Wandera and Another v Mujuni and Another (Civil Appeal No. 29 of 2017) [2021] UGHCCD 186 (6 December 2021)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL APPEAL NO.29 OF 2017**

#### **1. WANDERA CHRISTOPHER**

# **2. KAMANYIRE STEVEN :::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

#### **VERSUS**

#### **1. MUJUNI ALEX**

### **2. VICENT DOLLARMAN :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA**

#### **JUDGMENT**

- [1] This is an appeal from Judgment and decree of Her Worship **Akello Harriet,** Magistrate Grade 1, Masindi Chief Magistrate's court dated 4th May 2017. - [2] The facts of the appeal are that the Appellants/plaintiffs sued the Respondents/defendants for trespass on their customary land, general damages, order of permanent injunction and costs of the suit. - [3] It was the Appellants/plaintiffs' case that they were the lawful owners of the disputed land **measuring approximately 3 <sup>1</sup>/<sup>2</sup> acres situated at Kayeke village, Kigwera Sub county in Buliisa district** which they inherited from their late father **Wandera Naboth Katongole**. That their ancestors occupied and utilized the suit land from time immemorial and developed the same for their homesteads and gardens without any complaint from anybody. That however, when they left the land to fallow and because of the disturbance from animals, the defendants/Respondents without color of right and consent of the Appellants/plaintiffs, forcefully trespassed on the suit land and constructed thereon houses and kraals.

- [4] The defendants denied the plaintiffs' allegations and contended that they are the owners of the disputed land which initially was free land. They contended and averred that the plaintiffs' ancestors are on their own clan land and not the disputed land. - [5] The trial Magistrate on her part, upon evaluating the evidence before her and considering the law applicable as regards the existence of any general custom or right, found that the plaintiffs had neither developments nor usage on the suit land while the defendants had thereon houses and food trees. She concluded by finding in favour of the defendants, that the existence of the alleged customary interest favored them, the plaintiffs having failed to give an account of their fathers' historical ownership. - [6] The defendants were therefore found to be the rightful owners of the suit land entitled to quiet enjoyment of the same and could not be found to be trespassers. - [7] Dissatisfied with the judgment, the Appellants/plaintiffs filed the present appeal on the following grounds as contained in the memorandum of appeal. - *1. The learned trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby arriving at a wrong decision that the suit land belongs to the Respondents.* - *2. The learned trial Magistrate erred in law and fact when she totally disregarded the Appellants' evidence thereby arriving at a wrong decision that the appellants had not proved their case on a balance of probabilities.* - *3. The learned trial Magistrate erred in law and in fact when she failed to address himself (sic) as to the correct procedure to be*

*followed at locus in quo thereby occasioning a miscarriage of justice to the Appellants.*

## **Counsel legal representation**

[8] On appeal, the Appellants were represented by **Counsel Jarvis Lou** of **KMA Advocates, Kampala** and **Counsel Kasangaki Simon** of **Kasangaki & Co Advocates, Masindi** while the Respondents were represented by **Counsel Lubega Willy** of M/s **Lubega Babu & Co Advocates, Masindi.** Both Counsel for the Appellants and Counsel for the Respondent filed their separate submissions respectively.

## **Duty of the first Appellate court**

[9] This is an appeal from the Magistrate Grade 1 decision. The duty of this court as a first Appellate court was stated in the case of **KIFAMUNTE HENRY VS UGNADA S. C. C. A. No. 10 OF 1997** where court held that;

> *"The first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."*

See also Samuel **KANYEREZI VS THE REGISTERED TRUSTEES OF C. O. U H. C. C. NO. 17 OF 2011 (at Kabale)** where court observed that;

*"The Appellate court does re-evaluation of the evidence on record of the trial court as a whole weighing each party's evidence keeping in mind that the Appellate court unlike the trial court had no chance of seeing the witnesses while they testified and therefore the Appellate court had*

*no benefit of assessing the demeanor of the witnesses."*

[10] This court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its own conclusion. I will therefore bear these principles in mind as I resolve the grounds of appeal in this case.

### **Preliminary points of law**

- [11] In his submissions, counsel for the Respondents raised 2 preliminary points of law which are to the effect that; - **1. This is an appeal in respect to a case for recovery of land but disguised as trespass to the plaintiffs/Appellants' land to avoid the limitation period. Despite the fact that the suit in the lower court was barred by the law of limitation, the plaintiffs/Appellants had no cause of action against the defendants/Respondents in trespass since they are and were never in possession.** - [12] I note that in the lower court, the defendants/Respondents were represented by the same counsel on appeal. Counsel did not raise this objection to the effect that this is a case of recovery of land disguised as trespass and that therefore, it was barred by the law of limitation. It is my view that counsel did not raise this objection because he was satisfied as per the pleadings that this was a proper case of trespass. Besides, upon a careful perusal of the pleadings, it is clear that out of the plaintiffs' entire customary holding occupied and utilized by the plaintiffs' ancestors, the defendants allegedly trespassed upon 3<sup>1</sup>/<sup>2</sup> acres which form the disputed land.

- [13] Since the issues of whether this was a case of recovery of land and or trespass, or whether it was the plaintiffs or defendants who were in possession were never raised during the trial, and yet they are matters of facts discernible only during and after a trial, the trial magistrate cannot be faulted for having maintained the suit up to its conclusion. In the premises however that the trial magistrate concluded the suit in favour of the defendants, it follows that there were wasn't any miscarriage of justice occasioned to the Respondents. - **2. The second objection is that the Appellants filed this appeal against the Respondents but never served the Respondents with any of the appeal documents and that for this reason, the appeal is incompetent before this court for failure to serve the Respondents with the appeal documents including the hearing notices of appeal.** - [14] I do note that the Respondents tried to access the appeal records before court which took time but apparently, it is evident that they eventually succeeded in accessing the record and their counsel was able to file the required submissions to enable this court determine the appeal. As a result it is my view, that the Appellants' omission to serve the appeal documents upon the Respondents did not occasion them any injustice since counsel for the Respondents eventually filed his respective submissions and therefore, this court should proceed and determine this appeal on its merit on the basis of the submissions of all the counsel available on the record.

**MERITS OF THE APPEAL**

- **Ground 1: The learned trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby arriving at a wrong decision that the suit land belongs to the Respondents.** - [15] The second counsel for the Appellants in his opening statement implored this court to take into consideration of the fact that the Appellants at the trial court were not represented by counsel and that as such, they led their evidence in a lay man's style without so much assistance by the court. That it was the duty of the court to assist unrepresented litigants for example, by guiding to salient parts of evidence that need to be led, cross examined on and to record the evidence as exhaustively as possible. - [16] I have carefully perused and examined the lower court record. It is my view that parties to the case know their case properly more than any other person including their counsel if any and court. In this case, the trial court enabled the plaintiffs to properly present their case and during the defendants' case, she enabled them to exhaustively cross examine each of the defendants and their witnesses. In the circumstances of this case, I am not moved by the counsel for the Appellants' claims that there is a possibility where the plaintiffs could have failed to lead any vital evidence or that it was left out merely because they were unrepresented. In any case, during the entire of the plaintiffs' case both parties were unrepresented and therefore the defendants were also equally disadvantaged by lack of counsel guidance during cross examination of the plaintiffs. - [17] In the premises, I find that the trial magistrate properly enabled parties before her to exhaustively present their evidence and no miscarriage of justice therefore occasioned to either of them, more so, the plaintiffs/Appellants.

- [18] The 2nd counsel for the Appellants submitted further that the Appellants clearly established that they are the true owners of land **approximately 20 acres situate at Kayeke village, Kigwera Sub county** having customarily acquired the same from their late father **Naboth Wandera Katongole** and that the Respondents had trespassed on the said land. - [19] The 1st Counsel for the Appellants also submitted that the court of law having properly addressed its mind to the law and facts of this case would not have reached at the same decision. - [20] Counsel for the Respondents on the other hand submitted while relying on the authority of **ADRABO STANLEY VS MADIRA JIMMY H. C. C. S NO.24 OF 2013,** that the gist of a suit for trespass to land is violation of possession, not a challenge to title. Such possession should be actual; and this requires the plaintiff to demonstrate his or her exclusive possession and control of land. - [21] In the present case, counsel submitted that the evidence available from the plaintiffs is to the effect that they were never in possession and it is instead the defendants who were and are in possession of the land with developments thereon; evidence of **PW1-PW4.** That in the premises where the plaintiffs failed to prove possession, they had no cause of action in trespass against the Respondents and therefore, the trial magistrate properly evaluated the evidence on record upon considering all the evidence on record and came to the right conclusion. - [22] It is trite law that the burden of proof in civil suits is on he/she who alleges **(Section 101 U. E. A)** and the applicable standard of proof is on balance of probabilities; **SEBULIBA VS COOP. BANK LTD [1982] HCB 130**.

[23] In this case, it was incumbent on the plaintiffs as per their claims in their pleadings, therefore to prove;

**a) That the defendant trespassed on their customary land which from time immemorial, their ancestors occupied, utilized and developed homesteads thereon.**

**b) That they acquired the disputed land through inheritance from their late father Wandera Naboth Katongole who acquired it by way of 1st occupation;**

[24] In this case, the 1st Counsel for the Appellants correctly summarized the evidence of the Appellants/plaintiffs as follows;

## **a) ASP Kamanyire Steven (PW1)**

1. That the suit land is approximately 20 acres.

2. That the disputed land belonged to their late father **Naboth Wandera Katongole.**

3. That he was born on the suit land.

4. That the defendants trespassed on the land 3 years from the time of filing of the suit i.e in 2012.

5. That the defendants/trespassers constructed houses and Kraals on the suit land.

## **b) Wandera Christopher (PW2)**

- 1. That the disputed land measures approximately 20 acres. - 2. That the same has been trespassed on by the defendants - 3. That they have a neighbor to the suit land called **Bikirago.** - 4. That he was born on the suit land.

The rest of the witnesses **PW4** and **PW4** testified supporting the plaintiffs' case. [25] As can be seen from their evidence, the Appellants/plaintiffs failed to show under what custom they claim ownership of the disputed land. It

is the law that customary tenure must be proved by proof of applicable customary laws and practices; **Section 3(1) of the Land Act.** See also **ERNEST KINYANJUI KIMANI VS MUIRA GIKANGA (1965) E. A 735 at 789** where it was held;

*"As a matter of necessity, the customary law must be accurately and definitely established…The onus to do so is on the party who puts forward the customary law…This would in practice usually mean that the party propounding the customary law would have to call evidence to prove the customary law as he would prove the relevant facts of his case."*

- [26] In this case, the plaintiffs in their evidence did not allude to any custom under which they or their ancestors acquired the suit land. No evidence was adduced to show under what clan they operated or how their father **Naboth Wandera Katongole** came to acquire the land apart from merely stating that he acquired it by 1st occupation without detailing the status of the suit land before and when their father 1st settled or occupied it. They were required to give proof of their father's 1st occupation for purposes of sufficiently proving that their father was indeed a customary tenant on the suit land. The claim by **ASP Steven Kamanyire** (PW1) that "we the **Basita** used to dig for **"Kayeke"** the village where the suit land is situate itself required proof and further proof of the **Basita** customary practices. - [27] The plaintiffs had a duty therefore, to adduce evidence of the customary law by virtue of which their father gained interest in vacant land. The mere claim of their father's 1st occupancy without more is not

enough, **BWETEGEINE KIIZA & ANOR VS KADOOBA CIVIL APPEAL No.59 OF 2009 (C. A).**

- [28] On the other hand, the defendants/Respondents' defence was based on long-term usage evidenced by six grave yards, food trees (jackfruits, mangoes, guava/ and Nimph trees), their homesteads and Kraals as observed by the trial Magistrate at locus. - [29] As a result, I am unable to fault the learned trial magistrate when she observed at **page 4 of the judgment** that the plaintiffs failed to give an account of their father's historical ownership of the suit land, a very important aspect in tracing original rights over ownership of customary land and at **page 5** that;

*"…there is no evidence adduced by the plaintiffs to prove that at the time of entry on the suit land by the defendants, the plaintiffs were in lawful possession of the land and that possession of the suit land was interfered with."*

- [30] The above is also compounded by the fact that the plaintiffs left the suit land to fallow for some time as pleaded in **paragraph 5 (d) of the plaint** but they did not disclose the date when they left it so as to give room for the defendants to enter and besides, no evidence was adduced to support this averment. - [31] The foregoing takes me to the issue of whether the defendants could be found trespassers on the suit land. For the plaintiffs to succeed in an action of trespass, they must prove actual or constructive possession of the land; **JUSTINE E. M. N LUTAAYA VS STIRLING CIVIL ENGINEERING CO. CIVIL APPEAL No.11 OF 2002(S. C).** - [32] In the instant case, there is no evidence adduced by the plaintiffs to show that their father's ancestors and or late father **Naboth Katongole**

ever stayed, utilized and or cultivated the suit land. Their claim that they were born on and even cultivated the suit land is not supported by any evidence. The defendants on the other hand, led evidence of actual possession of the suit land and therefore, they cannot be found to be trespassers thereon.

[33] The above perhaps takes me back to the opening statement in the submissions of counsel for the Respondents/defendants that the plaintiffs/Appellants case is for recovery of land disguised as trespass. If one is to go by the facts as put by the Appellants/plaintiffs, then they ought to have brought an action for recovery of land from the defendants that is, if they were still within time as prescribed by **Section 5 of the Limitation Act**.

## **Power of Attorney in favour of Mugema Gabriel (DW2)**

- [34] In this case, the 1st defendant **Mujuni Alex** gave powers of Attorney to **Mugema Gabriel** (Donee) who testified in court as DW2. - [35] In his testimony of 3/11/2016, **Mugema Gabriel** (DW2) testified that **Alex Mujuni**, the 1st defendant is a grandson of **Murama** but he died in **Murama.** This is clear evidence that DW2 testified on behalf of the deceased **Mujuni Alex,** the 1st defendant without instructions from the deceased since this was after his demise. Testimony given on behalf and in the name of the deceased on the authority of the power of Attorney of the deceased is a nullity because the power of attorney lapses upon the death of the donor.

[36] In **NANZIRI YAYERI (Suing through her lawful Attorneys; Semyano Peter, David and Harriet Ihale Meera) VS MAMIREMBE KAGIMU & 7 ORS H. C. C. S. NO.313/2014,** it was held;

> *"The position of the law is that a power of Attorney terminates upon the death of the principal. In other words, an agent can only act for a living person. When an agent carries out an act, he carries it out as though it was the principal carrying it out. Therefore, if the principal is dead, then they obviously cannot carry out the act. A power of Attorney can only be effective after the principal's death where the agent effects an act without knowledge of the principal's death."*

- [37] In the instant case, the Donee **(DW2)** knew that the donor (1st defendant) was already dead at the time he testified on his behalf. That evidence is a nullity and therefore, I find that the trial magistrate illegally recorded **DW2's** evidence and it ought to have been expunged accordingly. - [38] The expunging of **DW2's** evidence however would not in any way mean that the plaintiffs would be relieved of the burden to prove their case.

## **The trial Magistrate's theories**

[39] **1.** The plaintiffs never intended to return to the suit land and their claim of ownership is now exacerbated by the discovery of oil (p.5 of the judgment).

**2.** The fact that none of the wives of the plaintiffs' father settled back on the suit land is an indication that the plaintiffs intended to permanently migrate from the suit land.

- [40] I do agree that none of the witnesses on record testified that the Appellants abandoned the suit land with no intention of returning. Indeed, it cannot be that an owner of land who does not use the same for sometime, loses ownership of the said land. In the instant case however, the point is that in the first place, the plaintiffs have failed to prove that they initially occupied and owned the suit land and then left it fallow with an intention of returning to it; **Article 26 of the Constitution** in the premises is not applicable in the instant case. - [41] I agree that the trial magistrate's conclusion that the plaintiffs never intended to return to the suit land and their claim of ownership is now exacerbated by the discovery of oil is conjecture and unfounded. That conclusion was not supported by any evidence on record but as I have already observed, there is no evidence that the plaintiffs ever occupied and owned the suit land. The misdirections and theories of the trial Magistrate therefore did not necessarily occasion any miscarriage of justice as they were not the determinant points of the determination of the suit. - [42] The Respondents/defendants were consistent as to how they came into ownership and eventual possession of the suit land. I have not been able to appreciate the contradictions raised by the 2nd counsel for the Appellants. The foregoing evaluation and analysis of the evidence before the trial Magistrate sufficiently disposes the **2 nd ground of appeal.** It follows therefore, that both the **1 st and 2nd grounds of appeal** are found to be devoid of any merit and they accordingly fail. - **Ground 3; The learned trial Magistrate erred in law and fact when she failed to address herself as to the correct procedure to be followed**

## **at locus in quo thereby occasioning a miscarriage of justice to the Appellants.**

- [43] Second Counsel for Appellants submitted that this is a case that required a locus visit so that the witnesses in court could graphically demonstrate their evidence to the court. That the lower court actually did conduct a locus visit but that however, the trial Magistrate improperly conducted the locus visit and yet drew numerous and case resolving conclusions from the locus visit. That the proceedings at locus have to be recorded clearly and indicate if there was cross examination and what each and every witness said; **KWEBIIHA EMMANUEL & ANOR VS RWANGA FURUGENSIO AND 2 ORS H. C. C. A NO.21 OF 2011**. - [44] Counsel argued that in the instant case, the record does not indicate what transpired at the locus in quo, that the scrutiny of the record of proceedings will show that there is actually no map of the disputed land that was drawn yet the trial Magistrate heavily relied on the findings at the locus which was to the prejudice of the Appellants. - [45] Upon a careful perusal of the typed record of the lower court, I find that no record of locus proceedings were included. However, upon cross checking the handwritten script of the record, it is clear as conceded by the 2nd counsel for the Appellants that court visited locus. The trial Magistrate had very scanty notes on locus but drew a sketch map of the suit land which majorly reflected the developments on the land by the defendants ranging from gardens, food trees, homesteads, Kraals and above all 6 grave yards attributed to the defendants. - [46] Only one witness, **Florence Mbabazi** Auntie to the plaintiff testified in support and therefore, on behalf of the plaintiff and was duly cross examined by the defence. She had not testified in court and there is no

evidence that she took oath before testifying at locus. This was an error on part of the trial Magistrate but I am not ready to find that it did occasion any miscarriage of justice to the Appellants since **Florence Mbabazi** turned to be their witness.

- [47] As was held in **YESERI WAIBI VS EDISA LUSI BYANDALA [1982] HCB 38,** the practice of visiting locus in quo is to check on evidence given by witnesses and not fill gaps or else the trial Magistrate may run the risk of making himself a witness in the case. - [48] In the instant case, though the trial Magistrate did not record her observations and findings at locus, she did draw a sketch map of the locus in quo and reflected her observations thereon. Though her approach was not satisfactory, failure to record her observations in the instant case was not such a fatal omission to require this court to find the locus proceedings null and void or set aside the whole trial in view of the fact that her observations could easily be discerned from the sketch map of the locus. It is therefore my view that the error did not occasion any miscarriage of justice to the Appellants. - [49] All in all, I find that all the grounds of appeal lack any merit and as a result, the appeal is accordingly dismissed with costs here and below.

**Dated at Masindi this 6th day of December, 2021.**

**Byaruhanga Jesse Rugyema JUDGE.**