Tumushabe v Tumwine and 3 Others (HCT-05-CV-CA 51 of 2020) [2024] UGHC 704 (26 July 2024)

Full Case Text

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# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-0051-2020 (ARISING FROM IBD-00-CV-LD NO.14 OF 2016)

1. TUMUSHABE JOVANICE

------------------------------ APPELLANTS 2. KYOSIMIRE JOVANICE ------------

#### **VERSUS**

- 1. PATRICK TUMWINE 10 - 2. HARRIET NUWAHEREZA - 3. MELIA BEINENGYERO - ------------------------------- RESPONDENTS 4. EVA BARAKINYIHAMU ------------- - BEFORE: Hon. Justice Nshimye Allan Paul M. 15

#### **JUDGMENT**

#### REPRESENTATION

The Appellants were represented by Advocate Arinaitwe Ambrose from M/s Bwatota Bashonga & Co Advocates/ Solicitors, while the Respondents were 20 represented by Advocate Nuwagaba Collins from M/s Ngaruye Ruhindi, Spencer & Co. Advocates.

#### **BACKGROUND**

The Appellants commenced IBD-00-CV-LD No.14 of 2016 before the Chief 25 Magistrates Court of Ibanda at Ibanda against the Respondents jointly and severally seeking; a declaration that the Plaintiffs/Appellants have a right to share equally in the land that remained after the death of the late Miryo Nathan's wife - the late

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Nyakwegira Efrance (the suit land), an order for equal sharing of the suit land by both Plaintiffs and Defendants, a permanent injunction restraining the Defendants/Respondents from harassing and denying the Plaintiffs/Appellants a right of using the suit land, general damages and costs of the suit. The Defendants/Respondents denied the allegations and stated that every beneficiary to the estate of the late Miryo Nathan share and obtained respective distinct portions of land long ago, with the 2nd Plaintiff's being received by her husband.

## Agreed facts at the trial in the lower court

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The parties agreed at the scheduling that

- 1. The $1^{st}$ plaintiff ( $1^{st}$ appellant) and defendants (respondents herein) are biological children of Miryo Nathan and Effrance, who are both deceased. - 2. The 2nd plaintiffs' husband was Karambuzi a brother to the 1st plaintiff and the defendants. - 3. That Karambuzi and the Patrick Tumwine were given their share by the father before he died. - 4. That Effrance gave each of the daughter's land (ndude) before she died. - 5. That Effrance's house is still in place, and it is occupied by the daughter of the $1^{st}$ defendant.

The issues at trial in the lower court were;

- 1. Whether the plaint discloses a cause of action? - 2. Whether or not some land remained after distribution of land to the five daughters - 3. If so, who is entitled to it? - 4. What are the remedies.

In a judgment delivered on 18th June 2020; the learned trial Chief Magistrate HW Yeteise Charles dismissed the suit, and declared that the suit land belongs to Patrick Tumwine the 1st Defendant/Respondent, and issued a permanent injunction restraining the Plaintiffs (Appellants) from laying claim over the suit land. Being dissatisfied with that holding, the Appellants lodged this appeal before this Court.

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#### **GROUNDS**

The grounds of appeal as stated in the memorandum of appeal are;

- 1. The learned trial Chief Magistrate erred in law and fact when he declared the - suit land to belong to the 1st Respondent (Patrick Tumwine) only yet it's the $\mathsf{S}$ remainder of the estate of the late Miryo Nathan and Nyakwegira Efrance. - 2. The learned trial Chief Magistrate erred in law and fact when he held that the Appellants failed to prove their case on a balance of probabilities yet this burden was discharged through various pieces of evidence on Court record. - 3. The learned trial Chief Magistrate erred in law and fact when he failed to 10 subject the entire testimonies/evidence on Court record to proper evaluation thereby reaching a wrong decision. - 4. The learned trial Chief Magistrate erred in law and fact when he failed to act judiciously while condemning the Appellants to costs of the suit rather than - each party to bear his/her costs so as to promote reconciliation and harmony 15 between the parties since they have very close relationships.

The Appellants prayed for the following from this Court;

- 1. The appeal to be upheld. - 2. The lower Court's judgment and decree be quashed and set aside - 3. An order be issued that the suit land be shared by both Appellants and 20 Respondents - 4. Costs both on appeal and the lower Court - 5. In case the Appellants lose this Appeal, each party to bear their own costs

#### **SUBMISSIONS** 25

The Appellants filed their submissions on 18th August, 2022 and the Respondents filed theirs on 20th July, 2023. The Appellants filed submissions in rejoinder on 8th August, 2023.

#### Appellants' submissions

Counsel argued grounds 1,2 and 3 jointly and submitted that the trial Court did not 30 properly evaluate evidence for instance, the facts agreed at the scheduling

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conference were not considered, that witnesses PW3 and PW4 testified that the late Miryo Nathan distributed his land to his two wives Nyakwegira Efrance and Elvaida Kiteteirweho and their respective children, in his will - which was not disputed by the Respondents. Counsel faulted the trial Court for holding that the case entirely depended on wills which were not adduced in Court and submitted that late Miryo Nathan distributed land to his wives and their respective and thus the wives need not have made wills because land was jointly owned by them and their children.

- Regarding ground 4, counsel submitted that it's the practice of Courts to promote 10 reconciliation and by condemning the Appellants to costs, the trial Court was not promoting reconciliation. Counsel relied on the fact that the parties are blood relatives and the 2nd Appellant a daughter/sister in law, to pray that Court disregards costs under Article 126(2)(e) of the Constitution. Counsel prayed for the - Appeal to be allowed. 15

### **Respondents' Submissions**

Counsel for the Respondents started by raising a preliminary objection to the effect that the grounds of appeal as enlisted by the Appellants' counsel in the memorandum of appeal offend provisions of ORDER 43 RULE 1(2) OF THE CIVIL 20 PROCEDURE RULES SI 71-1 for being argumentative, vague and general in terms. Counsel relied on BANYA TONNY VS OPIO CHARLES HC CIVIL APPEAL NO.0036 OF 2018 to buttress his objection. Counsel further cited the Black's Law Dictionary to define "argumentative pleadings" and prayed for the grounds to be struck out for being argumentative, narrative and verbose. 25

Regarding merits of the appeal, counsel submitted on ground one that the suit land was bequeathed to the 1st Respondent by his mother (the late Nyakwegira Efrance) wherein he has lived for 15 years, and consequently, there was no land left undistributed as claimed by the Appellants. Counsel relied on the authority of **OYET** BOSCO AND ANOTHER VS ABASI LUGEMWA AND OTHERS HCCS NO.24 OF 2013 for the proposition that the late Nyakwegira Efrance gave the suit land to the $1^{\rm st}\,$ Respondent as a gift inter vivos. He prayed for this ground to fail.

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On the second ground, counsel submitted that, the burden of proof lay on the Appellants to prove their assertions and concurred with the trial Court that the Appellants' case entirely relied on wills which were never tendered in Court and prayed that this ground fails. For ground 3, counsel reiterated his earlier submissions on the first ground. On ground 4, counsel contended that costs follow the event under SECTION 27 OF THE CIVIL PROCEDURE ACT CAP 71. Counsel cited PRINCE MPUGA RUKIDI VS SOLOMON IGURU SCCA NO.18/1994 and H&G ADVOCATES INTERNATIONAL AIDS VACCINE INITIATIVES AND OTHERS TAXATION APPEAL NO.5 OF 2021 for the position that costs are to indemnify the successful 10

party in respect of expenses they incurred. In conclusion, counsel prayed for the appeal to be dismissed with costs to the Respondents.

#### Appellants' rejoinder

Regarding the preliminary objection, counsel submitted that the objection has no 15 merit and that in the interest of justice, even if a ground of appeal be argumentative or narrative and would ordinarily be struck out, Court can still decide the appeal on its merits (see BARCLAYS BANK OF UGANDA LTD VS GOLF VIEW INN (U) LTD CA CIVIL APPEAL NO.56 OF 2015). Counsel prayed for the objection to be overruled. On the merits of the appeal, counsel reiterated his earlier submission in support of 20 the appeal.

### DUTY OF APPELLANT COURT

The duty of a first appellate court was laid out in the case of FR. NARSENSIO BEGUMISA AND 3 ORS V. ERIC KIBEBAGA SCCA NO. 17 OF 2002 that: 25

> "The legal obligation of the 1st appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1st 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 case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses."

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The above principles will guide this court in the determination of the grounds of appeal that will be determined as here below stated.

#### DETERMINATION

It is trite law that the party that alleges has duty to prove the same as stipulated in $5$ section 101 - 103 of the Evidence Act and was also held in KARAMIRA V **KIGGUNDU. HIGH COURT CIVIL APPEAL 93 OF 2018.**

I will handle ground 1,2,3 together.

The appellants claim as articulated in the lower court is that there is part of their parents estate that was not distributed and as such they were entitled to a share of the undistributed portion. It was thus their duty to prove that part of the estate was not distributed.

It is trite that facts that have been admitted by the parties at the hearing need not be proved as is stated in section 57 of the Evidence Act. In this case, the parties agreed at the scheduling that;

- 1. The $1^{st}$ plaintiff ( $1^{st}$ appellant) and defendants (respondents herein) are biological children of Miryo Nathan and Effrance, who are both deceased. - 2. The $2^{nd}$ plaintiffs' husband was Karambuzi a brother to the $1^{st}$ plaintiff and the defendants. - 3. That Karambuzi and the Patrick Tumwine were given their share by the father before he died. - 4. That Effrance gave each of the daughter's land (ndude) before she died. - 5. That Effrance's house is still in place, and it is occupied by the daughter of the $1^{st}$ defendant. - I will now consider the status of the estate of Nathan Miryo and that of Effrance 30 Nyakwegira

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# The status of the estate of Nathan Miryo

The evidence on court record by The 1st appellant who testified as PW1, Jovanice Tumushabe is that:

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"The land was for our parent Nathan Miryo who had two families. Each family had its own land. He left a will ... the will was giving two wives to distribute to their children" (see page 5 of the record of proceedings)

PW3 Paskali Kwamburatata testified during cross examination that; 10 "I am one of the executors of Miryo's will, I signed it He gave all his estate to his wives and children and nothing remained" (see page 9 of the record of proceedings)

Dw1 Harriet Nuwahereza testified that 15 "The land belonged to our late father called Miryo Nathan.... Before he died he had given land to Samuel karambuzi and Patrick Tumwine" (see page 14 of the record of proceedings)

My analysis of the above evidence of PW1, PW3 and DW1 on court record shows 20 that all the witnesses are consistent that their father left a will and he divided all the land among his two wives. In fact, PW3 Paskali Kwamburatata one of the the executors of Miryo's will, confirmed that he signed the will, and that the estate was distributed leaving nothing. I therefore find that based on the evidence on record, the estate of Nathan Miryo was distributed by will as confirmed by the executor 25 and nothing remained.

# The status of the estate of Effrance Nyakwegira

The evidence on court record by the 1st appellant who testified as PW1, Jovanice 30 Tumushabe stated during cross examination that;

"Our mother also left a will. Our mothers will was giving the suit land to the girls. (see page 5 of the record of proceedings)

Dw1 Harriet Nuwahereza testified that;

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"The share of our mother is no longer there . before she died she gave us this land to the four girls, Harriet Nuwahereza 1/4 acre, Jovais Tumushabe ( appellant) ¼ acre, Melia Benengyero ¼ acre and Eva ¼ acre. The entire land was 2 acres... the $2^{nd}$ plaintiff brought 3 I/2 ndunde. the land that has the house and graves is about 1/4 ndunde (see page 14 of the record of proceedings)

Dw2 Patrick Tumwine also testified that;

"There is no land that was not distributed. there is a house left to keep the girls who fail in marriage". (see page 18 of the record of proceedings)

My analysis of the evidence is that PW1 (1st appellant), Dw1 and DW2 all state that their mother's estate was distributed among the girls. Dw1 Harriet even elaborates how much the girls got, who include the 1st appellant. This means that it is not in doubt that girls were the beneficiaries of the Estate of Efrance Nyakwegira.

The appellants allege that some land remained after the distribution, while the respondent s state that no land remained save for the family home with the burial grounds.

The appellants therefore had an obligation to prove that there was land that remained undistributed. In my analysis I note the following.

1. The parties agreed at the scheduling among the agreed facts that Karambuzi and the Patrick Tumwine were given their share by the father before he died. This means that it is not possible that the appellants are claiming land that was given to Karambuzi and the Patrick Tumwine by their father while he was still alive, this is not part of the estate of Miryo Nathan or Efrance Nyakwegira.

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- 2. PW3 Paskali Kwamburatata the executor of Miryo's will, told court that nothing of Nathan Miryos estate remained" (see page 9 of the record of proceedings). Considering that he was the executor, it can be taken that noting of Nathan's estate remained undistributed, since no contrary evidence was brought by the appellants while in the lower court. - 3. Regarding Effrance's estate, it was the evidence of PW1. The appellant herein that her mother left a will. I have perused the court record and find no will of Effrance was exhibited and no executor of the estate was brought to explain what remained undistributed, if any. I find that the appellant's did not adduce evidence of the undisturbed land that they claim to have been part of the estate.

I therefore find that the appellants did not discharge their duty to prove their allegations, I cannot fault the Trial Magistrate HW Yeteise Charles's judgement. I therefore uphold his judgement.

#### I will now deal with ground 4 regarding costs.

In principle costs follow the event as is stated in section 27 of the Civil Procedure Act. I therefore find no reason to fault the Trial Magistrate in the exercise of his 20 discretion.

In conclusion, I order that the appeal is dismissed with costs.

Wieters

NSHIMYE ALLAN PAUL M. **JUDGE** 26-07-2024

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