Wanyama and 4 Others v Bwire (Civil Appeal 17 of 2022) [2024] UGHC 443 (6 March 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO CIVIL APPEAL NO. 0017 OF 2022**

| 1. | WANYAMA MANASI | | |---------------------------------------------------------------------------|-------------------------|------------------------------------------| | 2. | BWIRE AGREY | ::::::::::::::::::::::::::::::APPLICANTS | | 3. | OBONYO AKISOFERI | | | 4. | MAJONI WILSON | | | 5. | WANYAMA HARRASON BAGEYA | | | VERSUS | | | | BWIRE JOHN GULOBA::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT | | | | | | |

### **JUDGMENT**

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

This is anappeal from the Judgment and orders of Her Worship Kaibei Cherotich – Magistrate Grade I Busia of 3rd December 2019.

The Grounds of appeal are that: -

- 1. The learned trial Magistrate erred in law and fact when she failed to evaluate the evidence regarding ownership of the suit land thereby occasioning a miscarriage of justice. - 2. The learned trial Magistrate erred in law and fact when she failed to properly conduct the locus proceedings thereby occasioning a miscarriage of justice.

### **The Duty of this Court**.

As a first appellate Court, this Court has been laid out in various cases including the *Supreme Court* decision of *Fr. Narsensio Begumisa and 3 Others versus Eric Kibebega SCCA 17/2002* that;

"*The legal obligation of the 1st appellate Court is to reappraise the evidence, and the parties are entitled to obtain from the appeal Court its own decision*

#### CIVIL APPEAL NO. 0017 OF 2022 -WANYAMA MANASI & ORS VS BWIRE J GULOBA [J'MENT]

*on issues of fact as well as of law, bearing in mind the fact that it has neither seen nor heard the witnesses*". See *Kifamunte Henry versus Uganda Cr A No. 10 of 1997/98 UGSC 20 (15th May 1998)*

In the case before me, the evidence before the lower Court, and pleadings forming the basis of this appeal were as follows:

According to the plaint filed on 23rd February 2007, and amended on 29th April 2014, the Plaintiff's claim against the Defendants jointly and severally is for a declaration that the Defendants are trespassers on the Plaintiff's land, an order for vacant possession, a Permanent Injunction restraining the Defendants from any further acts of trespass, general damages and costs of the suit. The facts constituting the claim are land out in paragraph 4 and 5 of the plaint.

The Defendants filed amended Written Statement of Defence and counterclaimed against the Plaintiff vide Written Statement of Defence/Counterclaim filed on 13th May 2014. They denied the Plaintiff's allegations against them.

It worth noting that the matter before me arose out of a retrial, there having been a decision on the first plaint made vide Judgment delivered by His Worship Kasakya M. Magistrate Grade One who found in favour of the Defendants (Wanyama Manasi and Owor Joel) and found against Bwire John J Guloba, majorly on grounds that the Plaintiff had failed to prove the case on the required standard of proof. The Plaintiff appealed to the High Court at Mbale vide HCT-04-CZA-0092-2006; whereby the High Court ordered a retrial on account of the lower Court's failure or error not to record the proceedings at the locus in quo.

A retrial was conducted before the Grade I Court which resulted in the Trial Magistrate's finding that the appellants had trespassed on the Respondent's Land. She allowed the plaint and gave orders for the eviction of the Defendants, damages to be paid and costs to be paid to the Plaintiff. This finding and orders gave rise to the present appeal.

I will now resolve the appeal following the issues as presented.

### **Issue 1.**

The learned trial Magistrate erred in law and fact when she failed to evaluate the evidence regarding ownership of the suit land thereby occasioning a miscarriage of justice.

This issue basically is a complaint that the learned trail Magistrate did not properly evaluate the evidence on record in reaching the conclusions she made regarding the ownership of the suit land.

The issues before the lower Court for determination were as follows according to the judgment

- 1. Who owns the land in dispute? - 2. Remedies available.

These issues as they stand are not borne out of the pleadings. From the lower Court record file giving rise to the retrial, the issues determined by Court were:

1) Whether or not the Defendants trespassed on the Plaintiff's land.

2) Remedies available.

It is not clear therefore from the Judgment appealed from how the Court arrived at a renaming of the issues for determination as they appear in the Judgment. Indeed, the Judgment on page I of the typed format begins with determination of the matter without indicting the issue being determined.

Page **3** of **10** This makes it difficult to analyze what evidence the trial Court considered and in respect of what particular issue. The record of proceedings itself at page 1 shows that on 9 th September 2014, Counsel Akello informed Court that Counsel Wabwire was in Kampala but never signed the Scheduling Memorandum. They sought an adjournment and case was adjourned to 7 th October 2014. On 7 th October 2014, the record shows Counsel Wabwire informing Court that:

"Case is for hearing and we are ready to proceed" the Court then received evidence from PWI; Bwire John Guloba.

The record does not show whether parties scheduled the case and set down issues. The Court itself did not indicate what issues were before it for determination.

This is contrary to the requirements of O.12 Rule1(1) of the Civil Procedure Rules which requires that trial Courts should hold a scheduling conference before the commencement of any trial. The purpose of the scheduling conference is to sort out points of agreement and disagreement, the possibility of medication, arbitration and any other farm of settlement.

The scheduling of cases helps in the framing of issues.

Issues focus the parties to the controversies that must be determined. If issues are not framed by the trial Court the hearing is flawed.

# In the *Tanzanian case of Godwin Kashauglin & Others versus John M. Nchende TZHCA 20/2020.*

Failure to frame issues was held to be fatal to the trial and led to quashing of the lower Court's verdict.

It is trite law that where the lower Court omitted to frame an issue before trying a matter in controversy, the appellate Court can frame the issue and refer it for trial to the lower Court for determination.

Page **4** of **10** I have gone at length to highlight this anomaly because in the first case the lower Court was conducting a retrial. The Court therefore needed to internalize the High Court decision that gave rise to the retrials and consider any issues referred to it for determination or state forthwith that it was hearing the matter *denovo* (*afresh*).

In this case the listing of issues would help us to know what mischief the Court was investigating. As it stands out, it appears the trial Court forthwith appears to have abandoned the question appearing on page3 regarding the resolution of issues regarding the question who owns the land in dispute" and in paragraph 5, and went ahead again to set another question "did RCI Court have authority to decide land cases?" The Court then went into determination of this question. It referred to the law contained in Executive Judicial Powers Act 1964. The court then considered the evidence of PW2 Ouma Charles to the effect that he had been summoned to effect service on 1 st and 2nd Defendants as unchallenged evidence. She then turned-on page 4 the evidence of DW3 – Akisoferi Obonyo who said was a witness in RCI Court for 1st and 2nd Defendant. The learned trial Magistrate then goes on to consider evidence by DW3, and DWI and then includes: "Issue 1 is resolved in favor of the Plaintiff"".

The Judgment above is very confusing on what particular aspect of evidence the Court based on to determine the matter of possession, and to lead to a declaration that the appellants indeed trespassed on the Respondent's land.

The complaint that the Learned Trial Magistrate failed to evaluate evidence thereby occasioning a miscarriage of Justice is justified. This is so because the pleadings and record of proceedings concerning the matter of the RCI Judgment which formed the basis of the learned trial Magistrate's decision is largely contested by the appellants. There is however very little or no discussion by the learned trial Magistrate regarding what made her believe the version of evidence as given by the Plaintiffs in disregard of that of the Defendants. There is for example evidence record by PWI Bwire John Guloba to the effect that his father Anderema, litigated

#### CIVIL APPEAL NO. 0017 OF 2022 -WANYAMA MANASI & ORS VS BWIRE J GULOBA [J'MENT]

with the 1st and 2nd Defendants and won them before RCI Court. Upon his Father's death he applied for Letters of Administration on 21st December 2005 and he is currently the Administrator. he said the Defendants left the land then later came back and encroached on the land.

PW2; Bulima Jofita, said he was part of RICI Ganjala 'B' Court which heard the matter and the 3rd Defendant was a witness for Nderema. They found that the 1st and the 2nd Defendants had trespassed on Nderema's land.

PW3: Ouma Charles said that in 1992 following a dispute between Nderema, Wanyama Manasi and Owori John.

PW4; Moses Bima said the Defendant entered upon the suit land during the lifetime of Nderema.

DWI told Court that he is Wayamba Manasi said the land is his having got it from his father Samuel Wandera in 1983.

He told Court that he has been on the land undisturbed till the matter was reported to Court, he said that he filed a land dispute in Court and he was successful, the Plaintiff appealed and a retrial was ordered.

In his evidence in cross-examination, he has never been sued in RCI Court and suit land is not in both Sigumo and Ganjala villages.

DW2 – Owori John said the land is theirs inherited from their Grandfather called Matunli, who died in 1982 and subdivided the land to them. The land stretches from Sigumo to Ganjala.

PW3; Obonyo Akisoferi said he stays on his grandfather's land and acquired the land from his father Dan Ojambo. The land is in Ganjala 'B' and is approximately 12 acres.

He said he was not party to the case involving D1 and D2 at Sigumo village. He said the Plaintiff is in Sigumo village and has never stayed in Ganjala 'B'. the land is more than six acres and that Nderema sold all his land to Dongo Nicholas, and Bernard Mpumi. He said the Plaintiff has never lived on the suit land.

DW4; Majori Wilson said he acquired the suit land from his grandfather Odande in 1997 after death of his father P. Ojambo. The land in Ganjala 'B' Approximately 12 acres and he owns 6 acres of this land.

He said he was a witness in the case of 2007 and the Defendants were successful. He said that Nderema lived in Ganjala 'B' and sold all his land to six people namely Ondongo Nicholas, Bageya Donald, who sold to Kedima, when sold to Eroma Owe Congo.

DWI – Wanyama Harrison said the portion of land on which he stays was given to him by his father Obonyo Akisoferi. The land is in Ganjala 'B' and he has live there for 10 years.

The Court visited the *locus in quo* and took notes.

Bearing in mind that this suit was a retrial, and the reason for the retrial was a failure to handle the *locus* visit properly, one would have expected the Learned trial Magistrate conducting the retrial to pay special attention to the locus visit. Unfortunately, this was not done. The notes indicate that no interest was taken to ask the parties to clarify on the so-called demarcation that the RCI Court is said to have made, the area where the Defendants encroached and the proper size of the land in dispute. No map was drawn and the locus visit did not add anything useful to explain the evidence on record.

The evidence on record as it is was largely Plaintiff's word as against the Defendant's word.

The Plaintiff neither explained nor provided enough evidence on the balance of probability to defeat the Defendant's claim of right and ownership. As I have observed the Learned Trial Magistrate made a finding basing herself on an RCI Judgment which was not the issue set out for determination.

She did not at all consider analyze or evaluate the evidence properly. This ground is therefore found in the affirmative.

In the 2nd ground that the Learned trial Magistrate erred in land and fact when she failed to properly conduct the proceedings at *locus*.

The record indicates that *locus* was visited and the Learned Trial Magistrate put down notes. She however did not relay on the locus visit to make any findings of fact. The errors alluded to of not putting down a sketch plan are noted but due to the other findings I have made do find them of procedural importance. From the notes I note that whereas the Defendants were able to clarify their boundary with each other, maintaining their stance that the land is theirs, the Plaintiff did not show Court any of the alleged boundaries planted by the RC2 in 1988. Of all the time stamps he intended to show Court he showed only 'are' (see pages 15 & 16 of the record). The visible homes, gardens and boundaries shown at locus were all shown by the Defendants. Therefore, on the balance of probability the Plaintiff did not prove his claims at locus. This ground therefore though correct, succeeds only in part in that it was erroneous not to plot the map of the locus.

The sum total of this Court's findings is that the Learned trial Magistrate did not evaluate all the evidence on record properly and therefore she reached a wrong conclusion. She addressed the wrong issue and did not determine the question of trespass and fraud which the Plaintiff set out to prove.

As on Appellate Court I have reassessed the evidence and find that the requirement of **Section 107, 102 and 103 of the evidence Act** is that he who asserts must prove

places a burden on the Plaintiff to prove that the Defendants fraudulently trespassed on his land. There is no such evidence on record. The Plaintiff failed to bring cogent evidence on record in proof of the allegations in the amended plaint. He did not therefore prove his case and I do quash the findings of the Learned trial Magistrate and replace them with a finding of an outright dismissal of the plaint.

The counterclaim which was set up by the Defendants, was in effect a denial of the plaint. The counter claim is accordingly sustained.

All in all, the appeal succeeds with orders as above.

Costs here and below allowed to the appellants.

I so order.

**………………………………..** Dr. Justice Henry I. Kawesa **JUDGE.** 6/03/24

## **FILE COPY**

## **6/3/2024**

Counsel Wabwire Denis for the Respondent.

Counsel Shawn Wanyenze holding brief for Counsel Wododi for the Appellants.

Respondent absent.

Appellants present.

Oketch – clerk.

### Counsel for the Respondent:

The matter is coming up for judgment and we are ready to receive it.

### Court:

The Judgment is ready. It is ready in the presence of both Counsel and the Appellants.

Sgd:

ASST REGISTRAR

6/3/2024