[2024] UGHC 1164

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CIVIL APPEAL NO. 0086 OF 2022

(Formerly Masindi Civil Appeal No. 0037 of 2022)

#### KASEGU GERALD & 6 OTHERS:::::::::::::::::::::::::::::::::::: VERSUS

#### YONIA KAZIMURA:::::::::::::::::: **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

[*Appeal from the judgment and orders of H/W Komakech Kenneth, Magistrate* Grade I, Buliisa Chief Magistrate's Court at Buliisa in Civil Suit No. 1 of 2018]

# BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA **JUDGMENT**

# **Background**

- $[1]$ The Respondent/Plaintiff sued the Appellants/Defendants in trespass claiming ownership of approx. 10 acres of land located at Kirama Village, Kigwera Sub-County, Buliisa District, a permanent injunction, general damages and costs of the suit. - It was the Respondent's case that he is the lawful owner of the suit $[2]$ land which she acquired by way of first occupation in 1950s, marked with known boundaries where she has houses, trees belonging to her son, a one **Wathum** and 5 grave vards located on the eastern side of the land. - That she however, on the request of the father of the Appellants, $[3]$ a one **Kasegu Isava**, offered him a 2-acre piece of land out of the suit land but that after the death of **Kasegu Isaya**, without any color of right, the Appellants forcefully entered the Respondent's 8 acres of land, constructed thereon grass-thatched houses and planted Aloevera along the road side of the land. - $[4]$ The Respondent contended that as a result of the foregoing, the Appellants acts of trespass denied her use of the land and she has been psychologically tortured, suffered mental anguish and fear for which she holds them liable for damages.

- In their joint defence, the Appellants denied the Respondent's $[5]$ claims and averred that they are the lawful owners of the suit land where the grandparents stayed and that it is where they were born and grew from. - That the Respondent who has her own land separate from that of [6] the Appellant was married to the late **Kasegu Isaya** whom upon his death, she left without having a child with him. - The trial Magistrate evaluated the evidence as adduced by the $[7]$ parties before him and found that the Respondent's unchallenged evidence is that she occupied and utilised the suit land by construction of houses and grew thereon crops which he confirmed on locus, when he found that the Appellants owned and occupied their land on the eastern side of the suit land. The trial Court was mindful of the fact that the Appellants started laying claims and encroaching on the suit land by planting Aloevera trees and construction of houses at the time UNRA and Total Uganda Ltd began undertaking a series of activities on the land and other areas around thus implying that the Appellants therefore, were actuated and made to encroach on the Respondent's land in quest for the benefits arising from the compulsory acquisition of land, compensation. - The trial Magistrate entered judgment in favour of the Respondent, $[8]$ that she is the rightful owner of the suit land, general damages of $3,000,000/=$ , an order of a permanent injunction restraining the Appellants, their agents, servants/or employees from trespassing on the suit land and costs of the suit. - The Appellants were dissatisfied with the decision of the trial $[9]$ Magistrate and filed the present appeal on the following grounds of appeal: - The learned trial Magistrate erred in law and in fact when he $\mathcal{I}$ failed to properly evaluate the evidence on record thereby

arriving at a wrong decision in Civil Suit No. 01 of 2018 that the suit land belongs to the Respondent.

- $2.$ The learned trial Magistrate erred in law and in fact when he totally disregarded the Appellants' evidence of possession and customary ownership of the suit land thereby arriving at a wrong decision in Civil Suit No. 1 of 2018 that the suit land belongs to the Respondent. - The learned trial Magistrate erred in law and in fact when he $3.$ failed to find that the suit land belongs to the beneficiaries of the estate of the late **Kasegu Isaya** the father of the Appellants. - $4.$ The learned trial Magistrate erred in law and in fact when he found that the suit land was donated to the Respondent by the **Yakobo Mugema** without evidence to support the claim. - The learned trial Magistrate erred in law and in fact when he 5. failed to find that the suit land was acquired by way of first occupation by the late **Kasegu Isaya** bordering the land of Mulega in the East, Hamisi in the West, Kirama Primary School in the South and Kasegu stream in the North.

# **Counsel legal representation**

[10] The Appellants were represented by Mr. Simon Kasangaki of M/s Kasangaki & Co. Advocates, Masindi while the Respondent was represented by Mr. Mangeni of M/s Aeton Advocates, Masindi. Both Counsel filed their respective submissions for consideration in the determination of this appeal.

### Duty of the $1^{st}$ Appellate Court

[11] It is the duty of this court on first appeal 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, Fr. Narsensio Begumisa & 3 ors vs Eric Tibebaga S. C. C. A. No. 17 of 2000 [2004] KALR 236. This court shall therefore, as a first appellate court re-examine and re-evaluate the evidence on record and make its own inference of facts.

# **Preliminary objections**

- [12] Counsel for the Respondent raised 2 preliminary objections which this court is mandated to first dispose since preliminary objections by their nature have an effect of a likelihood of disposing off the appeal in case they are upheld. The objections are; - 1. Failure to extract and file a decree with the memorandum of appeal.

That under S.220 (1)(a), MCA, appeals from Magistrates Court presided over by a Chief Magistrate or a Magistrate Grade I in exercise of its original jurisdiction are from decrees and orders to the High Court. Relying on Mbambu Stella vs Monday Nicholas H. C. C. S. No. 10 of 2016 cited with approval in Migadde Richard & 2 ors vs Nakibuule Sandra & 2 ors H. C. C. S No. 53 of 2019, that failure to extract a formal decree before filing an appeal is a default which goes to the root of the jurisdiction of court. Besides, I doubt whether failure to extract a decree appealed from would nullify an appeal.

2. The grounds of appeal offend $0.43 \text{ r}.1(2)$ CPR.

That the $1^{st}$ - $4^{th}$ grounds of appeal are argumentative while ground 5 is both argumentative and narrative in nature offending to **0.43 r.** (1)(2) CPR which require grounds of appeal to be concise without any argument or narrative.

- [13] As regards the $1$ ^st preliminary objection, I find that on record there is a decree that was extracted/drawn and filed in the lower court by Counsel for the Appellants dated 5/7/2023 as part of the preparation for the appeal. I find such decree on record was in compliance with **S.220 (1)(c) MCA.** This preliminary objection is in the premises found to bear no merit and it is accordingly overruled. - [14] As regards the $2^{nd}$ preliminary objection, I find that the $1^{st}$ $4^{th}$ grounds of appeal are not argumentative as Counsel for the Respondent claims. As per O.43 r.1(2) CPR, a memorandum of appeal must set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any

argument or narrative. The $1^{st}$ – $4^{th}$ grounds of appeal in the instant case clearly points out the grounds of objection to the decree appealed from. It is these grounds of objection to the decree that Counsel for the Respondent is referring to as arguments. These are the errors the Appellants believe occasioned a miscarriage of justice and therefore are the basis of the grounds of appeal.

[15] As regards **ground 5 of appeal**, I find that indeed, this ground of appeal is argumentative and narrative in nature thus offend the provisions of $0.43 \text{ r.1}$ (2) CPR because of the inclusion of;

> "...suit land was acquired by way of first occupation by the late Kasegu Isaya bordering the land of Mulega in the East, Hamisi in the West, Kirama Primary School in the South and Kaseau Stream in the North".

This ground of appeal is argumentative and narrative in nature because it introduced evidence in the memorandum of appeal.

[16] Despite the above offensive ground of appeal, I nevertheless proceed to rehear the case by subjecting the evidence to a fresh and exhaustive scrutiny and re-appraisal as required of a first appellate court, Narsensio Begumisa vs Tibebaga (supra) and also Wepukhulu Nyuguli vs Uganda S. C. Crim. Appeal No. 21 of 2011.

# Merits of the appeal

[17] The $1^{st}$ - $5^{th}$ grounds of appeal appear to revolve how the trial Magistrate evaluated the evidence before him to arrive at the conclusion of declaring the suit land to the Respondent. As a result, the 5 grounds of appeal shall be tackled together.

#### **Grounds 1-5: Evaluation of evidence**

[18] Counsel for the Appellants submitted that the Respondent sued the Appellants in trespass, claiming ownership of the suit land following demarcations made by the Justice Centres of Uganda, **Hoima** during mediation.

$\mathsf{S}$

- [19] Then, that the Respondent's case was full of inconsistencies and That whereas the Respondent pleaded and contradictions. adduced evidence that she acquired the suit land in 1950 by way of first occupation, a vacant land and gave the Appellants' father 2 acres, at scheduling, she claimed that she acquired the suit land from her parents, Kyorwa Yerusa and Arafairi Wakilete. Secondly, that the Respondent admitted that Kasegu Isaya, father of the Appellants was buried on the suit land in 2009 and the Appellants' other relatives who include Kasegu's brother, Francis Byakala were also buried on the suit land in 1995 and therefore, the Respondent cannot assert that the Appellants entered the suit land after 2018 when UNRA compensations began. - [20] Counsel concluded that all the foregoing points to the fact that the suit land customarily belongs to the Appellants and not the That the trial Magistrate wrongly evaluated the Respondent. evidence to hold otherwise. - [21] Counsel for the Respondent on the other hand, submitted that the Respondent's case is that a one Yakobo Mugema gave the Respondent's father, the late Arafairi Wakilete a piece of land of approx. 10 acres of the suit land which she accordingly inherited. That the said Yakobo Mugema also acquired it by way of a grant as a gift inter vivos in 1950 from Yakobo Mugema. That the Respondent settled on the suit land until 2018 when she left because of illness and handed her land to her nephew, Wathum Vicent as caretaker of the land on which she has a house, trees and 5 graves of her relatives on the eastern side of the suit land. - [22] That the Appellants on the other hand adduced evidence that the suit land belongs to the family of the late Kasegu Isaya which is separate from the land in dispute. That when misunderstandings arose between the Appellants and the Respondent who was married to Kasegu Isaya but later left without a child with the said Kasegu Isaya, the Justice Centres of Uganda, Hoima successfully mediated the parties and on 3/2/2017, under which a written

consent (D. Exh. 1) was executed by which the Appellants took 2 acres of land.

- [23] Counsel submitted further that as per the observations at locus, the Appellants do not stay on the suit land and have no developments thereon. That all the Respondent's developments are on the portion she obtained by way of inheritance and she gave the Appellants' father, the late Kasegu Isaya about 2 acres which do not form part of the suit land. That the Appellants' relative and their father were not buried on the suit land but rather, on the adjacent land they owned neighbouring the suit land. - [24] Counsel concluded that the trial Magistrate having evaluated all the evidence both in court and while at locus, concluded that the Respondent's evidence of occupation and utilisation of the suit land on which she constructed houses and grew crops was not weakened during cross-examination. He found that the Appellants were on the eastern side undisturbed save for the encroachment on the Respondent's land. - [25] As regards the evaluation of evidence before him, the trial Magistrate in the $1^st$ instance, the Respondent pleaded in **para 4**, (9) of the plaint thus:

"That the plaintiff [Respondent] is the lawful owner of the disputed land measuring approximately 10 acres situated at Kirama L. C. I Village, Kigwera Sub-county, Buliisa District which she acquired by way of first occupation in 1950s marked with known boundaries".

During scheduling, the Plaintiff's [Respondent] case was that she acquired the suit land from her parents, her father Arafairi Wakilete and her mother Kyorwa Yerusa who also got it from a one Yakobo Mugema in 1950. During trial, the Respondent testified thus:

"This was a vacant land. I came there in 1950.......

Then I left him one (1) acre. After giving Kasegu one acre, we stayed with him without any problem. So the defendants[appellants] after seeing that UNRA had come, they left the portion I left them and they came onto my land".

- [26] Both Mary Kazimura (PW3) and Plasidi Kisawo (PW6), testified that the suit land was given to the father of the Respondent by PW6's father, Yakobo Mudamuki (Mugema). - [27] The above evidence contradicted that of the Respondent regarding how she acquired the suit land and departed from the Respondent's pleadings wherein she claimed that she acquired the suit land by $1^{st}$ occupation. This offended **O.6. r.7 CPR** which prohibits a party from departing from his or her pleadings. In Semalulu vs Nakitto H. C. C. A. No. 4/2008, it was held that it is trite law that parties are bound by their pleadings and no party can be allowed to depart from his/her pleadings. - [28] Secondly, it is apparent that the 2 parties own their respective pieces of land adjacent to each other in the same area. The Respondent claimed that the Appellants crossed the boundaries and encroached on her piece of land where they have built houses. Though the Respondent did not testify about the extent of the trespass, i.e. the acreage of the portion trespassed upon, her care taker Wathum Vicent (PW2) testified during cross-examination by **D3** that the land grabbed, though he did not measure it, is approx. 6 acres. - [29] Whereas in her pleadings the Respondent claim that she gave the Appellants' father 2 acres, in evidence she testified that she left him with 1 acre. She was not consistent in her evidence. The Appellants denied such a claim and indeed, I find no evidence that the Respondent offered the Appellants' father any land. - [30] The trial Magistrate on his part, concluded that while at locus, he found the Appellants' family on the eastern side undisturbed save for the encroachment on the Respondent's land. He identified the boundary of the suit land was a tarmarind tree that was confirmed by Kasangaki Edward (PW4) and Birungi Doreen (PW7).

- [31] I have however perused the trial Magistrate's notes while at locus, none of the Respondent's witnesses including the Respondent showed the trial Magistrate the alleged tarmarind tree (Omukonge) as the boundary of the suit land. The trial Magistrate's finding on this boundary allegedly crossed by the Appellants during trespass is not borne by either any evidence or observations or findings of the trial Court at locus. - [32] As regards the Respondent's development on the suit land, it is only the house occupied by Wathum (PW2), her care taker that was showed to court while at locus. The portion where the house of **Wathum** is does not form part of the portion of land in dispute. - [33] In conclusion, I find that had the trial Magistrate properly evaluated the evidence of the parties and weighed it against each other, he would have found that the Respondent fell short of proving her case on the balance of probabilities that the alleged trespassed upon portion of the land belongs to her. - [34] As a result of the above, the 5 grounds of appeal generally succeed. The appeal is accordingly allowed, the judgment of the trial court is quashed and the orders set aside and substituted with an order maintaining the demarcations as established by the Justice Centres of Uganda, Hoima dated 3/2/2017. Justice Centres Uganda had mediated the parties and settled them by ensuring that the Respondent retained her portion of land as demarcated by her care taker, Wathum's occupation. No order is made as to costs for purposes of not escalating their conflict but draw the parties to a reconciliation since they had been co-existing together as neighbours.

Dated at Hoima this $8^{th}$ day of November, 2024.

**Byaruhanga Jesse Rugyema IUDGE**