[2023] UGHC 421

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA**

## **CIVIL APPEAL NO: 47 OF 2021**

## **(Arising from Civil suit No: 16 of 2019)**

# **MATOVU KALOLI…………………………………………………….….. APPELLANT (ATTORNEY OF ELENEO MUYIMBA)**

## **VERSUS**

## **1. MAYANJA LAWRENCE**

**2. KAMULASI SAMSON………………………………………..…….. RESPONDENT**

## **JUDGMENT**

**(Appeal against the Judgment & Orders of Her Worship Basajabalaba Jalia Magistrate Grade One at Lukaya under the Chief Magistrates Court of Masaka)**

*BEFORE; HON. LADY JUSTICE VICTORIA N. N. KATAMBA*

## **BACKGROUND**

The Appellant instituted Civil Suit No. 16 of 2019 in the Chief Magistrates court of Masaka at Lukaya against the Respondents and other parties for trespass to a Kibanja/land. In the course of the trial, he withdrew his claims against the 1st and 4th Defendants but prosecuted his claims against the Respondents until the trial court issued its Judgment and final orders in the matter.

The Appellant/Plaintiff's case is that 1st Respondent trespassed on his land and that the 2nd Respondent brought tractors and bull dozers which excavated his marram and took it, at his detriment. That the 2nd Respondent has since appropriated that part of the suit kibanja from which the marram was excavated as his property.

The Respondents denied the Appellant's claims. According to the 2nd Respondent's defence filed in the trial court on 18th December 2019, he denied the Appellant's claims and stated that he would adduce such necessary documents of ownership at the trial with leave of court. The 1st Respondent in his defence filed 23rd October 2019, stated that he purchased the suit Kibanja in 1991 from


Lukwago Zakalia. He did not attach any evidence to his plaint but stated in his summary of evidence under the list of documents that he would adduce his evidence by seeking leave of court.

The trial Magistrate who determined the matter held that the Appellant/Plaintiff failed to prove that the Respondents trespassed on his land and dismissed his suit with costs to the Respondents.

The Appellant was dissatisfied with the findings of the trial court and thus instituted the instant appeal.

#### **Representation**

The Appellant was unrepresented but entered appearance by way of his appointed lawful attorney, a one Matovu Kaloli.

The Respondent was represented by **M/s Nnyanzi & Nnyanzi Advocates**

The Appellant's grounds of appeal were not properly drafted but since he was unrepresented and this court is unable to ascertain his level of education or if he is literate at all, he has been excused for the omission.

## **At institution of the Appeal, the Appellant raised five grounds of appeal to wit;**

- *1. The magistrate in her judgment stated I did not tender in court any evidence that shows that the 2nd Defendant excavated murram from the suit kibanja yet I brought two witnesses and these were Kabogozza Valisto and Namatovu.* - *2. I handed over the exhibits to the magistrate which shows that the 2nd Defendant had used to excavate murram from the suit kibanja and the Magistrate returned the exhibits to me. I pass on my complainant in writing to the chief Magistrate.* - *3. The 2nd Defendant Kamulasi Samson did not bring to court any witness and he did not forward any defence whatever.* - *4. The 2nd Defendant Mayanja Lawrence stated that he bought the suit kibanja from Lukwago Zakaliya but the agreement he brought to court did not bear his name and signature.* - *5. When the magistrate came to inspect the suit kibanja, she did not inspect the boundaries of the kibanja.*


#### **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-aappraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon subject to the caution that I did not see, hear, or observe the witness.

**Decided cases have also established that "***where the trial court has erred, the Appellate Court will only interfere where the error has occasioned a miscarriage of justice. The Appellate Court has a duty to reevaluate the evidence of the trial court while considering facts, evidence and the law. The court can interfere with the findings of the trial court, if the court misapplied or failed to apply the principles applicable to the offence charged" in this civil case, the issues that were raised before court for determination.*

## **A PPELLANT'S SUBMISSIONS**

The Appellant elected to abandon grounds 3 & 5, argued grounds 1 & 2 concurrently & ground 4 separately.

*GROUND ONE:* **The magistrate in her judgment stated that I did not tender in court any evidence that shows that the 2nd Defendant excavated marram from the suit kibanja yet I brought two witnesses and these were Kabogozza Valisto and Namatovu.**

The Appellant submitted that at **page 3 paragraph 3 of the learned trial Magistrate's Judgment**, she indicated that whereas the plaintiff averred that the 3rd Defendant (now 2nd Respondent) excavated marram, on the suit kibanja, he did not tender in court any evidence that shows that the 3 rd Defendant (now 2nd Respondent) excavated murram, from the suit kibanja.

The Appellant submits that the above finding contradicts the content of pages 6-7 of the record of proceedings of the trial court. He submitted that PW3 Kabogoza Valsto, testified that he saw the 3 rd Defendant (now 2nd Respondent) on the suit kibanja with a tractor excavating murram. That he confronted him asserting that he did not own the suit kibanja.

The Appellant thus invited this court to find that the learned trial Magistrate erred in finding that he had not adduced any evidence to prove his claim.

*GROUND FOUR:* **The 2nd Defendant Mayanja Lawrence stated that he bought the suit kibanja from Lukwago Zakaliya but the agreement he brought to court did not bear his name and signature.**


*The Appellant submitted that he testified as can be seen on page 5 of the record of proceedings that the* 1 st Respondent (then 2nd Defendant) planted eucalyptus trees on his kibanja that was given to him by his father in 1956. That he also described the boundaries of his entire kibanja. That whereas the 1st Respondent (then 2nd Defendant) testified on **page 8 of the record of proceedings** that he bought the suit kibanja from Zakariya Luwago, the purchase agreement which he tendered on the record of court did not bear his signature. This agreement is marked Exhibit D1.

The Appellant submitsthat **S.10 (1) of the Contracts Act, 2010**, defines a contract as an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound. He argues that this provision of the contracts Act requires the parties to the contract to express their consent by signing. The Appellant supported his submissions with the case of **Ebbzworld Ltd & Anor v Rutakirwa (Civil Suit 398 of 2013) [2017] UGCommC 138** in which he alleges that the learned Hon. Retired Mr. Justice Billy Kainamura held that only agreements duly signed by the parties can be enforced by court.

In light of the above submissions, the Appellant invited this Honourable court to find that the trial magistrate erred in law and fact when she made the above impugned findings, allows the appeal, and awards him with costs in this court and the trial court.

#### **RESPONDENT'S SUBMISSIONS**


The Respondent argued grounds one and two jointly.

He submitted that it is trite law that in civil cases, the burden of proof lies on the person who alleges a fact and would fail if that fact is not proved and the standard of proof is on a balance of probabilities.

He submitted that PW1, PW2 and PW3 all merely stated that the 3rd defendant took a tractor and bull dozers on the suit kibanja and excavated marram therefrom. PW3 stated that the marram was for construction of a road to Kabuswasa. That since no document was tendered in court to prove so, no photos whatsoever and the record too does not show any document to that effect, the learned trial Magistrate was justified to make the findings that she made.

That moreover, the 3 rd defendant, DW2, denied the allegation and that the trial magistrate stated in her judgement that at the locus visit, court did not see any evidence of such trespass. That none of the plaintiff's witnesses told court where exactly the boundaries of the plaintiff's kibanja were and where exactly the 3rd defendant extract marram.

That in light of the above submissions and findings of court these grounds should fail.

## **Ground 4**:

The Respondent submitted that it is not mandatory that a buyer must sign an agreement of sale. That the signature of the seller is sufficient. The 2nd defendant, DW1, tendered in court his agreement of sale, DEx1, which demonstrates his purchase of the suit kibanja from the 1st defendant against whom, the plaintiff withdrew the suit. He also submitted that the Appellant neither disputed the sale agreement of the Kibanja nor its boundaries.

The Respondents further submitted that PW1 (the Appellant acting as lawful Attorney of the Plaintiff) did not know the size of the kibanja and did not state that the 1st Respondent is one of the neighbours of the kibanja and he did not tender in court any exhibit.

The Respondents submitted that since the 2 nd defendant testified that he obtained the kibanja in 1991, this implies that he has been in possession of the kibanja since 1991 and hence the plaintiff's claim is barred by the Limitation Act.

In conclusion, the Respondents submitted that the Appellant failed to prove his case on a balance of probabilities and that as such the appeal should be dismissed with costs.

## **DETERMINATION OF COURT.**


I have carefully examined the submissions of the parties and the record of the trial court and below are my findings on the grounds of appeal.

*Ground one*: *The magistrate in her judgment stated I did not tender in court any evidence that shows that the 2nd Defendant excavated murram from the suit kibanja yet I brought two witnesses and these were Kabogozza Valisto and Namatovu.*

*Ground two: I handed over the exhibits to the magistrate which shows that the 2nd Defendant had used to excavate murram from the suit kibanja and the Magistrate returned the exhibits to me. I pass on my complainant in writing to the chief Magistrate*

*These grounds could have better been joined and drafted as; The learned trial Magistrate erred in law and fact when she held that Appellant did not adduce any evidence to prove that the 2nd Defendant excavated marram from his Kibanja/land.*

*The Evidence Act Cap. 6 in S.1(d) defines evidence as the means by which any alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved and includes statements by accused person, admissions, judicial notice, presumptions of law, and ocular observation by the court in its judicial capacity.*

*S.1(h) of the Act defines "Oral evidence" to mean all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.*

*S. 59 of the Act provides that oral evidence must be direct, if it refers to a fact that could be seen it must be the evidence of a witness who says s/he saw it, if it refers to a fact that could be heard, it must be given by the person who heard etc.*

The above provisions demonstrate what among the pieces of evidence admissible in the courts of law in Uganda is *oral evidence*. This suit was filed in 2019 and heard in 2020. It was pleaded in the plaint that the 3rd Defendant/2nd Respondent excavated marram from the Appellant's Kibanja in 2017.

At the trial the Appellant's lawful Attorney testified that *he saw the Defendants execute the acts complained against, himself.* During his examination in chief, he stated and I quote, *"the 2nd defendant planted eucalyptus trees, the 3rd defendant dug stones from the suit kibanja. I saw the defendants myself. |" During cross examination of the Appellant's lawful Attorney at page 6, the second paragraph, he maintained his testimony when he stated and I quote, "The 3 rd defendant brought bull dozers ………………. I found the 3rd defendant excavating the marram."*

Kabogozza Valsto too, testified that 3rd Defendant/2nd Respondent excavated marram from the Appellant's kibanja.

The learned trial Magistrate did not state that she found the Appellant's witnesses' testimonies untruthful or wanting for any reason but simply made a blanket statement at page 3 paragraph 3 in the second sentence of her Judgment that the Plaintiff's Lawful Attorney did not tender in court *any evidence* that shows that the 3rd defendant/2nd Respondent excavated marram from the suit kibanja.

The above finding of the learned trial Magistrate is a clear misdirection on her part because as demonstrated above, the record of the trial court shows that *direct oral evidence* of what had transpired in 2017 on the suit land of this blind Appellant was adduced by two of the Appellant's witnesses. This evidence was maintained in cross examination and there is no reason as to why the learned Magistrate omitted to consider it in making her findings on the issue that was before her.

In conclusion, this ground/s of appeal hereby succeeds.

*Ground 4*: *The 2nd Defendant Mayanja Lawrence stated that he bought the suit kibanja from Lukwago Zakaliya but the agreement he brought to court did not bear his name and signature. This ground could have better been drafted thus: The learned trial Magistrate erred in law and fact when she relied on the 2nd Defendant/1st Respondent's agreement to make findings that bind the parties.*

The Appellant's complaint is that the agreement was not signed by the said party. He has cited a section of the Contracts Act 2010 but I agree with the Respondents to the extent that section does not specifically require that a contract must be signed by both parties.


People always execute contracts with others on a day to day basis when they purchase items and are issued with receipts from the vendors to which they need not append their signatures as purchasers.

A requirement that both parties to contract must sign may be counterproductive and I think that's why the framers of the Act did not deem it necessary to require both parties to append their signatures on a purchase agreement. I am also disinclined to follow the **Ebbzworld Ltd & Anor v Rutakirwa (Civil Suit 398 of 2013) [2017] UGCommC 138** authority, relied on by the Appellant for two reasons; it was quoted out of context ( it was not held therein that for a contract to be legally binding, it must have been signed by the purchaser) and it is not binding on me.

The rather intriguing fact about this agreement as an exhibit on the record, not mentioned by the Appellant, is the fact that it was never translated into the language of court. On the day the learned trial magistrate admitted it, it was in a local dialect, but she nevertheless admitted it as an exhibit and sternly instructed the Respondent's Advocate to ensure that its translation is filed on the court record at the next hearing.

The better practice should have been to admit it for Identification purpose only pending production of its English translation before it could be admitted as an exhibit. I have perused the entire record and I have not seen the English translation of the exhibit

In conclusion, I find that the learned trial Magistrate erred when she admitted and relied on the 1st Respondent's purchase agreement which was not in the language of court as an exhibit to make findings that bind the parties.

I have also tried my best to make sense of this Luganda document (the 1st Respondent's purchase agreement) which was recorded not so legible handwriting. I have realised that just like the Appellant and like in most bibanja matters, the 1st Respondent's kibanja size is undisclosed therein. In matters like this where one who has never surveyed his land comes to court complaining against another for trespass to their land, it becomes complicated to ascertain the extent of trespass, if at all.

The above limitation, notwithstanding, in this case, the Appellant adduced direct oral evidence of trespass to his land against the Respondents and so this court will seek recourse to the maxims of equity.

*This court is enjoined to exercise its jurisdiction in conformity with the Common Law and Doctrines of Equity….. whereby it is obliged to exercise its discretion in conformity with the principles of Justice, equity and good conscience respectively." See S.14(2) (b) (1) and 14(2) (c) of the Judicature Act.*

One of the *maxims of equity is that where equities are equal, the first in time takes priority/precedence. In John Katarikawe vs. William Katwire (1977) HCB 187* **cited with approval in the case of** *Mwenge Dairy Cooperative Society Ltd & Anor vs Badru Kachope (HCT-CA-22 of 2017) it was held that where there are two competing equitable interests, the first in time takes precedence*

The exact size of both bibanja owners at the time the trespass complained against was committed was unknown but according to their evidence, the Appellant has been in occupation since 1956 whereas the 1st Respondent acquired and assumed his occupancy in 1991.

The maxim favours the earlier occupant and in addition to that regard, it is the same Appellant who has adduced *direct oral evidence of eye witnesses that saw the Respondents trespass on his land*. The Respondents did not counterclaim/complain against the Appellant for trespass. This court therefore, agrees with the Appellant that it is his land which was trespassed upon by the Respondents.

In the premises this court orders that the Appellant shall survey and demarcate the exact size of his kibanja on all sides in the presence of the Local Area Authority. This demarcation shall be reduced into a properly written document in the language of this court. This report shall be filed in this court within 60 days from the date of delivery of this Judgment and the Respondents or their Advocate shall be given a copy.

The Respondents shall vacate such land that they trespassed upon as will be demarcated in the report. The 2nd Respondent shall pay **UGX. 5,000,000/=** (Uganda Shillings Five Million Only) in damages to the Appellant for excavation of marram from the suit kibanja and vacate the part which he appropriated to himself. The part which the 2nd Respondent shall vacate shall also revert to the Appellant.

The Appellant was not represented. In the circumstances, each party shall bear its own costs. I so order.

The Appeal partly succeeds and is hereby allowed with the orders below;

a) The Judgment and orders of the trial court are hereby set aside.

- b) The Appellant shall ascertain and demarcate the exact size of his kibanja on all sides and plant boundary marks in the presence of the Local Area Authority (LC1). - c) The demarcation in (b) above, shall be reduced into a properly written document (boundaries of kibanja report) in the language of the court. - d) The definition of boundaries report shall be filed on the record of this court within 60 days from the date of delivery of this Judgment and the Respondents or their Advocate on record shall be given a copy of the same. - e) The Respondents shall vacate such land that they trespassed upon as shall be disclosed or demarcated in the survey report. - f) The 2nd Respondent shall pay **UGX. 5,000,000/= (Uganda Shillings Five Million Only)** in damages to the Appellant for excavation of marram from the suit kibanja/land and vacate the part which he had appropriated, for the Appellant's use/occupation. - g) Each party shall bear its own costs of the appeal.

Dated and delivered electronically this 23rd day of August, 2023.

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## **VICTORIA NAKINTU NKWANGA KATAMBA**