[2024] UGHC 673

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-0076-2021

(Arising from ISG-036-CV-LAND-0020-2019)

#### 1. AFRICA RONALD

# 2. BINCHU IMMACULATE

ARINAITWE :::::::::::::::::::: APPELLANTS

## VERSUS

- 1. KYAGULANYI YASINI - 2. MUKASA MOSES - 3. HAJJATI AJIRI NAMAGEMBE - 4. NAKADDU SUMINI :::::::::::::::::::::::::::::: RESPONDENTS

*(Being an Appeal from the Judgment and Orders of His Worship Muhangi Gibson, Magistrate Grade One sitting the Chief Magistrate's Court of Isingiro at Isingiro dated 8th December 2021)*

BEFORE: HON LADY JUSTICE JOYCE KAVUMA

## JUDGMENT

#### Background.

[1] The background of this appeal was that the Appellants sued the Respondents based on a cause of action of trespass for which they sought for a permanent injunction, general damages, punitive damages, exemplary damages and costs of the suit.

[2] The Appellants' facts were that the 1st Appellant was born in the year 1964 by the late Muganyika on the same land together with the father of the 2nd Appellant and all lived on the same land with their mother. That on the said land, they had a permanent residential house, banana plantations, coffee plantations, a mature eucalyptus forest and other several seasonal crops. That the Appellants started the process of acquisition of a land title from the District Land Board and the same was offered to them. That the Appellants received a letter addressed to their area LC1 Chairperson informing him that the Respondents owned land in the area by virtue of distribution of the estate of the late Jaffari Sentamu done on 7th July 1989. That the Respondents then proceeded to the suit land with buyers and attempted to divide the land to themselves and later sale it without any claim of right. That they further planted boundary marks in the land.

[3] In their joint defence, the Respondents denied all the allegations in the plaint contending that the plaint did not disclose a cause of action against them, that their late father Jaffari Sentamu owned titled land described as plot 12 Block 2 land at Rwakiruli in Isingiro District which was distinct from that claimed by the Appellants. That when their father died in 1980, the family sat and shared his estate on 7th July 1989. That the District Land Board could not allocate or give to the Appellants land which was already titled and belonging to the estate of the late Jaffari Ssentamu. They prayed that the boundaries of certificate of title be opened to ascertain whether the Respondent's land overlapped with that of the Appellants.

[4] In his judgment, the learned trial Magistrate found that the Respondents had proved that the suit land formed part of the estate of their late father Jaffari Sentamu for which they were beneficiaries and were therefore not trespassers thereon and further that the Appellants did not prove that they had any interest in the suit land. The suit was dismissed with costs.

The Appellants feeling dissatisfied with the above decision of the trial Magistrate preferred the instant appeal on 20th December 2021 on the following grounds;

- 1. The learned Magistrate erred in law and fact when he failed to properly evaluate evidence of plaintiffs and defendants on court record causing a substantial miscarriage of justice. - 2. The learned Magistrate erred in law and fact when he failed to appreciate the principles governing customary land ownership vis-à-vis land registered under registration of titles Act and this led him to reach a wrong conclusion. - 3. The learned trial Magistrate erred in law and fact when he failed to consider plaintiffs as bona fide occupants on the suit land which led him to reach a wrong conclusion. - 4. The learned trial Magistrate erred in law and fact when he relied on exhibits that were improperly before court to give his judgment in the defendants' favour occasioning injustice to the appellants. - 5. The learned Magistrate erred in law and fact when he failed to properly conduct locus proceedings which caused a miscarriage of justice to the Appellants.

6. The learned trial Magistrate erred in law and fact when he held that the suit land formed part of the estate of late Sentamu whereas the same was not proved in court.

Counsel for the Appellants prayed that the instant appeal is allowed, the decree be set aside and substituted with an order granting reliefs sought in the plaint and or order a retrial and the Respondents be ordered to pay the costs of this appeal and in the lower court.

#### Representation.

[5] The Appellants were represented by M/s Mwene Kahima, Mwebesa & Co. Advocates while the Respondents were represented by M/s Tumwebaze Emmanuel Advocates & Solicitors. Both counsel filed written submissions in the matter which I have considered.

#### The duty of this court.

[6] As the first appellate court, this court is duty bound to reevaluate all the evidence that was available to the trial Magistrate and make its own inferences on all issues of law and fact. (See Fr. Narcensio Begumisa & Others vs Eric Tibebaaga SCCA no. 17 of 2002, Kifamunte Henry vs Uganda, Criminal Appeal No. 10/97; Bogere Moses and Another vs Uganda, Criminal Appeal No. 1/97, Pandya vs R (1957) EA 336, Ruwala vs R (1957) EA 570 and Coglan vs Cumberland (1898) 1 Ch. 704).

I shall therefore proceed to re-evaluate the evidence as the law requires and make my own inferences on all issues of law and fact.

#### Analysis and decision of court.

[7] Counsel for the Appellants submitted on grounds 1 and 2 jointly and on the remaining grounds separately.

Ground 1: The learned Magistrate erred in law and fact when he failed to properly evaluate evidence of plaintiffs and defendants on court record causing a substantial miscarriage of justice.

Ground 2: The learned Magistrate erred in law and fact when he failed to appreciate the principles governing customary land ownership vis-à-vis land registered under registration of titles Act and this led him to reach a wrong conclusion.

On grounds 1 and 2, counsel submitted that the suit land as claimed by the Appellants was held under customary tenure and that the Appellants inherited it from their mother the late Munganyika. That the Appellants having stayed on it since they were toddlers in 1970, it was irregular for the trial court to hold that under Section 59 of the Registration of Titles Act the certificate of title was conclusive evidence of ownership of the land in question.

That according to the court record, the said certificate of title was never admitted by court as evidence and in absence of it, the Respondents had failed to show the trial court that the suit land had a land title. That in absence of the land title, the Respondents could not be found as owners of the suit land.

That the learned trial Magistrate should have disregarded the evidence of DW4 a surveyor who according to counsel was an unqualified surveyor.

That the Appellant's evidence showed that they were in customary ownership of the suit land by the fact that they had been in occupation thereof since the 1970's.

In reply, counsel for the Respondents submitted that the learned trial Magistrate reached a proper conclusion after considering the evidence on the trial court record. That the Appellant's evidence had discrepancies as to whether they inherited the suit land or it was gifted to them inter vivos. That the Respondents proved the position of the land as forming part of the estate of their late father Jafar Ssentamu as per the survey report DEX2.

That there was no need for the trial Magistrate to consider principles governing customary land when there was no such a claim in the pleadings and no evidence was led to prove the customary ownership of the Appellants.

[8] Having considered the submissions of both counsel on the first two grounds of appeal, I observed that the question that the parties want this court to answer was, on the evidence before the learned trial Magistrate which of the parties owned the suit land.

It is now a settled principle of evidence that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove those facts exist. (See Section 101 of the Evidence Act). It is said that this person has the burden of proof. This is the person whose suit or proceeding would fail if no evidence at all were given on either side. (See Section 102 of the Evidence Act).

The instant matter, being a civil one in nature, the standard of proof was on a balance of probabilities. (See Miller vs Minister of Pensions [1972] 2 All ER 372).

The Appellants, having instigated the proceedings in the trial court and being desirous of the trial court giving judgment in their favor on the claim that they owned customary land situated at Omukabale Cell, Masha Sub County, Isingiro district having inherited it from the late Munganyika Febronia, had the initial legal burden to prove that these facts were probably true.

The initial legal burden is probabilistic in nature and could only shift onto the Respondents when the Appellants had led evidence that was more than probable to be true. Failure to discharge this burden meant that their suit was to be dismissed.

[9] To discharge the above burden, according to the evidence on the trial court record, the Appellants called seven witnesses.

#### The Appellants' evidence at trial.

PW1 Africa Ronald testified in chief that the suit land was given to him and his niece the 2nd Appellant by his mother the late Munganyika Febronica as a gift before her death in 2007. That he was born the suit land, had a permanent residential house on the land next to it, banana plantations, a mature eucalyptus forest and other seasonal crops. That he had always known the Respondents as his neighbours with land stopping in the valley.

In cross-examination, he maintained that the late Jafari Sentamu had land neighbouring the suit land, did not know the size of his land and that he came onto it in 1970. That he never knew that the late Jafari Sentamu had a land title to his land. That whereas he was given the suit land as a gift in 2004, he did not have any proof or document to show this. That the suit land belonged to his late mother who got it from the district commissioner before he was born. That she was given a total of 5 Ha of land but gave 3 Ha to a one Dr. Katukure and the balance gifted to the appellants.

PW2 Bichu Immaculate Arinaitwe testified in chief that the suit land was given to them by her grandmother before she died in the year 2007. That she was born on the suit land in 1982 to the late Jonino Mohamed Pagricoul and had lived thereon since with the 1st Appellant.

In cross-examination she testified that she did not stay on the suit land. That they owned 2.5 acres of the 5 acres of the land. That the suit land was bordered by sisal plants to the right, road to Rwesingoma, Isingoma to the South and to the north was a road from Mbarara to Kikagati where there was a swamp. That whereas she did not know the late Sentamu, she had heard about him being a neighbour to the suit land. That she had never seen any of the Respondents uprooting sisal or boundary marks of the suit land.

PW3 Joy Kitakure testified in chief that she settled in the area in 1962 and knew both parties to the suit. According to her, the Appellants' mother settled on the suit land much earlier than the Respondents' late father. That the appellants' late mother's land stretched from the main road through the valley. That the boundary between the land belonging to the appellants' late mother and Respondent's late father was where there was a swamp and sisal trees.

In cross-examination she found the late Jafari Sentamu already owned in the area as her neighbour. That Sentamu's land was big and did not know its size. That the suit land was owned by the 1st Appellant who had planted eucalyptus trees and banana plantation onto it.

PW4 Karekyezi John testified in chief that she was born in that village. That the suit land had always belonged to the late Munganyika Febronia who gave it to the Appellants in the year 2004. That the land stretched from the main road through the valley and the late Munganyika used to cultivate the land up to when she died.

In cross-examination he testified that he was born in the area the Respondent's late father had land in the area which was big. That the 1st Appellant inherited the suit land. That the boundaries of the suit land at the time it was given to the Appellants were sisal trees and "bikoro" trees. That he did not know whether the Respondent's late father had a land title. He further maintained that the Appellants were given the suit land by the late Munganyika and on that day he was present.

PW5 Bakihawenki Julius testified in chief that he knew the suit land having cultivated it in the years of 1997, 1999 and 2017. That the suit land had boundaries separating that of the late Sentamu and late Munganyika as sisal plants and "ebiko". That the suit land belonged to the late Munganyika until she gave it to the Appellants. That he always knew the Respondents as neighbours whose land stopped in the valley where there was a swamp.

In cross-examination he testified that he had lived in Kabaare II Cell since 1994. That he knew the Appellants and only the 2nd Respondent. That at the time he settled in the area, he found Jefari Ssentamu had already died. That the 2nd Respondent was a son to Jefari Ssentamu. That Jefari Ssentamu had land in Kabaare cell and not in Kabaare II Cell. That the suit land was in Mukabaare Cell and not Kabaare II cell and he did not know how big the suit land was. That he was authorised to cultivate the land by the late Mungerika a portion equal to 8 fields.

PW6 Kyogabirwe Margret Kazooba testified in chief that she knew the Appellants and Respondents as children of the late Jaffari Sentaamu. That she settled in the village in 1966 and she found the late Munganyika Febronia already settled in the area who owned land in the area including the suit land. That by the time she settled in the area, Sentamu had not yet settled in the area.

In cross-examination she testified that she did not know the size of the suit land but he knew the boundaries of the land. The land was for the 1st Respondent which was neighboured by the 1st Appellant in the East, to the left was Haji Sentamu to the South Isingoma to the North is a road. That in 2004 the late Munganyika told her that she was going to distribute land to her children. That she was not present during the distribution. That the boundaries between the land belonging to Jefari Ssentamu and Munganyika was the sisal trees and Biko trees. He was not present when the said boundaries were planted. That Jefari Sentamu was utilizing the land.

PW7 Isingoma Brazio testified that he settled near the suit land in 1963. That Jefari Sentamu was his neighbour and his land was about 120 acres. That sisal plants separated Ssentamu's land from that of Munganyika. That he found those boundaries when he came into the area. That in 2019 he brought a surveyor to open boundaries of his land and the surveyor told him that he had encroached on Ssentamu's land.

## The Respondent's evidence at trial.

[10] DW1 Kyagulanyi Yasin testified in chief that the suit land belonged to his late father. That he applied for a lease for the land in 1973 and granted an initial lease offer of five years in 1973 which was later extended to 49 years from 1st June 1978. That a certificate comprised in LRV 1211 Folio 25 Isingiro Block 2 Plot 12 land at Rwakiruli Kabale measuring approximately 45.3 Ha was given to his late father. That from 1973, he and the late father utilized the suit land. That when his father died, his estate was distributed in accordance with sharia law. That per the distribution, he and other siblings got shares on the suit land. That the suit land fell within his share onto which the Appellants had trespassed.

His evidence remained unchallenged in cross-examination.

DW2 Mukasa Moses testified in chief that he was the chairperson LC1 of Nyakabungo Villange. That he had been chairperson since 2021. That he resided on the suit land which he bought from the 4th Respondent and was not a trespasser thereon.

His evidence also remained unchallenged in cross-examination.

DW3 Ssenkatuka Jaffari testified in his evidence in chief corroborated DW1's evidence I chief.

The evidence remained un challenged during cross-examination.

DW4 Ampumwize Apollo testified that he was a licensed surveyor operating under Landtec Consult Surveyors. That he received instructions from the Staff Surveyor of Isingiro District in respect of opening boundaries for the suit land. That on 26th April 2021 he proceeded to the suit land for boundary opening in the presence of the Respondents since the Appellants had expressed unwillingness to attend the process. That the exercised was carried out and findings documented in a report. The said report was admitted by the trial court as DEX2.

The survey report established that the whole piece of land claimed by the 1st Appellant was within the boundaries of Plot 12.

In cross-examination he testified that he had 16 years' experience as a surveyor. That he was not yet registered by the surveyor registration board.

## Proceedings at the locus in quo.

[11] At locus only the 1st Appellant Africa Ronald testified before court which he told that the suit land bordered that belonging to the Respondent's father Hajji Sentamu on the North, to the west was the Isingiro-Kikagati Road, South was Kyoga.

The learned trial Magistrate observed that there were no visible mark stones at the points on Isingiro-Kikagati Road. That the suit land fell within the certificate of title as shown by the surveyor's opening boundaries and as per the cadastral prints.

## Resolution.

[12] Before proceeding to make my findings on the first two grounds of appeal in the instant matter as submitted upon by counsel for the Appellant, having analysed the submissions of both counsel and the evidence on the trial court record, I found that the resolution of the two grounds would in effect impact and resolve grounds 3, 4 and 6 of the instant appeal.

As I already observed at the start of this judgment, the suit as filed by the Appellants in the trial court from which this appeal arises was one based on a cause of action for trespass. Indeed, the learned trial Magistrate rightly in my opinion crafted the first issue for resolution by the court in similar terms.

The first issue that the trial Magistrate considered was whether the Defendants were trespassers on the disputed land. The learned trial Magistrate, after considering the evidence before him found as follows, at page 6 of his judgment;

> "The defendants proved that the disputed land falls within a Certificate of Title for LRV 1211 Folio 25 Isingiro Block 2 Plot 12 Land at Rwakiruli. They also proved that the said land forms the estate of late Jafali Ssentamu for which they are beneficiaries. They cannot trespass their own land. The plaintiffs failed to prove that they inherited the suit land or acquired it by way of gift inter vivos. I find that the plaintiffs have no interest in the suit land and no legal possession of the same."

[13] The law on trespass to land is now settled. Trespass to land consists in any unjustifiable intrusion by one person upon land in possession of another. (See Justine E. M. N. Lutaaya vs Stirling Civil Engineering Co. Ltd Civil Appeal no. 11 of 2002).

It is an action for enforcement of possessory rights and for a party to succeed in such an action, they must prove possessory interest in the suit land. (See Adrabo vs Madira (HCCS no. 24 of 2013) per Mubiru J).

Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another. (See Clerk, J. F., Lindsell, W. H. H., & Dugdale, A. M. (2006). Clerk & Lindsell on torts. London: Sweet & Maxwell at page 842).

Proof of ownership is prima facie proof of possession, unless that another person is in possession, but where there is a dispute as to which of two persons is in possession, the presumption is that the person having a title to the land is in possession. (See for example Herbert vs Thomas (1835) 1 C. M & R. 861 and Jones vs Chapman (1847) 2 Ex. 803.)

[14] The evidence of who had title to land comprised in LRV 1211 Folio 25 Isingiro Block 2 Plot 12 which the Respondents in this case claimed formed part of the suit land was never challenged by the Appellants during trial as having been the administrator of the estate of the late Hajji Jafali Ssentamu; Hakeem Lukenge. The first Respondent in the instant appeal testified that he was a beneficiary to the estate of the late Hajji Jafali Ssentamu and his share of the estate was where the disputed land fell.

The Appellants' evidence at trial, specifically that of PW1 Africa Ronald was that he did not know that the late Hajji Jafali Ssentamu had a land title for LRV 1211 Folio 25 Isingiro Block 2 Plot 12. That he was in possession of the suit land. His testimony was that he had a permanent residential house thereon, a banana plantation, mature eucalyptus forest and other seasonal crops. That the late Hajji Jafali Ssentamu's land neighboured the suit land.

PW2 Bichu Immaculate, though she stated in her evidence in chief that she stayed on the suit land with PW1, she contradicted herself in crossexamination stating that she did not stay on the suit land.

[15] It is worth noting, from the evidence before this court, that none of the Appellants' witnesses in the matter knew the exact size or boundaries of the land that belonged to the late Jaffari Ssentamu's estate and the Respondents claimed that they had encroached into their late father's land.

This was effectively a boundary dispute.

The late Jaffari Ssentamu, had titled land comprised in LRV 1211 Folio 25 Isingiro Block 2 Plot 12 a fact that was undisputed.

Ordinarily, descriptions contained in title deeds will fix boundaries. This is true for land registered under the Registration of Titles Act (RTA) as LRV 1211 Folio 25 Isingiro Block 2 Plot 12. Land registered under the RTA required a cadastral survey to be prepared which is based on a fixed boundary principle. Such a survey has an accurate linear and angular measurements to aid the registration of a title of a plot. The boundaries of land registered under the RTA can easily be identified by any surveyor because of the fixed nature of its beacons. (See for example in Ali Mohamed Salim vs Faisal Hassan Ali (2014) eKLR).

[16] The trial court record indicates that on 24th February 2021 counsel for the Respondents sought for leave from the court for the boundaries of land comprised in LRV 1211 Folio 25 Isingiro Block 2 Plot 12, to be opened. Counsel for the Appellant did not object to the said prayer which was granted by the court on 17th March 2021.

DW4 Ampumwize Apollo was the one that did the boundary opening in the instant matter and his survey report was admitted by the trial court as DEX2 with no objection from counsel for the Appellants. The findings in the report were verbatim that;

> "The whole piece of land claimed by the plaintiff i.e., Mr. Africa Ronald (with the forest plantation) is within the respective boundaries of plot 12 according to the data I obtained from the ministry zonal office (copy of illustration maps attached – Attachment 4). There is a community road that also passes through the land and the respective surveyed boundary extends beyond that community road as can be seen on the attached maps."

No objection was raised during trial or in the final submissions of the Appellant in the trial court in regard to the above findings of DW4. Objection was only raised in the instant appeal by counsel for the Appellant wherein they submit that DW4 was unqualified and him having not shown his letter of appointment it was not proper for the trial court to rely on his findings and on what counsel referred to as ghost certificate of title.

No response was made by counsel for the Respondents.

[17] It is now settled that under limited circumstances, an appellate court may allow new issues to be raised notwithstanding that the party relying on them did not utilise the opportunity at the trial to do so. (See Twakirane vs Bamusede (HCCA no. 0046 of 2007)).

Whether or not an appellant can, on appeal, raise a new point of law or issue not argued before the lower court is a matter for the discretion of the appellate court. (See Makula International Ltd vs Eminence Cardinal Nsubuga and Anor 1982 UGSC 2).

In Tanganyika Farmers Association Ltd vs Unyamwezi Development Corporation Ltd [1960] 1 EA 620, counsel for the appellants attempted to treat the evidence of certain witnesses in a way which was the reverse of that adopted by counsel who had appeared for the appellants in the High Court. The learned Justices of the East African Court of Appeal held that;

> "An appellate court has a discretion to allow an appellant to take a new point on appeal if full justice can be done to the parties but since the court was far from satisfied that the matter had been properly pleaded or that all the facts bearing upon the new point had been elicited in the court below the appellants could not now be permitted to argue a new case."

It therefore follows that the test to be applied by the appellate court in deciding whether to take a new point not raised at trial is that the court must be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention as completely as would have been the case if controversy had arisen at the trial, and, secondly that no satisfactory explanation could have been offered, by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box. The guiding principle being whether full justice can be done between the parties. (See Makula International Ltd vs His Eminence Cardinal Nsubuga (supra), North Staffordshire Railway Co. v. Edge [1920] A. C. 254 and In The Tasmania [1890] 15 A. C. 223).

[18] The justice of the instant suit made the survey report and boundary opening process very crucial and necessary in resolving the dispute between the parties completely.

This court has in previous decisions decided and found that the importance of opening up boundaries of land subject to a suit and making a survey report thereto does not take away one's land. The survey report only gives scientific proof as to the ownership of the suit land. (See for example Boniface Kagubale and 9 Ors vs Kiboga District Local Government and three others HC Misc. Appn. No. 10 of 2019).

The learned trial Magistrate rightly in my considered opinion ordered the process.

This court is left to wonder why counsel for the Appellant at appeal would resist the report at this point?

Once the learned trial Magistrate ascertained from the findings in the survey report DEX2 that the land the Appellants claimed fell within the land comprised in LRV 1211 Folio 25 Isingiro Block 2 Plot 12 it was easier for him to resolve the suit before him.

It is therefore my finding that it would not be doing full justice to the parties in the instant suit if the new point is allowed to be raised at this point.

Even if this court were to moot the credibility of DEX2 as evidence before the court and that the trial court had improperly admitted it and went should have expunged it from the court record, the instant suit, having been one for trespass to land, evidence of possession at the time of filing the suit was more cogent in the circumstances of the case.

[19] It therefore follows, from the findings in the survey report which was admitted by the trial court as DEX 2 and in agreement with the findings of the learned trial Magistrate that the land claimed by the Appellants fell within the land comprised in LRV 1211 Folio 25 Isingiro Block 2 Plot 12.

PW1 Africa Ronald the 1st Appellant alleged in his testimony in chief that the portion that they claimed the Respondents to have trespassed upon was given to them as a gift inter vivos by PW1's late mother Muganyika Febronica in 2007.

He maintained this testimony in his cross-examination and only differed in the year the said gift was made when he mentioned that it was made in 2004.

PW2 Bichu Immaculate, PW4 Karekyezi John and PW5 Bihawenki Julius corroborated the above testimony.

On the above evidence, the learned trial Magistrate at page 6 of his judgment found as follows;

> "There is no way the late Munganyika Febronia could deliver the suit land as a gift inter vivos to the plaintiffs when it was not her land as proved by the production of the certificate of title that was in existence during her lifetime and the same has never been challenged."

[20] Counsel for the Appellant submitted that the Appellant gave evidence of customary ownership of the suit land and that he has been in occupation of the suit land since the 1970's having gardens of seasonal crops and planting eucalyptus trees at different times and that the Appellant's occupation remained unchallenged by the Respondents who came to the suit land in 2019.

On the other hand, counsel for the Respondents submitted and rightly so in my view that the trial Magistrate had no need to consider principles governing customary land ownership when there was no such claim in the Appellant's pleadings and there was no evidence adduced to prove the said customary land ownership.

[21] Occupation of land for a long time does not of itself prove the existence of customary ownership of the said land. The tenets of how customary ownership of land is proved are now settled.

Although evidence of user of unregistered land may be sufficient to establish customary ownership of such land, and possession can sometimes be used as an indicator of ownership or even to create ownership, proof of customary tenure at the least requires evidence of a practice that has attained such notoriety that court would be justified in taking judicial notice of it under the law. (See Marko Matovu and 2 Ors vs Mohammed Sseviiri and 2 Ors Supreme Court Civil Appeal No. 7 of 1978; Geoffrey Mugambi and 2 ors vs David K. M'mugambi and three others, C. A. No. 153 of 1989 and Ogaba vs Kilama (High Court Civil Appeal No. 51 of 2015)).

It has been held further that failure to produce such evidence would require the party to prove the existence of a specific applicable customary rule by evidence of persons who would be likely to know of its existence if at all it exists or by an expert in accordance with Section 43 of the Evidence Act. (See Ernest Kinyanjui Kimani vs Muira Gikanga [1965] EA 735 at 789).

None of such evidence has been found on the record of the trial court to prove customary occupation by the Appellants of the suit land.

[22] The above notwithstanding, Counsel for the Appellants submitted that in the event that the Respondents' purported certificate of title is found to exist and is genuine, the Appellants being on the suit land and having been there for over 25 years before coming into force of the 1995 Constitution, Appellants were bona fide occupants.

Counsel for the Respondents submitted that the Appellants never at any time filed a claim regarding bona fide occupancy in their pleadings and therefore the trial Magistrate would not have considered the same and cannot be blamed for a claim that was not before him. That the Appellants were on a fishing expedition in the instant appeal

[23] The Constitution of Uganda and Land Act, Cap. 227 afford security of tenure to citizens from having their interests in land being alienated if they can prove to court that they were in occupation or possession of the suit land for more than twelve years at the time of coming into force of the 1995 Constitution as bona fide occupants thereon. (See Article 237(8) of the Constitution and Section 31(1) of the Land Act Cap. 227, Kampala District Land Board and another vs Venansio Babweyaka and Ors (Supreme Court Civil Appeal no. 2 of 2007) and Kampala District Land Board and Chemical Distributors vs National Housing and Construction Corporation (Supreme Court Civil Appeal no. 2 of 2004)).

It is indeed true as submitted by Counsel for the Respondent, the Appellants did not plead bona fide occupancy in their pleadings before the trial court.

In his judgment, the learned trial Magistrate at page 4 observed as follows;

"…However, the presence of the trees planted by the plaintiffs signifies that they had possession of the disputed land. The question to answer is whether this possession is lawful and or whether the plaintiffs have an interest in the suit land.

In the plaint, the plaintiffs alleged that they inherited the suit land but this is not supported by evidence. The plaintiffs failed to prove that they inherited the land from the late Munganyika Febronia. They abandoned this allegation as contained in their pleadings and instead claimed the suit land as a gift inter vivos. It is my considered view that the alleged mode of acquisition of the suit land by the plaintiffs is the crux of this case. A departure from that allegation cannot be ignored.

The Plaintiffs are bound by what they stated in their pleadings and no party can be allowed to depart from its pleadings…the plaintiffs cannot be allowed to turn around and claim that they got the suit land by way of gift inter vivos when they had pleaded that they got it by inheritance. The plaintiffs made a major contradiction and such evidence that departs from pleadings must be rejected."

[24] With greatest respect to the learned trial Magistrate, the suit before him was one for trespass to land and not one for declaration of ownership. As I have already observed at the start of this judgment, an action in trespass is an action for enforcement of possessory rights and for a party to succeed in such an action, they must prove possessory interest in the suit land.

I note that through the evidence brought by the Appellants at trial to prove trespass against the Respondent, emphasis was on the fact that the 1st Appellant was in occupation of the suit land.

That he had on the said land a permanent residential house, banana plantations, a mature eucalyptus forest and other seasonal crops.

The issue of bona fide occupancy was raised in similar terms in counsel for the Appellant's final submissions before the trial court but were however not considered.

[25] According to the court record, PW3 Joy Kitakure testified that PW1's mother settled in the area in 1962. PW2 Bichu Immaculate testified that she was born on the suit land in 1982 to the late Jonino Mohamed. PW4 Karekyezi John testified that at the time he settled in the area in 1994, the 1st Appellant's late mother was on the suit land. PW6 Kyogabwirwe Margret testified that she found the late mother of the 1st Appellant when she had already settled on the suit land in 1966.

The above evidence considered together with the earlier evidence of the Appellants of the fact that they given the suit land shows first and foremost that the late mother of the 1st Appellant prior to giving out the suit land around the years 2004 or 2007 had occupied the suit land for a substantial period of time before the coming into force of the 1995 Constitution of Uganda.

She could therefore have satisfied the requirements of being a bona fide occupant on part of LRV 1211 Folio 25 Isingiro Block 2 Plot 12.

[26] Section 29(5) of the Land Act provides that;

"Any person who has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant under this section shall be taken to be a bona fide occupant for purposes of this Act."

The Appellants, who acquired the portion of land which fell within LRV 1211 Folio 25 Isingiro Block 2 Plot 12 from their late mother Munganyika Febronia were, therefore bona fide occupants under Section 29(5) of the Land Act, Cap. 227, Laws of Uganda. (See also Kampala District Land Board and another vs Venansio Babweyaka and Ors (supra) per Odoki CJ (as he was then)).

In the upshot therefore, ground 3 of the instant appeal succeeds, the Appellants are bona fide occupants on the suit land having acquired the said interest from their late mother Munganyika Febronia. Grounds 2, 4 and 6 of the appeal fail.

## Ground 5: The learned Magistrate erred in law and fact when he failed to properly conduct locus proceedings which caused a miscarriage of justice to the Appellants.

[27] On ground 5, counsel for the Appellants submitted that though the trial Magistrate visited locus, the proceedings at locus were irregular as they weren't intended to inspect specific aspects of the case as canvassed during trial. That at the locus in quo, the Appellants were not given opportunity to cross examine the Respondents and the Respondents did not at all show the features in their evidence as submitted in court. That at locus, the court turned itself into a witness as the defence did not produce any locus witness and the observation of court as to boundaries, mark stones and conclusiveness that the suit land falls in the certificate of title at locus was never shown by the Respondents.

In their response, counsel for the Respondents submitted that the proceedings at locus were conducted properly by the trial Magistrate in the presence of all parties and their respective advocates and only witnesses to the case were allowed to testify.

[28] Visit to the locus in quo by the judicial officer is the visual collection of evidence whether or not the evidence is in conformity with the description of the witnesses in court.

The judicial officer must be present to hear and see the witness, step boundaries, or show court the subject matter. Locus in quo visits by court are guided by the procedure and principles for conducting a visit to the locus in quo set out in Practice Direction No. 1 of 2007 and specifically Guideline 3 thereof;

> "During locus visit of land dispute, the court should take interest in visiting the locus in quo, and while there (a)Ensure that all parties, their witnesses and advocates (if any) are present. (b)Allow the parties and their witnesses to adduce evidence at the locus in quo. (c)Allow cross examination by either party, or his/her counsel. (d)Record all proceedings at the locus. (e)Record any observations, view, opinion or conclusion of the court."

In the case of William Mukasa vs Uganda [1964] EA 698, 700 Sir Udo Udoma CJ [as he then was]

> "A view of a locus in quo ought to be, I think, to check on the evidence already given and where necessary and possible, to have such evidence ocularly demonstrated in the same way a court examines a plan or map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view, a judge or magistrate

should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be a substitute for evidence"

In Bongole Geofrey & 4 Ors vs Agnes Nakiwala (Court of Appeal Civil Appeal no. 76 of 2015), the Court of Appeal observed that failure of a judicial officer to record the proceedings during locus in quo is a fatal procedural irregularity amounting to a miscarriage of justice. That the appellate court is empowered to direct a retrial if it is of the opinion that the defect resulted in a failure of justice. The court however cautioned that the power to order a retrial ought to be exercised sparing and with great caution taking into consideration due to the lapse of such a long period of time, it is no longer possible to conduct a fair trial due to loss of evidence, witnesses or such other similar adverse occurrence.

While visit to the locus in quo is not a mandatory requirement, where court deems it deserving and proceeds to the locus in quo, then it ought to be carried out properly since locus in quo visits are meant to test whether the evidence as given at trial is in tandem with what is physically on ground. (See Bongole supra).

[29] I took time to examine the learned trial Magistrate's proceedings at the locus in quo and I must state that the conduct of the proceedings fell below par the standard set by Practice Direction No. 1 of 2007 and case law on the same.

I further observe that the inequities in the mode in which the locus in quo proceedings were handled by the learned trial Magistrate did not in my considered opinion impact on the already admitted evidence by the court during trial which I have assessed herein above.

I will therefore, in the interest of justice not move to the extreme to order a retrial in the matter as no injustice was caused in the process.

#### This ground of appeal therefore succeeds.

[30] Before leaving this matter, counsel for the Respondents raised two preliminary points of law in their submissions which I opted to resolve last in this judgment.

## Serving a memorandum of appeal which was not endorsed by an officer of court.

Counsel for the Respondent submitted that the Appellant's memorandum of appeal was incurably defective for flouting Order 43 rule 1(1) of the Civil Procedure Rules. According to counsel, failure to have the said Memorandum of Appeal endorsed by the deputy Registrar of this court rendered it defective and there was therefore no appeal before this court.

In reply, Counsel for the Appellant conceded that the Memorandum of Appeal was indeed not endorsed by the learned Deputy Registrar of this court but the intention of the drafts person of the Rules was not to lock out of court litigants who were already in court seeking justice. That the signature of the Deputy Registrar would not in any case change the nature of the claim of the Appellants nor cause any injustice.

[31] Order 43 rule 8 of the Civil Procedure Rules provides that;

#### "8. Register of appeals.

Where a memorandum of appeal is lodged, the High Court then shall cause to be endorsed on it the date of presentation, and the appeal shall be entered in a book to be kept for that purpose, to be called the register of appeals." [Emphasis mine]

In the above provision the word "shall" is construed as mandatory. My considered interpretation of the provision is that it is mandatory that once an appeal is lodged in this court, it shall be endorsed with the date of presentation and then entered in a book called the register of appeals. The lodging of an appeal would in my view entail having the Memorandum of Appeal received at the court registry and the receiving officer appending onto it a court receiving stamp showing the date of presentation. Short of this, the document is not properly lodged in the court.

[32] I have perused the record of the instant appeal, the memorandum of appeal on the record has a receiving stamp of this court indicating that it was presented on 20th December 2021. It has no provision for endorsement by the Deputy Registrar of court, therefore it was not endorsed as rightly objected by Counsel for the Respondent.

Unlike specific provisions like Order 5 Rule 1(5), Order 7 rule 9(4) of the Civil Procedure Rules that have a mandatory provision requiring that summons or a plaint as the case may be to be signed by a judicial officer or such officer as they appoint for such purpose and sealed with the seal of court, I have not found anywhere in Order 43 which deals with appeals to this court such an equivalent provision.

This court is not ready to construe such an interpretation into the clear provisions of Order 43 so as to invalidate the Memorandum of Appeal filed by the Appellants.

The objection is therefore overruled.

# Service of a memorandum of appeal outside of time prescribed by the law.

[33] On the second objection, counsel for the Appellant submitted that the Appellants having filed the Memorandum of Appeal on 20th December 2021 ought to have served it within twenty-one days as provided for under Order 5 Rule 2 and 49 Rule 2 of the Civil Procedure Rules. Counsel contended that the Appellants served the Memorandum of Appeal on 29th March 2023 after a year and three months.

In reply, counsel for the Appellants submitted that the Memorandum of Appeal was served onto the Respondents' lawyers on 8th February 2022.

[34] Order 49 rule 2 of the Civil Procedure Rules provides that:

### "2. Orders and notices, how served.

All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons."[Emphasis mine]

The foregoing provision clearly, in my view relates to documents that the Civil Procedure Act or Rules require "to be given to or served on any person". Does the Civil Procedure Act or Rules require a Memorandum of Appeal to be given to or served on any person? I have equally not found any such requirement in both laws.

[35] Counsel for the Respondent drew the attention of this court to a decision of this court in Katsigazi Benon vs Lorna Musanyusa Kamau (High Court Misc. Appn. No. 21 of 2021 wherein this court observed that Order 49 rule 2 of the Civil Procedure Rules by implication applied to a Memorandum of Appeal which had to be served within 21 days following the dictates of Order 5 rule 2 of the Civil Procedure Rules.

Even if I were to consider the said argument, this court is afforded with discretion and inherent powers under Section 98 of the Civil Procedure Act and Article 126 of the Constitution make such orders as may be necessary for the ends of justice to be met and as well administer justice with undue regard to technical Rules.

This court may in deserving cases exercise its discretion to overlook the failure to comply with rules of procedure upon such conditions as it may deem fit to guard against the abuse of its process. (See Nyanzi vs Nasolo ans 2 ors (High Court Misc. Appn. No. 14 of 2021) and Iron and Steel Wares Limited vs C. W. Martyr and Company (1956) 23 E. A. C. A. 175).

### [36] In Kasirye Byaruhanga & Co. Advocates vs U. D. B. Supreme Court Civil Appeal no. 2 of 1997 the court noted that;

"We adopt the same reasoning here and say that a litigant who relies on the provisions of Article 126 (2) (e) must satisfy the court that in the circumstances of the particular case before the court it was not desirable to have undue regard to a relevant technicality. Article 126 (2) (e) is not a magical wand in the hands of defaulting litigants."

Having found no requirement for service of a memorandum of appeal in the Civil Procedure Act and Rules and considering the fact that the instant appeal arose from a land matter with far reaching implications, I found it not desirable to have undue regard to the technicalities in the instant matter.

The objection is therefore overruled.

In the final result, the instant appeal partially succeeds in the terms stated herein above. Considering the fact that there was partial success of the appeal, I find it in the interest of justice for each party to bear their own costs for the appeal.

I so order.

Dated, delivered and signed at Mbarara this 12th day of July 2024.

### Joyce Kavuma Judge