Tumwesigye v Kamugisha (Civil Appeal 54 of 2022) [2023] UGHC 453 (1 December 2023)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

## CIVIL APPEAL NO. 0054 OF 2022

## (ARISING FROM CIVIL SUIT NO.009 OF 2019 OF CHIEF MAGISTRATE'S **COURT OF KANUNGU AT KIHIHI)**

### **BETWEEN**

TUMWESIGYE GAD :::::::::::::::::::::::::::::::::::

#### **VERSUS**

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KAMUGISHA ISAAYA ::::::::::::::::::::::::::::::::::

[Appeal from the judgment of Magistrate Grade One of Kihihi (His Worship Mukobi Asanasio) dated 23<sup>rd</sup> February, 2020J

## BEFORE: HON. JUSTICE TOM CHEMUTAI

### **RULING**

The Respondent filed a Civil Suit No.009 of 2020 against the Appellant, for trespass to the suit land, which is approximately two aces of land situated at Kiruruma, Kamutungu cell, Nyakatunguru Ward, Kihihi Town Council in Kanungu District.

The trial Court in its judgment found that the suit land was allocated to the Respondent's mother as per Distribution document (Exhibit PE1) henceforth declared the Respondent as the rightful owner of the suit land. The Appellant was declared a trespasser on the suit land and ordered to vacate the same within 30 days from the date of delivery of the judgment. A Permanent

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injunction was issued against the Appellant and his agents from further trespassing on the suit land.

The appellants being dissatisfied with the judgment of the trial Court, appealed to this Court in Civil Appeal No.54 of 2022.

The Appellant's Memorandum of Appeal has three grounds of appeal which appear as follows:

- 1. The Learned Trial Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby arriving at a wrong conclusion. - 2. The Learned Trial Magistrate erred in law and fact when he held that the Appellant/Defendant did not adduce evidence of forgery of a distribution documents dated 17<sup>th</sup>/03/ 2018 whereas not thereby arriving at a wrong conclusion. - 3. The Learned Trial Magistrate erred in law and fact when he reframed issues at the time of judgment thereby arriving at a wrong conclusion.

### Representation.

M/s Bikangiso &Co. Advocates represented the Appellant. On record it is not clear which law firm represented the Respondent. However, the Respondent's submissions are on record.

Both counsel filed their written submissions and authorities thereto.

### Appellant's submissions

Counsel for Appellant argued ground 1 and 2 together. He stated, PW1 Kamugisha Isaaya testified that the suit land belonged to the children of

Tusiime Leya. That said late Leya left 7 children including the Respondent. Counsel contended that the Respondent averred that the suit land was given to them by their father George Byandagara Seburikoko who died in 2018. Counsel submitted that by time distribution agreement was made, Tusiimwe Leya had already passed on in 2003 and that there is no way she would have been present when the said document was signed. Counsel contended that the distribution agreement was tainted with forgeries.

Counsel contended that all the Appellant's witnesses testified in Court that the suit land was never given to the Respondent mother, Tusiime Leya but rather it was Appellant's mother, Kyiragwire Juliet.

Counsel contended that the evidence of DW3, the only surviving wife of late Seburikoko, the father of the both Appellant and respondent was critical and he added that DW3 stated that the suit land was given to the Appellant's mother in 1970 and that the Appellant had been using the same since then.

On ground 3, counsel blamed the trial Magistrates for changing issues in the judgment from the issues that were framed at the scheduling and contended that it caused miscarriage of justice on the Appellant.

## Submissions for the Respondent.

Counsel for the Respondent raised a preliminary objection that the appeal was filed out of time. That that Appellant did not file his appeal until 25<sup>th</sup> April, 2022. He cited Order 48 Rule 8 of the Civil Procedure Rules and the case of Ogbuonye Gerald vs Kawonya John Alex and Another, Civil Appeal No.40 of 2016.

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Counsel raised the second preliminary objection that the memorandum of appeal and the typed record of proceedings were served on the Respondent within 21 years as provided under Order 5 of the Civil Procedure Rules.

On the grounds of appeal, counsel submitted that trial Magistrate properly evaluated the evidence on record and arrived at the right decision. Counsel added that the trial Magistrate considered the evidence of PW1, PW2 PW3, DW, DW2 and DW3 and concluded according to him, correctly that the Respondent was the owner of the suit land. Counsel averred that the Respondent presented a distribution agreement as proof that the suit land was allocated to the Respondent's mother hence the Respondent was the rightful owner of the suit land. Counsel averred that there was a major contradiction in Appellant's witness, DW1 and DW1 as to when the Appellant started using the suit land whether in 1990 or 1992. Counsel contended that the Appellant did not plead fraud or prove it at the trial Court.

## Appellant's submission in rejoinder.

Counsel submitted that the trial court's judgment was delivered on 23<sup>rd</sup> February, 2022. That the Appellant filed a Notice of Appeal on 1<sup>st</sup> March 2002 and a letter requesting for a certified record of proceedings. That the Appellant obtained the record of proceeding on 25<sup>th</sup> April, 2022. Counsel contended that appeal was filed in time in this Court. Counsel on the 2<sup>nd</sup> objection stated that the record of proceedings was served on the respondent.

Consideration of the court.

Before I determine the merits of the Appeal, I will handle the preliminary objections raised by the resplendent on the appeal being filed out of time and the record of proceedings not being served on the Respondent.

I have the perused the record, I find that the Appeal was filed in the Court within the time frame as provided by the law. On the issue of service of the record of proceedings to the Respondent, the Appellant avers that the Respondent was served with the record while the Respondent denies service. In the interest of justice, I am of the view that there is need for this Court to determine the merits of this case. I am incline to agree with Appellant that the Respondent was served with the record of proceeding. I therefore find no merits in preliminary objections raised by the Respondent and I will accordingly determine the merits of the appeal.

The duty of the first appellate court has been defined in several cases. In the case of Administrator General vs Bwanika James and Others, Supreme Court Civil Appeal No.7 of 2003, Justice Oder, JSC, held:

"It is a well-settled legal principle, embodied in Rule 29 (1) of the Court of Appeal Rules, that on a first 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 a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions: See Coghland Vs. Cumberland (1898) 1 ch. 704 (Court of Appeal of England): and Pandya V R. (1957) E. A 336)"

Reference can be made also to Fr. Narsensio Begumisa and Others v Eric Tibebaga Supreme Court Civil Appeal No.17 of 2002 and Goustar Enterprises Ltd Vs Oumo [2006] EA 77.

I note that the parties are siblings sharing the same father, Mr. George Byandagara Seburikoko but different mothers. The appellant averred that the suit land was given to his mother Ms. Kyiragwire Juliet in 1970 and that he has been using the same since then.

The Respondent averred that the distribution agreement date 17<sup>th</sup> March, 2011, the suit land was allocated to his mother Ms. Tusiimwe Leya and he inherited the same from his mother.

The Appellant contends in this appeal that said that the distribution agreement date 17th March, 2011 is tainted with forgeries.

The trial Magistrate relied profoundly on the said distribution agreement which was marked exhibit PE1, to the suit land was allocated to the Respondent's mother hence the suit land belonged to the Respondent.

However, upon perusal of the record of appeal, I find that the said exhibit PE1, which is distribution agreement is some language not English. From the record of proceedings, on 13<sup>th</sup> Novermber, 2019, the original copy of the distribution agreement was shown to Court and admitted as the Plaintiff's exhibit. It is clear the distribution agreement was never translated into the language of Court, that is English.

Section 88 of the Civil Procedure Act is unambiguous and states so far as is relevant:

(1) The language of all courts shall be English.

(2) Evidence in all courts shall be recorded in English.

(3) Written applications to the courts shall be in English. See Katunda $v$ Atuhaire (HCT-05-CV-MA 185 of 2004) [2004] UGHC 77 (16 November $2004)$

This Court cannot determine merits of appeal because the trial Court's Judgement is greatly based a distribution agreement which document is not in the language of the Court, that is English.

In the result, I find this appeal incompetent before this Court and I find that there was grave error by the trial Court in admitting and relying on exhibit, the distribution agreement, that was not in the language of Court.

In the case of Luwaga Suleman Alias Katongole V Uganda (Criminal Appeal No. 858 of 2014) [2019] UGCA 202 (17 July 2019), it was held as follow;

"In general a retrial will be ordered only when the original trial was illegal or defective; it will not he ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it. Sec Fatehali Manji v The Republic [1966] 1 EA 343.

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In Rev. Father Santos Wapokra V Uganda, Court of Appeal Criminal Appeal No.204 of 2012, this Court stated as follows;

"The overriding purpose of a retrial is to ensure that the cause of justice is done in a case before Court. A serious error committed as to the conduct of a trial or the discovery of new evidence, which was not obtainable at the trial, are the major considerations for ordering a retrial..."

I accordingly, set aside the judgment of the trial Court and I order for re-trial before a different Magistrate.

Since the error was occasioned by the trial Court, each party will bear its own costs.

Dated at Rukungiri this ....................................

**TOM CHEMUTAI** JUDGE