Wanenge S/o Musiiho and Another v Fagayo Eridadi Yosuwa (Civil Appeal No. 007 of 2023) [2025] UGHC 424 (30 May 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO HIGH COURT CIVIL APPEAL NO. 007 OF 2023 [ARISING FROM TORORO CM COURT CS NO.032 OF 2014]**

## **WANENGE S/O MUSIIHO:::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

## **VERSUS**

# **FAGAYO ERIDADI YOSUWA:::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

JUDGMENT

#### BEFORE: HON. DR. JUSTICE HENRY I KAWESA

The Appellant being dissatisfied with the judgment and the orders made by Her Worship Doreen Ajuna Chief Magistrate Tororo made on the 1 st of June 2023 appealed to this Court against the whole decision on the following grounds:

#### **GROUNDS OF APPEAL**

- 1. The learned trial Chief Magistrate erred in law and fact when she ignored certain pieces of evidence on record hence holding that the Respondent (Plaintiff) is the rightful owner of the suit land and thereby occasioning a miscarriage of justice. - 2. The learned trial Chief Magistrate erred in law and fact when she held that the Defendant did not dispute that the land in Gibugu village which is the suit land belongs to the Plaintiff hence occasioning a miscarriage of justice. - 3. The learned trial Chief Magistrate erred in law and fact when she made a finding that the Appellant/Defendant had created a man-made channel that went beyond the stream and that it was difficult to tell where the stream used to pass hence occasioning a miscarriage of justice.

- 4. The learned trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on record hence holding that the Defendants exceeded their land boundary and trespassed on the suit land hence occasioning a miscarriage of justice - 5. The learned trial Chief Magistrate erred in law and fact when she erroneously awarded costs and damages to the respondent (Plaintiff) hence occasioning a miscarriage of justice.

#### **Duties of first Appellate Court**

- 1. It is the duty of the first Appellate Court to re-evaluate the evidence as a whole and decide whether or not the decision of the lower Court can be sustained as was held in **D. R. Pandya Vs Republic 119571 E. A. 336**. - 2. It is the duty of the 1st Appellate Court to make its conclusion bearing in mind that Court did not have the opportunity to observe the demeanor the Appellate of witnesses as they testified in the lower **Court as per Fredrick Zaabwe Vs Orient Bank & 5 Others, Supreme Court Civil Appeal No.4 of 2006.**

### **Resolution of the Appeal**

On the 1st ground of appeal, The Appellant pointed out issues regarding the Plaintiff having departed from his pleadings. This is very crucial. I note that according to the plaint, which is on record and is the basis of the case, under paragraph 4, it is stated that by '*an agreement duly executed and witnessed, the Plaintiff did buy the Suit land at a price he fully paid, and he took possession of it*.

The *Agreement of sale, together with the English translation are annexed here to and marked A & B respectively.*

However, as pointed out clearly by Counsel for the Appellants and not denied by Counsel for the Respondent, other agreements were introduced. In evidence on record under circumstances Which are not procedurally lawful. It is trite law that a party cannot depart from the pleadings on record and doing so is illegal, unlawful and fatal to that party's case.

Various authorities are available where the issue of departure from pleadings has been dealt with. In *Mohan Musisi Kiwanuka versus Asha Chand — SCCA 14/2002*, it was observed that;

*" a party's departure from his/her pleadings is a good ground for rejecting the evidence and such a litigant may be taken to be a liar*".

Also see *A. N. Bitcremo versus Damascus MunyandaSituma — CA 15/91*. The above decision was also relied on in *Sebughingiriza Versus Attorney General in HCCS 251/2012* where *Justice Monica Mugyeni* held that;

"*a party who departs from his pleadings and gives evidence contrary thereto would be deemed to be lying*". In *Kyamundu Aggrey Nankwanga Mary Civil Appeal NO. 021 of 2010 (Arising from Jinja Chief Magistrate's Court Civil Suit No. 01 of 2007*), it was concluded while dismissing the appeal that; "*if the Plaintiff/Appellant felt it necessary to allege different facts he should have applied to amend the plaint. Ref: East African Development Bank - EALR (1990- 94) EA 117*"

It is also a principle of law that parties are generally confined to their pleadings unless pleadings are amended during the hearing of a case. Once pleadings are filed the parties are bound by them.

In this appeal it is clear that the Plaintiffs (Respondents) testimony at the trial was a departure from his pleadings. The issue of departure from the pleadings by any party to a suit is settled. **Order 6 Rule 7 of the Civil Procedure Rules** provides that: *No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading*.

In the case of *Jani Properties Ltd Vs. Dar-es-Salaam City Council [19661 EA 281* it was held that:

*"Parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record and moreover, the Court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings*"

# In the case of *Interfreight Forwarders (U) Ltd. Vs. East African Development Bank, SCCA No. 33 of 1992*, the *Supreme Court* held thus:

"*a party will not be allowed to succeed on a case not set up by him and be not allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by the way of amendment other pleadings*".

The Plaintiff/Respondent did not amend his plaint to reflect that he acquired the suit land from different people named in what he presented in Court by way of an amended witness statement to which he annexed additional agreements named as PEI,

PE2, PE3, PE4 as the basis of his cause of action which are not mentioned in or annexed to the plaint. This departure from the pleadings goes to the root of the truthfulness of the Plaintiffs testimony and casts doubt on the authenticity of his claim against the Appellants/Defendants.

In the premises, I am inclined to hold that the trial Chief Magistrate erred in law and fact when he allowed parties to adduce evidence which was a departure to their pleadings on record. This Court will accordingly apply the foregoing principles on departure from pleadings, and it is my finding that the Plaintiff's/Respondent's case at the trial is inconsistent with what he pleaded. Therefore, the Plaintiffs claim of ownership of the suit land was not proved on the balance of probability. The Court proceeded on a wrong premise and thereby reached a wrong decision.

This ground is accordingly upheld.

Having answered ground one as above, I find no reason to delve into the merits of the rest of grounds 2,3,4, and 5 which automatically terminate in favour of the Appellants. This appeal succeeds on all grounds. The lower Court judgment is set aside with costs to Appellants here and in the Court below.

I so order.

…………………………….

Dr. Henry I. Kawesa **JUDGE 30/05/2025**