Tumwesige and Another v Bahemuka Temuteo (Civil Appeal 43 of 2024) [2024] UGHC 1163 (25 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CIVIL APPEAL NO. 043 OF 2024

(Formerly MSD Civil Appeal No. 44 of 2020)

(Arising from Kagadi Magistrate's Court, Civil Suit No. 12 of 2016)

#### **1. MICHEAL TUMWESIGE** 2. KAAHWA MERINDA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## TEMUTEO BAHEMUKA ::::::::::::::::::::::::::::::::::::

[Appeal from the judgment and orders of Kagadi, Magistrate Grade 1 in C. S No.12 of 2016 delivered on $1^{st}/10/2020$ ]

## Before: Hon. Justice Byaruhanga Jesse Rugyema

### **IUDGMENT**

#### Background

- The Respondent/plaintiff sued the Appellants/defendants for malicious $[1]$ damage to property and trespass to land situate at Kyabayaga L. C1 Bwikara sub county, Kibaale district and sought shs. $1,210,000/=$ as special damages for malicious damage of the barbed wire fence, permanent injunction, vacant possession and eviction of the Appellants from the suit land, general damages and costs of the suit. - It was the Respondent's case that upon a request by the Respondent's uncle a $|2|$ one Tibezinda Joseph, father to the Appellants the Respondent gave or offered his uncle a kibanja of about 4 acres for his cultivation on his approx. 130 acres of land he bought from a one Kasamba Henry in 1983. - That upon the demise of Tibezinda Joseph, his children, the Appellants $[3]$ inherited the suit kibanja though before their father's demise, they had sold off most of it to various people. That on or around 2015, the Appellants

trespassed upon the Respondent's land which he had preserved for cattle rearing and destroyed his barbed wire thus causing him inconvenience, pain and loss in monetary terms for which he held the Appellants liable in special and general damages.

- In their defence, the Appellants denied the Respondent's claims and $[4]$ contended that they inherited the suit land from their late father Tibezinda Yusufu who acquired part of the land through custom of occupying land declared free by the chiefs, 10 acres from a one Atanansi Badugala by way of purchase in 1958 and later, 120 acres of land from Henry Kasamba, son of Atanansi Badugala. That they are therefore the rightful owners of the suit land which they occupied and utilized unchallenged for the last 45 years. - During the hearing of the suit, the 1<sup>st</sup> defendant, Byaruhanga Pascal and the $[5]$ 4<sup>th</sup> defendant, Joyce Aliganyira were dropped and or withdrew from the suit for it was contended by the Respondent that they left the suit land and therefore he ceased to have a cause of action against them. - The trial Magistrate upon evaluation of the evidence adduced by the parties $[6]$ before him and correctly directing himself on the burden of proof in civil suits that he or she who asserts a claim bear the burden to prove it, found that the Respondent purchased land as per the purchase agreement (P. Exh.1) out of which the disputed portion is about 4 acres. That it had clear boundaries of a barbed wire and poles/trees which had been put as a paddock. That for the Appellants, they adduced no evidence/proof that the disputed portion of land belonged to their late father Tibezinda Yusufu. The Respondent was declared the owner of the suit land and the Appellants as trespassers liable for malicious damage of his barbed wire fence. - The Appellants were dissatisfied with the judgment and orders of the learned $[7]$ trial Magistrate and lodged the present appeal on one ground of appeal; - 1. The learned trial Magistrate erred in law and fact when he did not properly evaluate the evidence on record when he held that the suit land belongs to the Respondent/plaintiff and that the Appellants/defendants are trespassers thereon.

# Counsel legal representation

[8] The Appellants were represented by Mr. James Byamukama of M/s Byamukama, Kiboneke & Co. Advocates, Kampala while the Respondent was represented by Mr. Jurugo Isaac of M/s Kodili & Co. Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination of this appeal.

# Duty of the 1<sup>st</sup> Appellate court

- This court being a first appellate court, it is duty bound to re-appraise the $[9]$ evidence adduced at the trial and subject it to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own conclusion from it. In so doing, however, the court has to bear in mind that it has neither seen nor heard the witnesses and should therefore make allowance in that respect, ◯ Milly Masembe Vs Scoul, SCCA No. 1 of 2000. - [10] This court is in the premises to subject the entire proceedings and evidence adduced in the court below to fresh scrutiny, re-appraise it and draw own independent conclusion. - Ground 1: The learned trial Magistrate erred in law and fact when he did not properly evaluate the evidence on record when he held that the suit land belongs to the Respondent/plaintiff and that the Appellants/defendants are trespassers thereon. - [11] Counsel for the Appellant submitted that the learned trial Magistrate's judgment in favour of the Respondent was premised on 2 main considerations; (a) That the Respondent/plaintiff had presented a sale agreement (P. Exh.1) by which he claimed to have acquired the suit land; (b) That while at locus, the elders had informed court that it is the Respondent/plaintiff who was using the suit land for grazing cattle. - (P. Exh.1), counsel argued that the [12] As regards the sale agreement circumstances under which the sale agreement (P. Exh.1) which is the main basis of the Respondent's claim to the suit land, came to be in the names of the Respondent as opposed to the true owner of land who was the father of

the Appellants and uncle to the Respondent was extensively explained in evidence thus; that as per the evidence of Kaahwa Merida (DW1), her father, the late Tibezinda in 1983 purchased part of the land where the disputed 4 acres are found from the mailo owner called Kasamba but the sale agreement for the 120 acres was written by the Respondent whom her father had trusted like his own son took advantage of her father's illiteracy and put the agreement in his own names. That proof of the aforesaid was her father's continuous occupation and use of the land without challenge until he died in 2011, their father sold several pieces on the same land to 3<sup>rd</sup> parties such as Male Salim Birungi (DW4) and Asaba Robert (DW5) and that the Respondent/plaintiff was one of the witnesses to the said agreements.

- [13] As rightly submitted by counsel for the Respondent, it cannot be true and correct that the Respondent took advantage of the illiteracy of the Appellants' father to put himself on the agreement of purchase (P. Exh.1) as the purchaser of the said land. This allegation by the Appellants impute fraud on the part of the Respondent. The allegation by the Appellants that the Respondent fraudulently wrote his name on the purchase agreement of their father purchasing the 120 acres of land that form the disputed 4-5 acres was neither pleaded nor raised during the trial when the Respondent adduced evidence of his purchase agreement (P. Exh.1). The agreement was not challenged during cross examination and since this was material evidence, the inference is that it was accepted as credible and true, URA Vs Stephen Mabosi, SCCA No.26/1995. Since it was not pleaded, the Appellants could not also be permitted to adduce evidence on such alleged fraud since this would amount to departing from the pleadings thus offending **O.6 r.7 CPR**. It is trite law that parties are bound by their pleadings and no party can be allowed to depart from his/her pleadings, Semalulu Vs Nakito, HCCA No.4 /2008 and Interfreight Forwarders (U) Ltd Vs E. African Development Bank, CACA No.33 of 1992. - [14] I find that the trial Magistrate rightly relied on the Respondent's purchase agreement of the suit land (P. Exh.1) and there are no reasons available to fault him. In any case, there is overwhelming evidence from the Appellants that the Respondent owned land adjacent or next to their father's land. Kaahwa Merida (DW1) at p.29 of the typed proceedings for example stated;

"I can see the boundary of the plaintiff and ours. There is a barbed wire in the boundary.

The plaintiff has his land. We have no problem with the plaintiff's portion."

What is in dispute is the boundary between the 2 parties' portions of land whereby the Respondent claim that the Appellants encroached and trespassed on 4-5 acres of his bigger portion of the land he bought from the said Henry Kasamba as P. Exh.1. It was the evidence of the Respondent that part of the sprouting poles of his fence that was destroyed during the encroachment on the suit portion of the land were visible in the gardens of the Appellants as proof of the trespass.

[15] As regards the WILL left by **Tibezinda**, it is also not true as alleged by counsel for the Appellants that the WILL bequeathed the 120 cares of the land to the Appellant or that the Respondent who had custody of its copy denied the Appellants to access it. Michael Tumwesige Kunihira (DW6), son to Tibezinda and a beneficiary of his estate, at p.38 of the typed proceedings revealed that he was present when the WILL was read and that;

"The will did not show anything. Who is supposed to aet what?."

Indeed, when the Respondent produced a copy of the WILL in court, it was not useful to the Appellants. It did not confer the Appellants any interest in the suit land.

- [16] As regards the portions of land the Appellants' father Tibezinda sold other people who included DW4 and DW5. The Respondent did not dispute the said sales. The late Tibezinda sold the portions of land he lawfully owned. There is no evidence that what Tibezinda sold was part of the portion of land the Respondent was claiming and that the Respondent ignored it. - [1.4] As regards the locus evidence, counsel for the Appellants submitted that the learned trial Magistrate called new or fresh evidence by 2 unsworn witnesses by the names of Basigirenda Matia and Mwesige Sanasio who had not participated in the proceedings. That he relied on their evidence as elders disregarding the evidence already adduced in court thus occasioned a fatal defect and failure of justice. - [18] I agree as submitted by counsel for the Appellants that a view of a locus in quo is to check on the evidence already given in court and witnesses to clarify what they had stated in evidence in court, David Acar & Ors Vs Alfred Aliro

- [1982] HCB 60. I do in the premises therefore find that the trial Magistrate erred in fact and law when he misdirected himself and received evidence of the 2 witnesses, Besigirenda and Mwesige whose evidence he relied on when he stated in his judgment that the "elders" (Besigirenda and Mwesige) informed court that it is the plaintiff who was using the suit land as a paddock for grazing his cattle. - The above error notwithstanding, there was overwhelming evidence from the $[19]$ Respondent corroborated by the Appellants that the Respondent's land was fenced with a barbed wire, see the evidence of DW1, DW2 and DW3, the 3rd wife of the late Tibezinda Yusufu. The trial Magistrate's observation at locus confirmed this finding. No wonder, both the 1<sup>st</sup> & 4<sup>th</sup> defendants disclosed to court that they had no interest in the suit portion of land on the grounds that it belonged to the Respondent. - In conclusion, I find that the trial Magistrate found the contested portion of $122$ land measuring approximately 4 acres with clear boundaries of a barbed wire and poles/trees which had been erected to form paddocks where he was grazing his cattle as he had explained in court during the trial of the suit. The Appellants in court claimed that the suit portion of land had family burial grounds but the graves were not brought to the attention of the trial Magistrate so as to be enabled to ascertain their location in relation to the barbed wired fencing. - [21] All in all, I find that the evidential weight before the trial Magistrate was in favour of the Respondent for the Appellants adduced no evidence that they had been in occupation and use of the suit land save for the food crops they cultivated on the trespassed upon 4-5 acres of the contested portion of land. The sole ground of appeal is in the premises found to be devoid any merit and in the premises, it accordingly fails. The Appeal is dismissed, the judgment and orders of the trial Magistrate are accordingly upheld. Costs of this appeal are awarded to the Respondent.

Dated at Hoima this 25<sup>th</sup> day of October, 2024.

Byaruhanga Jesse Rugyema **IUDGE**