[2023] UGHC 447

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

## CIVIL APPEAL NO. 51 OF 2022

# (ARISING FROM CIVIL SUIT NO.12 OF 2019 AT KIHIHI)

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MUGYENYI INNOCENT ::::::::::::::::::::::::::::::::::::

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NAMBAJJE ALOYSIOUS [Appeal from a Judgment of Magistrate Grade one at Kihihi (His Worship Mukobi Asanasio) dated 27^th April, 2022. J

## BEFORE: HON. JUSTICE TOM CHEMUTAI

### JUDGMENT

This is a first appeal. It arises from the Judgment of the Magistrate Grade One at Kihihi in Civil Suit No.10 of 2012, where the Respondent was declared by the Court to be the rightful owner of the suit land measuring 50ft by 300ft, adjacent to the land of the late John Mpirwa's estate. The Appellant was declared a trespasser on the suit land and he was accordingly given 60 days within which to re-locate his toilet and harvest his crops that were on the suit land. A permanent injunction was issued against the Appellant from further interfering with the suit land after sixty days from the date of delivery of the Judgment and lastly each party was to bear its own costs.

The brief back ground to this appeal is that the Respondent filed a Civil Suit No.12 of 2019 at the Chief Magistrate' Court of Kanungu at Kihihi, claiming

that he was a bonafide owner of the suit land having inherited the same from his late mother, Ansira Nyiramponeke. That his late mother had acquired the suit land from the estate of her mother, Mangadarena Nyirarukundo. That the Appellant had been trespassing on the suit land and the Respondent sought for the following orders from the trial Court;

- a) Declaration of ownership and the Appellant is a mere trespasser b) A permanent injunction restraining the Appellant, his successors /agents or any other deriving title from him. - c) Declaration of vacant possession - d) General damages - e) Costs of the suit

The trial Magistrate Grade One, gave his judgment in favour of the Respondent. The Appellant being dissatisfied with his decision, appealed to this Court in Civil Appeal No.51 of 2022.

The Appellant's Memorandum of Appeal has two grounds of appeal which appear as follows:

- 1. The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record. - 2. The Learned Trial Magistrate erred in law and fact when he only analyzed and considered the plaintiff's evidence.

#### Representation

At the hearing of the appeal, both parties were present and gave brief oral representation of their respective cases.

The Appellant averred that he inherited the suit land from his father, the late John Mpirwa. That the late Yozefu Sebishimbo died after dividing his land and that his late father John Mpirwa, son of Yozefu Sebishimbo, was given the suit land which the Appellant has lived on for long period of time and that it was well demarcated. He prayed that this Court allows the appeal with costs and declare him as the owner of the suit land.

The Respondent averred that his mother passed on 2012 and thereafter he inherited her share from part of the estate of late of her father Yozefu Sebishimbo, which was allocated to his mother. That the suit land measures 50ft and 300ft. He stated that the Appellant planted coffee and built a toilet on his suit land, which was given to him. That the appellant denied him access to the suit land and he engaged the Local Authorities who advised him to seek legal redress from the Court.

He further averred that when the trial Court visited the *locus in quo*, the appellant failed to show the Court the right boundaries of the suit land. He prayed the appeal be dismissed with costs.

### Consideration of the court.

The duty of the first appellate Court has been defined in several cases. In case of Administrator General vs Bwanika James and Others, Supreme Court Civil Appeal No.7 of 2003, Justice Oder, JSC, held:

"It is a well-settled legal principle, embodied in Rule 29 (1) of the Court of Appeal Rules, that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although

in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions: See Coghland Vs. Cumberland (1898) 1 ch. 704 (Court of Appeal of England): and Pandya V R. (1957) E. A 336)"

Reference can be made also to Fr. Narsensio Begumisa and Others $v$ Eric Tibebaga Supreme Court Civil Appeal No.17 of 2002 and Goustar Enterprises Ltd Vs Oumo [2006] EA 77.

I have perused the judgment of trial Magistrate Grade One, record of appeal and the oral averments made by the parties during the hearing of the appeal. The suit land was part of the land that originally belonged to estate of the late Yozefu Sebishimbo. The said Yozefu had before passing on, divided his land and gave some of it to his wife the late Mangadarena Nyirarukundo and remaining part was given to his sons, who included the Prof. Bimenya Gabriel and John Mpirwa, who is alleged to be the father of the Appellant and his brother Niwamanya Joram (DW2)

The late Mangadarena Nyirarukundo on 6^th August ,1993 made a distribution agreement of her land which she had obtained from the estate of Yozefu Sebishimbo. She distributed it to her five daughters namely, Peteronia Nyiramurisi(PW2), Maria Nyirabyiruka, Amgerica Nyiransababera, Ansira Nyiramponeke (the mother of the Respondent) and Joni Bosco Tumuramye, who is the son to her last born daughter.

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I note that the said distribution agreement was witnessed by PW2 and the mother of the Respondent and further it was further witnessed by another nine witnesses and it was copied to all the Local Council Authorities.

The said Mangadarena Nyirarukundo did not give part of her estate to the boys because they had early been given their share by their late father, Yozefu Sebishimbo.

PW2, after the passing of her mother, Mangadarena Nyirarukundo, kept care taking the land that belonged to her as well as that for her sisters, including the suit land. In 2018 as per an agreement made in presence of the Local Council Authorities inclusive of PW3, the Chairperson LC11, PW2 gave the Respondent the suit land as his mother's share, which the former had been care taking.

When the Respondent tried to possess the suit land, he faced stiff resistance from the Appellant who alleged that the suit land was part of John Mpirwa's share and hence belonged to him and that he had planted bananas, maize and coffee on the suit land.

PW3 Chairperson LC11, convened Local Council meeting with other stakeholders like the Police over the land dispute between the Appellant and Respondent. The said meeting resolved that the Appellant had trespassed on the suit land which belonged to the Respondent. PW3 further noted that the Appellant had at one time been reported to Police and was arrested for Criminal trespass.

$\overline{5}$

$\mathcal{L} = \frac{1}{\sqrt{2}}$

The Appellant averred that the suit land belonged to the state of the late John Mpirwa and he was the last born of late Mpirwa. That the suit land had matooke mixed with coffee plants and a pit latrine which belonged to him. That he had been using the land for a long time and that the Respondent had never used the land.

The trial Magistrate visited the *locus in quo* and observed that the Appellant's toilet had partly entered the suit land and there were coffee and the banana planation belonged to the Appellant which were very young and estimated to have been planted in 2018.

The trial Court was able to establish the evidence of the distribution of the land that belonged to the late Mangadarena Nyirarukundo and the way it was distributed among her five daughters whereby each was given a plot measuring 50ft from the road and 300ft down to the well. The Court noted that late John Mpriwa's land was neighboring the suit land which was located to left hand side.

The trial Magistrate, after evaluating the evidence on record and proceeded to determine the major issue of the matter and stated as follows;-

"I have already analysed the evidence above and established that the late John Mpirwa's estate is separate and clearly marked from the late Sebishimbo's estate (land) left to his daughters on which the plaintiff has his mother's share. The distribution and demarcation of the plaintiff's late mother's share which is now the suit land was done correctly on 29/11/2018 by PW2 and in the presence of many people including PW3 - the area LCII Chairperson. This matter appears to have handled at many Administrative

levels. It is clear on record that the defendant was even arrested for criminal trespass onto the same land. Court is convinced that indeed, the defendant used his constant presence on or near the Suit/and and trespassed to it by planting coffee, matooke and putting his latrine in the middle of the boundary. This is very unfortunate."

$\overline{\mathcal{H}}$

The trial Court, in my view, correctly held that the suit land belonged to the Respondent as it was the share of his late mother, Ansira Nyiramponeke, from estate of Mangadaren Nyirarukundo.

I find nothing wrong or error made by the trial Magistrate in evaluation of the evidence on the record and accordingly uphold the trial Court's judgment and orders issued therein.

I therefore find no merits in grounds of appeal, I therefore dismiss the appeal with costs to the Respondent.

Dated at Rukungiri this $\frac{1}{2}$ day of $\frac{1}{2}$ over $\frac{1}{2}$ 023.

**TOM CHEMUTAI JUDGE**