[2000] UGCA 43

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

# COR{M: HON. C.]!I. KATO, J. A. HON. G. M. OKELLO, J. A. HON. C. N. B. KITLIMBA, J. A.

## CIVIL APPEAL NO.4 OF 2OOO

### BET\l'EEN

## KEZI A ISINGOMA & ANOTHER: : : : : : : : : : : : : : : : : : : : : : :APPELLANTS

### .{ND

### PETER ASSIMWE AND 4 OTHERS:: : :: :: : : : : : :: :: ::RESPONDENTS

(Appeol from lhe appellae judgment and orders ofthe High (bun (Tahoro J.) dated 23/8/94 at Fort Portal in Civil Appeal No. DR5 r{ ¹⁹⁹³from originul Civil Suit No. MFP88 of l99l)

### JTIDGMENT OF G. NI. OKELLO J. A.

This is a second appeal It is liom the appellate ludgment and orders of the High Court (Tabaro J.) dated 23/8/94 at Fort Portal in Civil Appeal No. DR 5 of I993 arising from original Civil Suit No. MFP 88 of I991

The case arose from a land dispute. Sometimes rn 1972, the fathers of some of the respondents applied.yointly with others for approximately 777 hectares of land situated at Kinoni, Kvaka in Toro (Kabarole) District. Their application was successful and they were given a lease offer on 27/41'75 Thev accepted the offer and a survey ofthe land was carried out in 198L Markstones were also planted. While the title deed to the land was being processed, the appellants went and occupied part of the land

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and destroyed some of the developments made thereon by the respondents.

Subsequently they (appellants) applied on l3l12188 for a piece of land situated at Weyanlale Mpara, Kyaka Toro in Kabarole District. At the time of the inspection by members of the District Land Board and the Local Council officials of the area, one of the respondents complained that part of the land being inspected was theirs. He was given two weeks to produce proof of their ownership of the land. Before the two weeks had expired, the Board recommended that the land be leased to the appellants. Indeed a lease offer was given to the appellants on l913/90. They accepted the offer.

However, when their surveyors went to survey the land, they were attacked and threatened by the respondents who complained that part of the land being surveyed was theirs. The appellants reported the matter to police and some of the respondents were arrested and detained. Eventually the appellant's survey work was completed.

Subsequently, the respondents instituted this sutt in the Chief Magistrate's Court at Fort Portal seeking a declaration that the land applied for by the appellants belong to the respondents. They prayed for among other reliefs, eviction order against the appellants from the land. The respondents lost the suit and they appealed to the High Court. The High Court allowed the appeal, set aside the judgment and orders of the trial Magistrate Grade I and entered judgment for the respondents. That reversal prompted this appeal.

There are four grounds ofappeal, namely:-

- (a) the learned appellate1udge erred in law and fact in his re-evaluation of evidence and hence came to wrong conclusions, - (b) the learned appellate Judge ened in law and fact when he found and held that the respondents and others were applicants ofthe 777 hectares, - (c) the learned appellate Judge erred in law and fact when he held that the respondents did not need Letters of Administration/Probate to pursue their claim, and - (d) the learned appellate Judge erred in law and fact when he interfered with the learned trial Magistrate's findings at the locus in quo.

At the hearing, grounds (a) and (b) were argued together. Ground (c) was argued alone. Ground (d) was abandoned. I shall consider them in that order too.

# Grounds (a) and (b):

The complaint on these grounds is that the appellate Judge was wrong to find that the respondents were the applicants for the 777 hectares of land, hereinafter referred to as the suit land, when there was no evidence to support that finding According to Mr. Kabega, learned counsel for the appellants, David Murwani, (PWl) testified that it was their father. one Charles Rwakatamba, who jointll- with others applied for the suit land. Learned counsel argued that though John Katambale, third respondent, testified that he together with others applied for the suit land, his name

does not appear on the application form Exh. Pl It was his contention that ltom the above evidence, the appellate Judge was notjustified to find that the respondents were the applicants for the suit land.

On the other hand, Mr. Ruhindi leamed counsel for the respondents, contended firstly that whether or not the respondents were the applicants for the suit land was not an issue before the lower court. Secondly, that the appellate Judge was .yustified to make the finding he did as there is evidence to support it.

The record of the proceedings before the trial court reveals that the first lssue was.-

# "whether the plaintiffs applied for the land to the Uganda Land Board."

It must be remembered that the plarntiffs at the trial are now the respondents before us.

On appeal to the High Court, the record of the proceedings shows that the question whether the plaintiffs (respondents) applied for the land was canvassed in ground 2 where it was argued that they applied \*jointly with their fathers." From these records of the proceedings, it is clear to me that the question whether the respondents applied for the land featured before both lower courts. It is therefore not true, as submitted by Mr Ruhindi, that the point was not an issue before the lower courts.

What this Court as a second appellate court is concerned with as a matter of law is, whether there was sufficient reason for the appellate Judge's finding

According to David Murwani (PWl ) it was their father, Charles Rwakatamba who together with John Katumbara, Peter Asiimwe, Benon Rushondo, Stephen Nyamukaikuru and Edith Kirabo applied for the land. This evidence was supported by the testimonies of John Katambala (PW2) and Peter Asiimwe (PW3) Katambala testified that he applied for the land after his father died in 1973 Peter Asiimwe explained that though he also applied for the land, his name does not appear on the application form due to lack of space. Indeed, the application form Exh. Pl shows only three names of applicants namely, Charles Rwakatamba, Stephen Nyamukaikuru and John Kenginya. Benon Rushondo (PW4), the second respondent admitted that he did not apply for the land. His admission in cross examination went as follows:-

# "It was my father who applied with six others. After my father died, I did not apply.

The evidence of this witness shows that he derived his interest from his deceased father since he did not himself apply for the land. His evidence as to the number of the applicants for the land is supported by the corresponding Lease Offer Exh. P.2 which shows the offerees as Charles Rwakatamba and 5 others The unnamed five others are likely from the available evidence to be.

# Stephen Nyamukaikuru, John Katambara, Peter Asiimwe, Edith Keriabo and John Kenginya (deceased).

f

Mr Kabega argued that the respondents whose names do not appear on the application form are not applicants. I do not agree The explanation of Peter Asiimwe that his name does not appear on the application form because of lack of space in that form is plausible On top of that, the corresponding Lease offer form Exh P.2 also does not contain the full list of the names of the offerees. It merely mentioned Rwakatamba and ⁵ others vet the application form shows onlv three applicants. The only reasonable inference that can be drawn from this is that there must have been more than three applicants. As their application was successful, the number of the applicants must have been six to whom the land was offered in Exh. P2

Learned counsel further argued that though the name of the fourth respondent, Stephen Nyamukaikuru, appeared on the application form, he did not give evidence on his behalf and that therefore his claim should have failed. I find this argument untenable. The evidence on record shows that the respondents applied for the land lointly and there is ample el'idence of encroachment onto the land b1' the appellants.

The evidence ofthe fourth respondent would not have altered the position ofthe respondents' case. It would have been a mere repetition of what is already before the court The absence ofthe fourth respondent's evidence did not affect his claim since there is evidence to support it.

ln mv view, there was sufficient reason for the appellate..yudge to find, save for the second respondent, Benon Rushondo, that the rest of the respondents were applicants for the suit land These grounds therefore would fail, save in respect of the second respondent.

In view of my holding on the above gounds. Ground O would also fail save in respect of the second respondent, Benon Roshondo, who by his own evidence is claiming through his deceased father He needs Letters of Administration of the Estate of his deceased father before he can have anv sav in the affairs of his deceased father See Mohamed Allibhai Vs llt. E. Bukenva Mukasa and Another, SC Civil Aooeal No. 56 of ¹⁹⁹⁵ (unreoorled).

In the result, I would allow the appeal in part. Appeal against the first, third, fourth and fifth respondents is dismissed with costs in their favour Appeal against the second respondent, Benon Bushondo is allowed with costs to the appellants

Dated at Kampala this t?l^ day of ^agEfu rooo

G M OKELLO. JLISTICE OF APPEAL.

I

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 4 OF 2OOO

CORAM: HON. MR. JUSTICE C. M. KATO, JA. HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

1 2 KEZIA ISINGOMA MARTHA KAMUKAMA I I APPELLANTS

#### VERSUS

| 1 | PETER ASIIMWE | I | |----|----------------------|------------------| | 2. | BENONI RUSHONDO | I | | 3. | JOHN KATUMBALE | RESPONDENTS<br>t | | 4. | STEPHEN NYAMUKAIKURU | I | | 5 | EDISA KIRABO | I |

(Appeal from the judgment and orders of the High Court (Tabaro, J.) dated 2318/94 at Fort portal in c.s. No. MFP 88/91)

#### JUDGMENT OF C. N. B. KITUMBA, J. A.

I have had the advantage of reading the judgment of Okello, J. A. in draft. ^I agree with it and the orders suggested therein and have nothing useful to add.

-{}t^ ^ h t. Dated at Kampata tnr. . .... J. /.......... day d L;qktb?,.l ........ ......2000.

> C/-i-S ti".-l\* C. N. B. Kitumba

Justice of Appeal.'

### THE REPUBLIC OF UGANDA

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

# CML APPEAL NO.,l OF ²⁰⁰⁰

# I. KEZIAISINGOMA I::::::::::::::::::APPELLANTS 2. N{ARTHA KAMTTKANIA ^I

### VERSUS

#### I. PETER ASIIMWE 2. BENONI RUSHONDO 3. JOHN KATUMBALE 4. STEPHEN NYAMUKAIKURU RESPONDENTS

5. EDISA KIRABO

(Appeal from the judgment and orders of the High Court (Tabaro, J.) dated 2318194 at Fort Portal in C. S. No. MFP88/91)

CORAM: HON. JUSTICE C. M. KATO, JA. HON. JUSTICE G. M. OKELLO, JA. HON. JUSTICE C. N. B. KITUMBA, JA

### JT]DGMENT OF C. M. KATO, J. A

I have had the advantage of reading the judgrnent of Okello, J. A. in draft. I agree with it and orders suggested by him. The appellate judge was correct when he found that the present respondents were lawful owners of the land in dispute. He only faulted in the case of Benoni Rushondo who did not have letters of administration to administer the estate of his late father. The other respondents were entitled to litigate in this matter in their own right as the evidence shows that they actually applied for the land. There was no need for them to apply for letters of adrninistration as appellant's counsel argued.

I