[2002] UGCA 14

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 47 OF 2000

(Appeal against the whole Judgment of the High Court of Uganda at Kampala [Justice I. O. Malinga] given on the 14^th of May 1999 in High Court Civil Suit No. 564 of 1997)

| | <b>REV. FR. NARSENSIO BEGUMISA</b> | | |----------------|------------------------------------|---| | $2.$ | <b>B. TIMBA</b> | | | 3. | D. KIMUNDA | ) | | $\overline{4}$ | E. KAMONDO | |

#### **VERSUS**

**ERIC TIBEBAGA..................................** ......................................

#### HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. CORAM: HON. MR. JUSTICE J. P. BERKO, JA. HON. MR. JUSTICE S. G. ENGWAU, JA.

## **JUDGMENT OF HON. J. P. BERKO:**

The appeal arose from the Judgment of the late Justice Malinga in the High Court Kampala given on 14/5/99 in a High Court Civil Suit No. 564 of 1997. In that suit Erick John Tibebaga, the respondent, had sued Rev. Father Narsensio Begumisa and three others, the appellants, for general damages for trespass, an order of eviction, permanent injunction and costs of the suit.

The respondent's case was that he was the registered proprietor of land measuring 8.0 hectares and comprised in Block 53 Plot 9, situate at Maruka Masya, Kisya, Kirina sub-county, Kinkizi, Rukungiri District. He averred that sometime in 1995 the first defendant/appellant and his agents or servants, without his consent, entered part of his said land measuring 4 acres and constructed a brick house thereon and cultivated part and has since been living on the said land. The second defendant/appellant also in the same year 1995, without his consent, entered part of his land and cultivated an area measuring 5 acres on which he grew various crops and also harvested the respondent's coffee. The third defentlant/appellant similarly in 1995 entered his said land and cultivated an area measuriug 2 acres on which the third delendantiappellant grew various crops without the rcspondent's corrsent. Tlre case against the 4tl' DefendanVappellant was that he also in 1995 trcspasscd on part ol land, cleared and cultivated an area measuring about 3.5 acrcs without his consent. The 4'l' Defendant/appellant has since occupied tlre land and harvcsting crops frorn the land.

o

The casc lbr thc dc fcndants/appellants is that the land in dispute is situated at Karubanda Maruka, Klubwc. Kirirna North, which is different lrom Muruka Masya in Kirinra. rvhich is in South Wcst of Kanungu Trading Centre, behind the Makkiro Catholic yrarish placc rvherc thc rcsponclent owns land. The defendants/appellants however, adnrit that thc rcsllondent owus a 2-acrc piccc of land at Karubanda, which is unsurveyetl atrd arljaccrrt to thc lantl ol'thc 3''l and 4'l' appellants. They avened tlrat the respondent's land at Kanrbantla is on Block 59, which is different frorn Block 53 Plot 9. The appellants contcnd th t cach of them orvns 4, 5, 3 and 3.5 acrcs respectively at Karubanda, which they acc;uircd ovcr 20 ycars ago.

The l'' antl 4'r' appelltrnls contend tlrat they will rely on the judgment in Kirima Grade lI Magistrrtc's coun in Civil Suit No. 99 of '1964. which was upheld on an appeal by thc C'hiel' Magistrate in Kigezi in Civil Appeal No. MKA 130 of 197(r which deternrinctl thc rights of the two appellants in respect of the sanre land which is the subjcct ol'thc prcscnt tlispute for its full lorce and effect.

By rvay of counter-claim, the appellants contend that sometime in June 1997 the respondent brought lhrec clrainmen to the suit land which extends beyond the rcspondent's 2 acrc land and attenrpted to survey it, but the appellants resisted and drove lhem away and clainred dan:ages for lhat trespass.

Thc appcllants also accuscd thc respondent of fraud by deliherately and knorvingll, Lrsing a litlc rvhich has 8 hcctarcs so as to bc able to scek fiaudulcntly a biggcr land tharr hc owns untl dclihcratcly callirrg it Masya instead of Kijubrve and Block ⁵³ instead of Block 59 and thus confirsing the land office to rectify the particulars of the land title.

'l'hc lirllorvirrg issucs rvere agreetl Ltpon lbr cletcrnt ination: -

- (i) Whcthcr thc disputcd land is situatcd at Krjubwc and or at Masya. - (ii) Whether the ccrtificate of title, Annexture A, to the plaint relates to the clisputed land; - (iii) \Vhcthcl lhc tlisputcd lantl has title tntl il'so \\'hat titlcl - (i\,) Whsther thc appellants trespassed on thc respondent's land - (\ ) Wlrether lhc 4'r' appellant litigatcd with the respondent in respect of the land in dispute in Kirima Magistrate's Court Civil Suit No. 99 of 1964 and Kabalc Magistrate's Court Civil Appeal No. MKA I 30 of 1976. - (r'i) Whcthcr thc rcspontlcnt trcspassctl on the appcllants' land - ( vii) Danrages. il any

a

In a s cll corrsitlerctl .judgmcnl thc leanretl trial judge lound: -

- (r) that thc land in dispute is norv situate at Kijubwe parish and not at Masya Parish lbllorvrng thc sub-division of Masya parish into the parishes; - (Il) that thc cerlificatc of title Exh Pl relate to the larrd now situated at Kijubwe parish antl the certificate of title is Kinkizi Block 53 Plot 9; - (iii) that the appellants had trespassed on lhe respondent's land;

- o (r\) that the subJect matter of the dispute irr the earlier Civil Suit between the4th appellant and the respondent is not the same as in the present suit trrd therefore the plea ofresjudicata failed; - (\ ) that lhere rvas no evidence that the respondent trespassed on the land bclonging to the appellants and - (vi) 'l'hc allegation ol'lrtuti was not provcd

Thc Judge accordingly entered judgment in favour of the respondent. He granted hinr an eviction order. pennanent injunction and awarded him Shs.l6 million as general tlanrages with intcrest at the courts rate and costs ofthe suit. He dismissed the counterclainr rvith costs to thc respondcnt.

The appellarrts rvere aggrieved with the judgment and appealed to this court. After the High Court judgment, tlre appellants, led by the t'1 Appellant, made a complaint to the Policc tlrat the respondent had used or was in possession of a forged certificate ol title of thc suit properly. Thc nratter was apparently investigated by the Policc. The appellants also obtained a report lrom the Lands and Surveys Departmeut, Rukungiri to the el'fccl that lhc suit land had uot been survcyed and was not registered. On the strength of thc above rcporl lhc DPP advised that the respondcnts should be prosecuted.

The appcllants contended that these new facts were not available to them during the hcaring in the High Court, which resulted in judgrnent in favour of the respondent. Thcy conscquently sr.rccesslirlly applied to this couIt under rule 29 (c) 6, (2), (3) and (4) ol-thc Rulcs of this Court to bc granted leave to adduce additional evidence by putting in cvidcnce the Rcport lionr Rukungiri Lands and Surveys Departrnent and a lettcr from the DPP's ofllcc during the lrcarir:g ofthe appeal. This courl ordered the additional evidence to bc laken by a Conrrrissioncr who could visit thc locns-in-quo and directed that the additional cviclcnce n.lr.rst relate to the surveyors' repoft frorn Rukungiri Lands and

Surveys Department clated 7'r' June 2000. By consent of both parties Mr. Lawrence Gidudu, Registrar of the High Cou(, rvas appointed the Commissioner to record the additional evidence.

a

The Conrnrissioner canied out his assignrnent by recording evidence from four rvitncsscs. He also visitcd the locus-in-quo at Kanungu and obtained a nunrber of exhibits. The recortled evidence and exhibits were submitted to this court. Thereafter a Supplerncnt Record of Appcal embodying the evidence recorded by the Con.rmissioner and thc cxhibits was prepared.

Thc burden of Mr. Batrigumira's argument, lcamed counsel for the appellants was based on the lindings ol the Commissioner wlro rvas appointed to record the additional cviclencc. His argunrent was that the leanred trial judge's holding in favour of thc respondcnt rvas lrased on his finding ol lact: -

- (a) that the land in dispute is situated at Kijubwe parish and not at Masya parishi - (l) ) that thc land had been surveyed and has land title, narnely Kinkizi Block 53 Plot 9; - (c) that the appellants had trespassecl on tlre suit land;

(rl) that the land which rvas the subject mattcr of an earlicr suit belween the responr.lent and thc 4'l' appellant is tlifferent fror.r.r the suit land and

(c) that tl.re respondent had not trespassed on the appellants' larrd.

Ilc contcndctl that thc learned trial judge was mislcd in making the above findings bccause hc did not visrt the locus-in-quo. Had he done that he rvould have found tlrat thc rcspontlents sLrrveyetl land and in respect of rvhich he has a certificate ol title is at Masya and it is Block 53 Plot 9. This land is diflerent frorrr the land in dispute, which is a1 Kijubrvc parish in Kirirna sub-county. This land is not surveyed and has no trark stones. That rvas thc l.inding o1'the Conrnrissioner who recordctl the additional evidence. On the strength ol'the Commissioncr's lindings, Mr. Babigumira has invited this court to reverse the tlecision of the leanred trialjudge and find in favour of tlre appcllants.

o

With regard to the appellants' counter-claim Mr. Babigunrira stated that the respondent only attempted to survey the land but was chased away. Consequently the appellants are only entitled to nominal damages.

Tirc lindings ol'the Conrnrissioner were based on the evidence recorded from four rvitnesses antl a visit to the locus-in-quo. The first witrress was Nyakikuru Stanley, ^a surveyor ol'Rukungiri Lands and Sun,eys Department on whosc report this court grantcd the appcllanls leave to adduce additiortal evidencc in this appeal. He told thc Conrnrissioner thal hc was assigrred by his boss Mr. Caleb Mwesigwa, the Senior Staff Survcyor olthe Rukuugiri Lands atrd Surveys Departnrenl to go to Kinkizi with CID nren to eslablish a cedain land tl.rat was in disp e. He was told that larrd was Block 53 Plot ⁹ situatcd at Masya Parish Kirinra sub-county, Kinkizi county. His ruission was to find out il'Plot 9 Block 53 lalls in eitl.rer Masya or Kijubwe side.

To carry out his assignmcnt, he obtained two Blue Prints, as he did not have title ccdilicatc of Block 53 Plot 9. He went to Block 53 Plot 9 and with the assistance of neiglrbours hc surveyed and opened up lhe boundaries of Block 53 Plot 9 and confirmed thal it was indeed Block 53 Plot 9. He then askcd who was the owner olthe land and was told that it bclonged to the latc Rusharagate and was now under the owrrership of his three solrs, onc ofwhom was present. What appears rather strange was that he could not tcll the villagc wherc the said land was situated cveu though, according to hirn, ncighbours were present, including one of tlre current owners ofthc land.

He thcn movctl to Kilubrve parislr. which was said to be about 3kms away. Hc hacl in possession a Blue Print olKijubwe. He askcd lor any surveyed land in the area so that hc coultl locate the disputed lantl. He got the land title ofone Kategyera whose land is Block 59 Plot 28 and conrpared it with his Blue Print and found it conrpared well with his Bluc Print. Mr. Kategyera showcd hinr some ntark stones. He then opened up the boundaries of Plot 29 Block 59. He tlren confinned that the disputed land is near Kategyera's lancl. From the above he concluded that the land comprised in title Block 53 Plot 9 is not the land under dispute in court, but the disputed land is orr Block 59 in Kijubwc, which has no plot nurnber because it had not been surveyed.

o

Accordrng to this rvitncss the alleged disputed land rvas shown to hinr by thc appellants. Iu cross-examination he admilted that the respondenl was not present because hc rvas not int,itcd. Hc furlhcr admittcd that hc did not have the rcspondent's land title or thc Bluc Print rvith hinr rvhcn he allegedly opcned-Lrp thc boundaries. Hc agarn admiltcd that Block 53 Plot 9 rvas irr thc nanres of the rcspondent and hc is still the rcgistered ()\\ llcf

ln nry vierv, thc evidcnce of Mr. Nyakikura Stanley, PWl, rvhich is the bed-rock ol the appellants' case, deserves no credit as it was oblained iu fragrant breach of thc principlcs of natural .justice and the leamed Conrmissioner ought not lrave attached any importancc to it. I respcctivcly agree with the subnrission of Mr. Makeera on the point.

'fhc sccond rvitness rvas Mwebaze Michael (PW2). He was one ol the CID olficers askccl to investigale a conrplaint lodged against tlre respondent by Rev. Father Begunrisa, thc l" Appcllant, that he had labricated evidence in the High Court Civil Suit which is the subicct oltlie present appeal. He acconrpanied PWI to the larrd where PWI movecl around the boundaries of Plot 9 Block 53 and opened the boundaries and was toltl hy PWI that Plot 9 Bloc 53 was situated at Nyarungwe, Bwanja, Masya, Kirima, Kinkizi. l'lc suid hc was told that the respoudent had nevcr owned land in the arca. He also said

that i1 was Rcv. Fathcr Beguntisa who told hinr that thc disputed lantl was at Karubantla, KijLrbrvc. Kirinra. Kinkizi, u hich rvas aboul 2 3 Kilometrcs lronr Plot 9 Block 53.

o

t.ikc PWI, PW2 ncvcr met the rcspondent during his investigation and did not collcct statcrlrent llonr hinr. Even though he saitl that he did not knorv where the disputed lantl rras. nsvcfihcless. hc confimrcd that the tlisputcd land rvas rvhat the first appellant hatl shorvn to hinr. In nry view such a one sidctl investigation should not carry any wci\_r.tht with any court of law and oughl to have been rejected by tl.re Conmissioner with thc conlenrpl it dcscrved.

The third rvitness orr rvhose evidence lhe Conrnrissiorrer relied upon was one Caleb Mwesigwa. thc current olficcr in charge ol land nratters in Rukungiri and the one who scnt PW I to go on site with CID officers to investigate lhe allegation made against the respondent. Hc said he has tlre original of the land title of the land at Kigezi District Block 53 Plot 9 rrreasuring 8 hectares siluate al Masya in the names of Eric Johu Tibebaga, the respondent. This land title was issued to the respondent in the 1970's and soon alicr it was issued, the lar:d olfice discovered that an error had been committed. The allegetl crror being that the land described in the title did not tally with the respondent's land. The assistant registrar of titlcs rcquested the respondent to retum the title but he rc lirsecl.

lf inclecd an error was detected as lar back as the 1970's, then it is strange that no action rvas taken beyond thc mere lctter asking tlre respondenl to retum the title. According to lhe evicleuce of this witncss the original land title issued to the respondent by thc lancl ol'fice is still at thc land olficc and has ncver been cancelled. Ilthat is the ttuth of the nratter, tlren how can the respondent be accused of forging a land title'? In nry view thc clainr by the Larrds and Surveys Department that the land title was issued in en'or ciurnot be truc.

This clearly lentls support to lhe respondent's conspiracy theory that the ilppcllants conspircd to tnke the land from hinr. At the locus in quo the responderrt lried to show the Commissioner a print where he claimed a mark-stone had been removed, but the learned Commissioner was not prepared to listen to him. Instead the Commissioner preferred the evidence of PW1 and PW3, which I have found to be unreliable.

$\sim$ 1.

The evidence of Mr. Yusuf Kagumire, who was once the Chief Registrar of titles, shows that before the issuance of the land title Block 53 Plot 9 all the legal procedures were undertaken and on the face of the title it looked valid. He said one needed further evidence to determine whether it was valid or not. Strangely, that further evidence was not available and I am not prepared to invalidate the title of the respondent on a report, which I have found to be biased, and a self serving peace of evidence. In my view the report prepared by the Rukungiri Lands and Surveys Department was part and parcel of the conspiracy to take the respondent's land by the appellants and cannot be used to vary the judgment of the learned trial judge, which is amply supported by the evidence adduced at the trial.

With regard to the appellants' counter-claim, I agree with Mr. Makeera that the Judge was right to dismiss it, as it was not proved. The appellants claimed that they acquired their respective lands 20 years ago, but they never disclosed how then they acquired them and the nature of their titles.

In the result I find no merit in the appeal. It is dismissed with costs in favour of the respondent.

Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated this $\frac{1}{\sqrt{2}}$ Dated

$J. P. Berko$ **Justice of Appeal.**

## THE REPUBLIC OF UGANDA IN THE COURT OFAPPEAL OF UGANDA **AT KAMPALA**

## **CORAM:** HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE J. P. BERKO, JA. HON. JUSTICE S. G. ENGWAU, JA.

## CIVIL APPEAL NO.47 OF 2000

| 1. | <b>REV. FR. NARSENSIO BEGUMISA)</b> | | |----|-------------------------------------|---------------------------| | | <b>B. TIMBA</b> | | | 3. | D. KIMUNDA | <b>):::::: APPELLANTS</b> | | 4. | E. KAMONDO | |

$4.$ **E. KAMONDO**

### **VERSUS**

ERIC TIBEBAGA :::::::::::::::::::::::::::::: RESPONDENT

(Arising out of Civil Appeal No.47 of 2000)

(Appeal against the whole Judgment of the High Court of Uganda at Kampala [Justice I. O. Malinga] given on the 14^th of May 1999 in High Court Civil Suit No.564 of 1997).

# JUDGMENT OF A. E. N. MPAGI-BAHIGEINE, JA.

I have read in draft the judgment of Berko, J. A.

I entirely agree that the appeal should be dismissed and have nothing to add.

As Engwau, JA also agrees, it is accordingly dismissed with costs.

$\mathcal{U}$ day of ... July.....2002 Dated at Kampala this.

> A. E. N. MPAGI-BAHIGEINE JUSTICE OF APPEAL