[2025] UGHC 132

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT – 01 – LD – CA – NO. 032 OF 2023**

**(ARISING FROM KIBIITO FPT – 00 – CV – LD – NO. 001 OF 2023)**

1. **BAKIRANA YEREMIAH** 2. **KABUGHO ERINORA** 3. **MBAMBU NAUME** 4. **ITHUNGU NAUME ::::::::::::::::::::::::::::::::::::::: APPELLANTS**

**VERSUS**

**KIIZA WINNIE ::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**BEFORE: HON. JUSTICE VINCENT WAGONA**

**JUDGMENT**

**Introduction*:***

This is an appeal against the judgment of His Worship Alinda Isha, Senior Magistrate Grade One, Fort Portal Chief Magistrate’s Court at Kibiito vide FPT – 00 – CV – LD – 001/2023 delivered on 17th May 2023.

**Background*:***

The appellants filed land civil suit No. 01 of 2023 at the Grade One Court at Kibiito in Bunyangabu District against the Respondent for trespass on land at Rurama Village, Kateebwa Sub County, Bunyangabu District (suit land). The appellants contended that the suit land belonged to their late father Kyahwere who at the time of death left the plaintiffs (now appellants) as his children using the same. That later they distributed the same among themselves and each started to use their portion. In 2022, the defendant trespassed on the same by removing the boundary marks and started to forcefully cultivate the same. They thus asked court to find that the Respondent was a trespasser on the same and to declare them the rightful owners of the suit land.

The defendant (now Respondent) denied the allegations of trespass on the suit land. She contended that the suit land formed part of the estate of her late father Bwambale Stephen who received the same as his share from his father Muhindo Kyahwere at the distribution of the land to his children in 1997. The late Bwambale was in possession of the suit land and passed on in 2004 and left his estate undisturbed. That she later applied for letters of administration over the estate of her late father as the only surviving child which were granted. Later in 2022, the appellants went ahead and shared the land of her late father which prompted her to file a case at police. That the appellants had no claim over the suit land.

**Decision of the trial Court:**

The learned trial Senior Magistrate Grade one after evaluating the evidence on record found that the appellants failed to prove their claim on the balance of probabilities and dismissed their claim with costs. He went ahead and declared that the suit land formed part of the estate of the late Bwambale Stephen where the Respondent was a beneficiary. The appellants being aggrieved lodged this appeal.

**Grounds of Appeal:**

1. **The learned trial Magistrate erred in law and fact when he failed to frame an issue as to who is the rightful owner of the suit land.** 2. **The learned trial Magistrate erred in law and fact when he held that the appellants’ evidence was full of grave inconsistencies.** 3. **The learned trial Magistrate erred in law and fact when he misdirected himself that the construction of a house by the Respondent’s father on the suit land meant he owned the suit land hence arriving at a wrong decision.** 4. **The learned trial Magistrate erred ion law and fact when he held that the suit land was part of the estate of the Respondent’s late father without evidence to support the same.** 5. **The learned trial Magistrate erred in law and fact when he failed to distinguish between the suit land and the land purchased by the Respondent’s late father.** 6. **The learned trial Magistrate erred in law and fact when he held that it was the Respondents who was in occupation of the suit land at the time the suit arose.** 7. **The learned trial Magistrate erred in law and fact when he misdirected himself that constructing a house on the suit land by the Respondent’s father meant ownership of the same and thereby come to a wrong conclusion.** 8. **The learned trial Magistrate erred in law and fact when he failed to consider the fact that the Respondent’s father is not buried on the suit land.** 9. **The learned trial Magistrate erred in law and fact when he generally failed to evaluate the evidence and came to a wrong conclusion.**

**Representation and Hearing:**

The appellants were represented by ***Mr. Sibendire of M/s Sibendire, Tayebwa& Co. Advocates*** while ***Mr. Nyakaana Patrick*** represented the Respondent. I have taken into consideration the written submissions of the parties.

**Duty of this Court:**

As the first appellate court, the duty of this court is to rehear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. ***(See: Father Narsensio Begumisa& 3 others v sEric Tiberaga SCCA 17 OF 2000 [2004] KALR 236)***. The first 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 an appellate court, unlike the trial Magistrate had no chance of seeing and hearing the witnesses while they testified. ***(See: Uganda Breweries v Uganda Railways Corporation 2002 E. A).***

**Consideration of the Appeal:**

Order 43 rule 2 of the CPR states thus: “***The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively***.” The grounds of appeal must challenge a holding, a ratio-decidendi and must specify the points of law which were wrongly decided. (See: ***National Insurance Corpn v Pelican Services, C. A. C. A No. 5 of 2003 cited Sietco v Noble Bulibers (U) Ltd SCCA No. 3 of 1995***). The grounds should be clear as much as possible, precise, concise, and persuasive as much as possible without descending into narrative and argument. (See: ***Kitgum D. L. G &Anor v Ayela, HCCA No. 8 of 2015)***. They should not be unnecessary long, repetitive,or merely replicate or be centered on only one issue or concern in the judgment.

It is observed that in the present memorandum of appeal, some of the grounds of appeal are repetitive. For instance, ground 3 and 7 concern the same issue. I thus strike out ground 7 and maintain ground 3. Further all the other grounds of appeal rotate only to the manner in which the evidence was evaluated. I thus find that all the grounds are repetitive and thus I will consider all of them under one issue being; whether the learned trial Magistrate properly evaluated the evidenced in arriving at a decision to dismiss the appellants’ suit and declare that the suit land formed part of the estate of the late Bwambale and the defendant was a beneficiary under the estate.

**Merits of the Appeal:**

I will first address the issues of departure from pleadings which was raised by Mr. Sibendire for the appellants. In the pleadings (plaint), the case set up by the appellants was that the suit land belonged to their late father Kyahwere who after his death, left the suit land to them and they later shared it. They made no mention of a will and did not attach a copy. However, during trial the appellants gave evidence stating that their father left a will bequeathing his land to the four wives where each child was to share from. The evidence of the appellants was a complete departure from their pleadings. It is the position of the law that parties are bound by their pleadings and a party cannot be allowed to succeeded on a case not set out in his or her pleadings and neither party can be allowed to change the case set up in the pleadings at trial (***Interfreight Forwarders (U) Ltd v East African Development Bank, C. A. C. A No. 33 of 1992)***. I therefore find that the appellants could not rely on the said will or any facts in that direction because such facts were unsupported by the pleadings.

As for the Respondents, in the written statement of defense filed by the Respondent, she pleaded under paragraph 4, that the suit land belonged to her late father, Bwambale Stephen and she was the only surviving child of the late Bwambale. That the late father got the land from his father (grandfather to the Respondent) in 1997 when he distributed the land among his children. That in 2022, she applied for letters of administration over the estate of her late father which were granted on 9th February 2022 and as such the suit land formed part of the estate of her late father. She went ahead and attached a copy of the grant which was admitted as DEX3 and an inventory where she allocated the suit land to herself as the surviving beneficiary and the same was admitted and marked DEX4. The evidence of the Respondent was clearly in accordance with the defense presented. Therefore the Respondent did not depart from the pleadings.

The remaining issue would be whether the decision of the learned trial Magistrate was contrary to the evidence presented.

Primarily, the suit by the appellants was that the land originally belonged to their late father Kyahwere who at the time of death owned the same. That the late Kyahwere passed on leaving the land in the hands of his children (the appellants). That they later divided the same amongst themselves and each took a known share. Later in 2002, the Respondent trespassed on the same. At trial the appellants and their witnesses testified that the late Kyahwere made a will distributing his land to the children. Each child was to share from the share given to their mother. As noted above, this was a complete departure from their pleadings. This is because the will was introduced at trial and was not supported by the pleadings that the appellants filed. A copy of the said will was never presented in court for the Court to have an opportunity to examine the same before relying on the same. Thus the central issue that arises is whether court could rely on such will as evidence in support of the plaintiffs’ case.

The law seems settled that a will is an important document and proof of the same is limited to an attesting witnesses or a person who wrote the same. Further, proof of a will is by way of producing the document itself and not oral testimonies or accounts about the same (See***: Samuel Kabagambe Ntungwa& 3 others v Florence Kekibuga Ntungwa, HCCS No. 0046 of 2021)***. The best evidence rule emphasizes that where a party alleges existence of a document, the best evidence is the document itself **(See: Section 61 of the Evidence Act Cap. 8 of the revised laws of Uganda)**. The exceptions include instances where the original cannot be found, or the person in custody of such document cannot present it without inordinate delay or its intended to be used against him or her and notice to produce the same has been given and fails to comply, where the document in possession of another person who is ordered to present the same and declines or where the original is lost or obliterated beyond recognition and there is evidence to that effect.

Whereas I am alive to **Section 64(1)(e)** of the **Evidence Act Cap. 8** that secondary evidence of a document may be proved by oral accounts of the contents of a document given by some person who has himself or herself seen it, given the legal significance and weight of a will, I believe that exception does not apply to wills. ***(See: Samuel Kabagambe Ntungwa & 3 others v Florence Kekibuga Ntungwa supra).*** A will is a sensitive document affecting property rights. Where a person alleges the existence of a will, proof of the same must be by producing the will itself. The danger of allowing oral testimony to replace the will itself among others is that it is hard for court to ascertain whether the person who seeks to prove the same was indeed a testator and had knowledge of the same and whether the oral accounts represent a true account of the contents of the will.

In the present case, the 1st plaintiff (now appellants) ***Mr. Bakirana Yeremiah*** testified that they got the land through a will read at the burial of his father. ***PW2 (Naume Mbambu)*** added that the will indicated that Yeremiah (1st Appellant) should divide the land. The will was read at burial and was given to Motanjare while at the funeral. ***PW3 (Ithungu Jetu)*** stated in examination in chief that in the will, the land was given to 6 children. In cross examination he stated that the land was given out by the will of his late father. ***PW4 (Ndalghena Isembaya)*** added in chief that his dad made a will. That he kept the will and the same was written by the 1st plaintiff (PW1). In cross examination he stated that in the will, it is indicated that the land was for his late father. Several witnesses testified that the will was read at the funeral. However, no evidence was led by the appellants of the whereabouts of the said will. In the absence of the will, the appellants could not rely on the oral evidence as to the making of the same or the contents thereof. I thus find that the trial court was right to reject the evidence of the appellants in that line.

The follow up question would therefore be, whether in the absence of any evidence as to the will purportedly giving the suit land to the appellants, there was other sufficient evidence to prove the claims of the appellants pleaded in the plaint. In my re-evaluation of all the evidence as a whole, what is evident therefrom, is that the claim by the appellants was hinged on a will which was never presented in court nor proved as required under the Succession Act and the Evidence Act. All the appellants’ witnesses state that the suit land was bequeathed to them through a will but the will was not proved. In the absence of such will, the claim by the appellants remained unsupported. On the other hand, the Respondent gave a clear account of how the land was given to her late father in 1997 and by the time he passed on in 2004, he was in possession of the same and had a house thereon. The evidence of the respondent / defendant and her witnesses was solid and not shaken in cross examination. It was therefore more believable, convincing and reliable as noted by the learned trial magistrate. On the other hand, the evidence of the appellants which was hinged on a will which was not proved in court was of the weakest of the kind. It is thus my finding that the learned trial magistrate properly evaluated the evidence on record before arriving at the decision.

The last aspect raised by Mr. Sibendire for the appellants is about locus in quo proceedings. He argued that the same were irregularly conducted and this occasioned a miscarriage of justice. That the learned trial Magistrate considered the evidence of other witnesses at locus who never testified in court. Mr. Sibendire invited this court to the case of the Registered Trustees of the Archdiocese of ***Tororo v Wesonga Reuben Malaba& 5 others, HCCA No. 096 of 2009 and Acar& 3 others v Alfred Acar (1982) HCB*** and other authorities which I have duly considered.

The law seems to be settled that irregular conduct of locus proceedings is not a ground to set aside a well-reasoned decision of court. The irregularity should be one that goes to the root of the case that no sane judicial officer or court guided by proper reasons and sense could arrive at a proper decision without conducting locus or where the locus proceedings in court’s view are central for court to arrive at a fair and reasoned decision in the circumstances of the case. Therefore, where the evidence on record is sufficient to support a finding by court in that with or without locus in quo or proper conduct of the same would enable Court reach a fair decision, then such an omission or irregularity cannot be used on set aside a regular and well-reasoned decision of Court.

In the present suit, I agree with Mr. Sibendire that at locus in quo, court is not granted the laxity to take evidence from other people who never came to court to testify. This is because, locus proceedings are intended to ensure that a witness who testified in court is given chance to clarify on the evidence given in court with what is on ground. In addition, court cannot premise its decision on evidence obtained from other witness other than those who testified in court and were cross examined. Therefore where court premises its decision on such evidence, then it may be set aside on appeal for being irregular and court may order a retrial in appropriate cases or re-evaluate the evidence and make a finding on the basis of other evidence on record. However, where court takes evidence from other witnesses other than those who testified in court at locus in quo but does not rely on the same or use it as a basis for its decision, then such an irregularity cannot be used as a basis to set aside a regular and well-reasoned decision of court. Further, the Practice Direction No. 1 of 2007 on locus proceedings does emphasize that at locus, either party and their witnesses should be given chance to clarify their testimonies with what is on ground and where need arises, they should be cross examined on their evidence. In the present suit, the plaintiffs/appellants clarified to court the land in dispute while at locus and the witness was cross examined. It is though not clear as to the witnesses who testified at locus. The defendant also testified as locus and was cross examined by the appellants.

The trial court at locus however took the evidence of the chairperson of the village who was never called as a witness by any of the parties and never testified in Court for any of the parties. Court also recorded the evidence of Mbilingi John, Sister to Bakirana, Anaclet Masuma who never testified in court and this was irregular. However in the judgment which is appealed by the appellants, the learned trial Magistrate never relied on their evidence. It was never indeed the basis for the decision. I therefore find such to be an irregularity which does not go to the root of fair hearing to warrant setting aside a well-reasoned decision of the trial Court. Further, court in the final orders declared that the suit land formed part of the estate of the late Bwambale and the defendant was a beneficiary under the estate. I therefore find no merit in the argument by Mr. Sibendire that court did not determine the issue of ownership.

It therefore follows from the above analysis that all the grounds of appeal raised by the appellants fail and thus the entire appeal fails and is hereby dismissed with costs. I so order.

**Dated at Fort Portal this 28th day of February, 2025.**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**