .fictions and inconsistencies as well as hearsay evidence. The trial Magistrate did not address himself to the said defects when evaluating th j evidence but chose to believe the respondents' j version without cons fering the cogency of the evidence.

According to Kyong Jesca (PW3) her late father (Eraso Kibwara) donated portions of the suitl id to the parents/relatives of the appellants. Indeed, the evidence of Kist ;ibo Emmanuel (PW1) is to the effect the 1st appellant (Tibezinda Moses) I as lived on the suitland since the 1990s, while the 2nd appellant (Atagwirev eho Ibrahim) and 3rd appellant (Byenkya Alex) have<-^ lived on the land sir. a childhood. PW1 went on to say the fathers of the 2nd re lawfully occupying the land and he had no problem and 3rd appellants v. with their stay.

The evidence of A/amani Godfrey (PW2) was to the effect that Atagwireweho Ibrah n (2nd appellant) is the son of Wandera Yovani. The< latter was given p ft of the land by Erasto Kibwara and he was in occupation of the p ,t given to him. PW2 had no problem with Wandera's stay. There is also e idence Wandera was buried on the suitland.

According to Jesc Kyongo (PW3) their main complaint is that the appellants have en 'oached on land outside the portions/areas given to their fathers/relativ >. The 2nd appellant trespassed onto an area measuring about 30 netres, while Tibezinda (1st appellant) trespassed onto 20 metres. PW3 alt i stated that Byenkya Alex (3rd appellant) trespassed onto 30 metres of th : suitland yet his father John Gahwera was donated 35 metres by late Eras'. Kibwara. In cross-examination PW3 stated:- ^2-0

> *i any part of our land. Atagwireweho's father was iece of land but I do not know the year he was "The dt nclants are entitled to occupy only those pieces which* v. *re given to their fathers. Those people were given those p rtions at different times. Tibezinda's father was not giv< given a*

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*given.* We *want him to be confined to the piece of land which was given to his father. My father did not enter into written donation agreement with the fathers of the defendants The defendants crossed the boundaries of the pieces donated to their fathers It is my father who gave the father of the late Yovan Wandera, the father of Ibrahim Atagwireweho. The father was given about 20 metres x 20 metres."*

PW3's evidence regarding the size of land that was given to the father of the 2nd appellant (Atagwireweho) was contradicted by Jebti Wandera (PW5), the wife to Yovani Wandera and also mother to 2nd appellant. The said witness (PW5) stated twice in cross-examination and once in reexamination that the land given to her husband measured 3 acres. She reiterated this at the locus in quo.

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Going by the respondents' version, the question is whether there is evidence to show the size and boundaries of the portions of land Erasto Kibwara gave to the respective relatives/parents of the appellants.

Firstly, there is the evidence of Jesca Kyongo (PW3) that her father did not make any written donation agreements with the said people. Secondly, none of the respondents was present when Erasto Kibwara was giving out^X(9 land. Thirdly, the specifications of the portions of land as stated by PW3, i.e. 20 x 20 metres or 30 x 30 metres, are primarily based on what she claims she was told by Erasto Kibwara. This clearly amounts to hearsay. The same applies to the evidence of Mugenzi Edward who stated:- *"Mzee Erasto Kibwara was telling us how these people came one by one and requesting for land these people could grow crops* We *are respecting what Mzee gave to these people and not to disturb them to what they were given."* <-

Granted, the question is; where is the evidence to show the size of land each of them were given?

PW4 even gravely contradicted himself when he said he was not around when Kibwara was giving land to Maimuna, but shortly after that he said Maimuna was given % an acre! What is the basis of his claim? I 0

The evidence of Gabriel Isingoma (PW7) was to the effect that he was around by the time Erasto Kibwara was allocated the land by the Kingdom. This was in 1939, he (PW7) having been bom in 1924. As regards Maimuna's presence on the land he stated:-

> *"Maimuna is an auntie to Tibezinda Moses. I do not know.*—| *when Maimuna came to the land and the year she came. Maimuna had been on the land since childhood."*

PW7 also testified he knew Byegarazo Ali the father of Tibezinda Moses (1st appellant). Byegarazo lived on Kibwara's land and that is where he was even buried. PW7 did not know the size of the land Byegarazo or Maimuna occupied respectively. PW7's evidence also reveals that there were other people staying on the land at the time Erasto Kibwara acquired the same, notably Sururu the father of Yovani Wandera who was husband to Jebti Wandera (PW5). The two (Sururu & Kibwara) became friends whereupon

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Kibwara 'allowed' Sururu to occupy part of the land measuring 20 x 20 metres.

At this juncture I should evaluate the evidence regarding the Will of Yovani Wandera that was tendered in evidence by George W. K Isingoma (PW6) *■t,* who witnessed the making of the Will (exhibit PE1). It reads:-

*"1. I do declare as follows:-*

*b)*

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*c) In 1982, the family of the late Erasto Kibwara allowed me only to stay of the approximately 3 acres* q *of the late Erasto Kibwara land. The family of late Erasto Kibwara did not give the land but simply allowed me to stay on it.*

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*d) My father, the late Sururu died sometime in 1941 but did not own land in Kitamanya Village, Masindi. The land claimed by my son Ibrahim Atagwirweho belongs to the late Erasto Kibwara."*

To my analysis, the said Will created more uncertainty in the respondents' case other than bolstering it. To begin with, George Isingoma (PW6) said he did not notify people about the presence of the Will following the death of his friend, the maker.

Secondly, the declaration that Sururu did not own land in Kitamanya is at variance with the evidence of Gabriel Isingoma PW7 who stated Sururu

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■er Sururu lived on the land before it was given to Erasto Kibwara. Ther< was given a small portion of the land by Kibwara.

Thirdly, whereas the Will states Yovani Wandera was allowed by late Kibwarals family to stay on the land in 1982, the evidence of Gabriel Isingoma (PW7) was to the effect:-

## *"Yovani Wandera started living on the land when his father died"*

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**Io** According to the Will, Sururu died in 1941, and, given the evidence of PW7, it means Yovani Wandera has lived on his father's land since 1941. One therefore wonders why the Will should state Wandera got permission to stay on the land in 1982.

Fourthly, the certificate of ownership (PE2) is dated 10-7-1941 implying that is the period Erasto Kibwara acquired the land, contrary to the assertion by Gabriel Isingoma (PW7) that it was in 1939. PW7 stated:-

## *"He came with a certificate showing how he got the land for •—* 5 *shilling, the certificate was showing the boundaries of the land."*

As pointed out above, this must have been in 1941 since that is the year appearing on the said certificate. Now, if Erasto Kibwara acquired the land in July 1941 and Sururu died in 1941, when did Sururu become an *O* I interpreter for Kibwara so as to be allocated 20 x 20 metres of the suitland by Kibwara?

Finally, still on the issue of the Will, the respondents' evidence was that Kibwara passed away in 1996 and by then he had allocated portions of the

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land to the people mentioned, including Yovani Wandera. It is therefore surprising the Will should state it was "the family of late Erasto Kibwara that allowed" Yovani Wandera to stay on the Kibwara land, other than Erasto Kibwara himself.

To 'my analysis, the entire Will is suspect and appeared tailored to lay singular emphasis on the land ownership by Erasto Kibwara.

The contention that Erasto Kibwara allocated small portions of the suitland to the appellants' parents/relatives was disputed by the appellants in their respective testimonies. However, even if the respondents' version were acceptable, the determinant question is how much land and what were the —10 . boundaries of the respective portions he allocated? The respondents' evidence was far from giving a credible answer to the said question. The sizes/specifications they gave were based on hearsay and not what they witnessed or knew in their own right respectively. Consequently, it cannot be said the claim that the appellants exceeded the boundaries of their —1^" respective portions was proved on a balance of probabilities.

In my evaluation, had the trial Magistrate properly evaluated the evidence, he would not have come to the finding that the plaintiffs/respondents were the rightful owners of the suitland and the defendants/appellants trespassed by extending beyond their initial holdings.

Ground No. 6 concerned the issue of costs. Since counsel for the appellants did not address it in his submissions, it is deemed to have been abandoned. .

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In the result, this appeal succeeds and the same is allowed. The judgment and decree of the Chief Magistrate are accordingly set aside. The appellants are awarded the costs of this appeal and in the court below.

$-5$ BYABAKAMA MUGENYI SIMON

**JUDGE**

23-3-2016

TIFIED すのリア $7.201G$

$12$ 161

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL APPEAL NO-HCT-12-CV-CA-0005 OF 2014

[Arising from Civil Suit N0-0009/2006, Masindi Land Claim]

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## **ORDER**

This appeal coming up for final disposal before His Lordship, HON: JUSTICE BYABAKAMA SIMON MUGENYI, Resident Judge-Masindi High Court, this 23rd day of March 2016, In the presence of Wis. Zemei Susan, holding brief for Counsel Kasumba Kugonza for the Appellants.

## IT IS HEREBY ORDERED THAT:-

- This appeal succeeds and is allowed. $(i)$ - The Judgment and decree of the Chief Magistrate are set $(ii)$ aside. - The Appellants are awarded costs of this appeal and costs $(iii)$ in the court below.

Given under my hand and the seal of this Court this.................................... $\frac{2016}{2}$

ASSISTANT REGISTRAR

Extracted & Filed By:-M/s Kasumba Kugonza & Co. Advocates, Plot 12, City Centre Complex, Luwum Street, 3rd floor Suit H-127, P. O Box 10454, Kampala