[2025] UGHC 204

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 05 OF 2024. (Arising from the Chief Magistrate's Court of Rakai at Kakuuto Civil Suit No. 152 of 2020) KAKOOZA JOHN:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

### **VERSUS**

**MAYANJA JOSEPH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

### **JUDGMENT**

#### **Introduction.**

1. This is an appeal in which the Appellant being dissatisfied with the Judgment and orders of His Worship Muinda Tadeo, Senior Magistrate Grade One at the Chief Magistrates Court of Chief Magistrate's Court of Rakai at Kakuuto Civil Suit No. 152 of 2020, brought this appeal seeking orders that the appeal be allowed, the Judgment, decree and orders of the lower Court be set aside and the costs of the appeal be provided for.

### **Brief Background to the Appeal.**

- 2. The background as per the lower Court is that the Appellant /Plaintiff instituted Civil Suit No. 152/2020 against the Respondent /Defendant seeking for a declaration that the suit Kibanja situate at Koza village in Kakuuto sub county in Kyotera District belongs to the Plaintiff, a declaration that the Defendant is a trespasser, general damages, permanent injunction and costs of the suit. - 3. The Appellant /Plaintiff alleged that he occupied the suit Kibanja during Amin's regime in the 1970s; that the Defendant came to suit Kibanja in 2002 as an employee of the Plaintiff who used to work his garden as casual labourer. That in 2012 April the Plaintiff was robbed and injured seriously in his head and he was taken to Mulago Hospital for medical treatment. That he came back in 2012 but the sickness took him 2 years to regain his senses. That in 2017 he realised that the Defendant had sold part of his Kibanja to other people and the Defendant was sued in Rakai Court. - 4. On the other hand, the Respondent/Defendant averred and contended that the Kibanja was formerly on public land where he occupied in 1984 which was three acres

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it was adjacent to land allocated to Mutukula prison. That in 1997 Mutukula prison raised a complaint against the Plaintiff, Defendant and John Kamuhangire to Chairperson LCV Rakai District who confirmed the settlement of them. That the Local Council one of Koza village also confirmed that the Defendant is the owner of the suit Kibanja and it belongs to the Defendant.

5. The Trial Magistrate Court found in favour of the Respondent/Defendant. The Appellant being dissatisfied with the said Judgment delivered on the 21st December 2022 filed this appeal.

# **The Grounds of Appeal.**

- 6. The Appellant raised two (2) grounds of appeal in his Memorandum of Appeal namely that: - *1. The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole thereby occasioning a miscarriage of justice to the Appellant.* - *2. The Learned Trial Magistrate erred in law and fact when he held that the suit Kibanja belongs to the Defendant.*

## **Representation and hearing.**

7. The Appellant was represented by M/s Mbabaali Jude & Co. Advocates while the Respondent was self-represented. The appeal was heard by way of written submissions and both parties filed written submissions that have been considered.

## **Duty of the first appellate Court.**

- 8. The duty of a first Appellate Court is to scrutinise and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).* - 9. Ground 1 of Appeal is too general as it is framed as follows;

*The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole thereby occasioning a miscarriage of justice to the Appellant.*

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- 10. *Order 43 rule 1(2) of the Civil Procedure Rules* provides that the "Memorandum of appeal 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". It is thus an established position of the law that a ground of appeal must specify in what way and what specific aspect of the decision being appealed against was wrongly decided by the Trial Court. In *Ronchobhai Shivabhai Patel Ltd vs Henry Wambuga & Another, SCCA No. 06 of 2017*, the ground of appeal was worded as "the learned Justices of the Court of Appeal erred in law and in fact when they failed to evaluate evidence on record and they arrived at a wrong conclusion". *Mugamba JSC* held that "this ground is too general and does not specify in what way and in which specific areas the learned Justices of Appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learned Justices of Appeal." The Court thus struck out the ground as being offensive to the rule 82(1) of the Judicature (Supreme Court) Rules which is in *pari materia* with rule 1(2) of Order 43 of the Civil Procedure Rules. - 11. In this case, ground 1 of appeal almost bears the same defect. It does not disclose in which way the Trial Court did not evaluate the evidence on record and which specific evidence. Ground 1 is too general and does not point to a particular wrong in the decision of the Trial Court and does not raise any legitimate complaint in light of the decision of the Trial Magistrate. In the circumstances, ground 1 of the appeal is struck out for being offensive to the applicable law of appeals, but only ground 2 stands and shall be resolved.

### **Determinations of the Appeal.**

### **Ground 2.**

# *The Learned Trial Magistrate erred in law and fact when he held that the suit Kibanja belongs to the Defendant.*

12. Counsel for the Appellant submitted that the Trial Magistrate gave undue weight to the evidence on record when he failed to evaluate evidence of the Appellant on record but rather concluding with only the Respondent's evidence. That the suit subject to this appeal was based on ownership and trespass over the Kibanja. That what is in dispute is the ownership, possession and trespass of and on the suit Kibanja which led to formulation of the issues for determination by the Trial Court. That the Appellant in his evidence knows the size of the suit Kibanja and the same is not disputed by any other party including the Respondent and his witnesses. That PW1 the Appellant mentioned the neighbours to the suit Kibanja and the Respondent mentioned the same names which is proof that indeed the Appellant knows the boundaries of the suit Kibanja which evidence was ignored by the Trial Magistrate. They are the same boundaries confirmed by the neighbour PW4.

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- 13. Counsel further submitted that the Trial Magistrate ignored the fact that the Respondent was brought on the suit Kibanja by the Appellant as a worker and was formally staying with a one Nakachwa, this is corroborated by the evidence of PW1, PW2 and DW4 when cross-examined. That the Appellant occupied the suit Kibanja in 1970 whereas the Respondent came unto the suit Kibanja in 1997 and the same is not in dispute. That the evidence was either ignored or neglected by the Trial Magistrate which was not in dispute during proceedings, that therefore the Appellant proved that he owns the suit Kibanja which he actually owned under constructive possession and the Respondent was a trespasser on the same. That the Trial Magistrate misdirected himself when she failed to completely evaluate the evidence as a whole on record and failure to consider the fact that the Appellant was constructively in occupation of the suit Kibanja hence reaching to a wrong decision. - 14. The Respondent submitted at the time of the incident of robbery in 2012 the Appellant had lived in this Kibanja (Customary Tenure) since year 1994 while the Respondent had lived there since year 1984 and allocated in year 1997 thus some twenty-eight (28) years past only to be disturbed in year 2017 by the Appellant. That prior to the suit at Masaka Court and Kakuuto Court, the Appellant sued at Koza Village Local Council Court and this Koza Village Court confirmed that really the subject matter belonged to the Respondent. - 15. That the Respondent came and settled on this Kibanja (Customary Tenure) since the year 1984 with authority by the Ten Houses (Mayumba Kumi) in that era after the inception of the Land Reform Decree 1975. That by the time the Rakai Local District Administration and Uganda Human Rights Commission, allocated him this acreage in the year 1997, the Respondent had stayed there for thirteen (13) years and with Land Act 1998 inception, makes it fourteen years hence making the Respondent a rightful occupant as an allocatee and/or as a bonafide occupant. That the Appellant is not at all the rightful owner in any manner. That the Appellant came in this Village in year 1994 so to sue in year 2017 or year 2022 is time barred as it totals to twentythree (23) years or twenty-eight (28) years respectively.

### *Analysis.*

16. I have read the record of the lower Court, the judgment, pleadings, and submissions by the parties to this appeal. I have also read the authorities cited and relied upon by the parties. This Court is required under Section 80 of the Civil Procedure Act Cap 71 scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. See: *F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006* (supra).

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- 17. I shall therefore proceed to re appraise the evidence and come to my own conclusion as required by law. In so doing, I am of the view that although the Memorandum of Appeal sets forth 2 grounds, they actually relate to the following two questions a determination of which will dispose off this appeal: - *1. Who is the rightful owner of the suit Kibanja?* - *2. What remedies are available to the parties?* - 18. Court shall proceed to answer the above questions in turn. 1. *Who is the rightful owner of the suit Kibanja***?** The Appellant and the Respondent all lay claim to the suit property. The Appellant claims that he occupied the suit Kibanja during Amin's regime in 1970s the Defendant come to the suit Kibanja in 2002 as an employee of the Plaintiff who used to work in his garden as casual labourer. In 2012 April the Plaintiff was robbed and injured seriously in his head he was taken to Mulago Hospital for medical treatment. He come back in 2012 but the sickness took him 2 years to regain his senses. In 2017 he realised that the Defendant had sold part of his Kibanja to other people and the Defendant was sued in Rakai Court. In evidence at trial, the Appellant as PW1, testified that he got the suit Kibanja in 1975 when Mayumba kumi allowed him to use it and it was three acres. That he knew the Respondent in 1971 and in 1980, he was a worker of Namakwa. That in 2010, the Respondent went to work for him as a causal labourer on the suit Kibanja, and that in 2012 April the Appellant was attacked and went to Kampala that is when the Respondent begun to sell his Kibanja to Tamale, Kalooli and others. He relied on PEX1 which is the letter given to him in 1999 by the then Rakai District Chairperson forwarding him to Kampala showing that the suit Kibanja did not belong to Uganda Prisons. - 19. On the other hand, the Respondent testified at trial as DW1 that he got the suit Kibanja from Mayumbakumi, Mr. Ssemakula Falasiko, and his neighbours were Muwereza, Mutabazi, Road to Kyasimbi, and that the Appellant came in 1997, and his Kibanja was not neighbouring him. DW1 presented DEX1 which was a document when the Prison OC Mutukula sued him, the Appellant and John and Kamwenge, and also DEX2, which was the letter from the LC of Koza confirming that the Respondent was the rightful owner of the suit Kibanja. - 20. On page 4-5 of the Judgment, the Trial Magistrate stated that:

*"I find the evidence of the Defendant coming on suit Kibanja in 2010 as Counsel for the Plaintiff not to be satisfactorily because there was document written by the chairperson Rakai to the OC prison of Mutukula on the 22nd day of September 1997 and is admitted as exhibit marked Dexh1 which was not objected too by Plaintiff and his counsel, it mentions Plaintiff, Defendant and one John Kamuhangire as complainant and had settled on the land. D.exh2 which was not objected too by the Plaintiff the local council chairperson was confirming that the Defendant has been on suit Kibanja for over 23 yeas. The plaint stated that the Defendant went on the suit Kibanja in 2002 which is which. Therefore, 23 year simple mathematic it does not mean that the Defendant occupied in 2010.*

*This seem to me that, that was evidence of proof of ownership by the Defendant which is contrary to submission of counsel that throughout the Defendant's case hearing he never at any point availed Court with proof of ownership of the said suit Kibanja.………*

*More glaring contradiction are; in plaint he said that he acquired the suit Kibanja in 1970, in examination in chief told Court that it was in 1975. Other contradiction in plaint he said that the Defendant come on the suit Kibanja in 2002 while as in Court he told Court that he was allowed to occupy in 2010.*

*In my opinion his changes in his testimony necessitated amendment as it is mandatory under Order 6 rule 6 and 7 of the Civil Procedure Rules. Indeed the supreme Court in the case of Interfreight Forwarders (U) Limited Vs East African Development Bank, Supreme Court Civil Appeal No. 33 Of 1992,*

*"observed and held inter alia that, The system of pleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties...."*

*In my opinion these are grave inconsistencies and contradictions the Plaintiff did not explain them I will resolve them in favour of the Defendant.*

*In the case of Wagman v. Bradshaw, 292 AD2d 84, 85, 739 N. Y. S. 2d 421,it was held interalia that the admissibility of evidence had to be based on among other things, based upon facts and material in evidence, real or testimonial, material evidence provided that the out-of-Court material derived from a witness subject to full cross-examination.*

*In light of the above authorities and evidence from the Plaintiff find that he has failed prove this issue on the balance of probability therefore, is not the legal owner of the suit Kibanja as it belongs to the Defendant. …."*

- 21. Upon clear scrutiny of the record, it was not disputed by the Appellant that the Respondent is in actual possession of the suit Kibanja, and as properly noted by the Trial Magistrate, the Appellant did not dispute DEX2, in which the Local Council Chairperson was confirming that the Respondent has been on suit Kibanja for over 23 yeas at the time. From PEX1 dated 11 February 1999, it appears to me that the said letter that was written by the then LC5 Chairman Rakai District, which was addressed to the Uganda Human Rights Commission, indicated that Mr. John Kakooza had been granted 3 acres of land which he was developing as a customary occupant. However, this document does not clearly describe which exact land the Appellant had been given. It would be risky to rely on a document that does not describe the land, and there is no other evidence on record that would support it. - 22. On the other hand, Dex1, clearly indicated that land to be the then Prison Land. Also, the Appellant as Plaintiff did not prove actual possession at the time and there is no evidence led on record to show that he was in possession of the suit Kibanja by 2010, when he alleges that the Defendant occupied. The Trial Magistrate noted that the Appellant told Court that in 1999, his neighbours were Kabiza Christopher, Ssegenya. It was also noted that on the 2nd day of November 2022 when Court visited locus, the

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Plaintiff showed the boundaries of the suit Kibanja to be Mutukula Road, Kyansimbi Road, Kaitale., and that it was contradictory with the boundaries he gave in Court.

- 23. I agree with the Trial Magistrate's finding that the Appellant /Plaintiff failed to prove the issue of ownership on the balance of probabilities. It is a position of law that in all civil litigation, the burden of proof requires the Plaintiff to prove to Court on a balance of probabilities the entitlement to the relief being sought except in case where fraud is pleaded which requires proof slightly above the balance of probabilities but not beyond reasonable doubt. The Plaintiff must prove each element of the claim, or cause of action, in order to recover. In other words, the initial burden of proof is on the Plaintiff to show the Court why the Defendant liable for the relief claimed *See Sections 101, 102 and 103 of the Evidence Act Cap 8 (Revised edition)***.** - 24. From the record of the Trial Court, and the evidence presented, there was no sufficient evidence led by the Appellant as Plaintiff to prove that he is the rightful owner of the suit Kibanja. Even in Court, I find it difficult to believe that the Plaintiff is the rightful owner of the suit Kibanja, since the Plaintiff failed to lead proper evidence at trial to prove his case. Therefore, I do not find any error of either law or fact on the part of the Trial Magistrate in this regard. There was no sufficient evidence led by the Appellant before the Learned Trial Magistrate prove that the Appellant is the rightful owner of the suit Kibanja. The evidence on record, the circumstances leading to the case, the testimony of the parties leads to one conclusion that indeed the suit property is a property of the Respondent in this case, and the re-evaluation of the evidence on record shows that, the Respondent is the rightful owner of the suit Kibanja/property. - 25. Therefore, this appeal fails and it is hereby dismissed with costs. I make the following orders: - a. The Judgment and orders of the Trial Magistrate are upheld. - b. The costs of the appeal are awarded to the Respondent.

It is so ordered.

Judgment signed and delivered electronically at Masaka this 20th day of April, 2025.

……………………………………

**LAWRENCE TWEYANZE JUDGE. 20th April, 2025**