[2023] UGHC 455

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

## CIVIL APPEAL NO. 21 OF 2022

# (ARISING FROM CIVIL SUIT NO.028 OF 2017 AT KANUNGU)

**BETWEEN**

1. MUHWEZI VERINA

2. TURYAKIRA MARIAM

3. KAMUSHWA JOSEPH

4. MUCUNGUZI DAVIS

- 5. JUMA MATOVU BWENGYE - 6. BYARUHANGA PAUL::::::::::::::::::::::::::::::::::::

#### **VERSUS**

TWINE LOUIS MUJOJO::::::::::::::::::::::::::::::::::

[Appeal from a Judgment of Magistrate Grade one at Kanungu (His Worship Mukobi Asanasio) dated 4th December, 2020. J

# BEFORE: HON. JUSTICE TOM CHEMUTAI

#### JUDGMENT

This is a first appeal. It arises from the Judgment of Magistrate Grade One at Kanungu in Civil Suit No.10 of 2012, where the Respondent was the successful party at the trial Court. The trial Court declared that there was no public road traversing through land situated at Kishojwa cell, Norethern Ward in Kanungu Town Council. The Appellants were declared trespassers and stopped from passing through the plaintiff's land. The 1st Appellant was allowed to use two feet around her fence for the purposes of maintenance and a permanent

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injunction was issued against the Appellants from further trespassing of the Respondent's land as access road or footpath.

The brief back ground to this appeal is that the Respondent filed a Civil Suit No.028 of 2017 at the Chief Magistrate' Court of Kanungu at Kanungu, claiming that he owned a customary land (Kibanja) situated at Kishojwa cell, Northern Ward, Kanungu Town Council in Kanungu District and that the Appellants had jointly or severally trespassed on his land. The Respondent's averments of trespass were denied by the Appellants.

The trial Magistrate Grade One, gave his judgment in favour of the Respondent. The Appellants being dissatisfied with his decision, appealed to this Court in Civil Appeal No.21 of 2022.

The Appellants' Memorandum of Appeal has four grounds of appeal which appear as follows:

- 1. That the Trial Magistrate erred in law and fact when he failed to analyze that Plaintiff was not owner of the land in issue without locus standi to the original matter. - 2. That the Trial Magistrate erred in law and fact when he held that there was no public road in the disputed area /land. - 3. That the Trial Magistrate erred in law and fact when he failed to properly analyze the evidence on record and found for the Respondent herein. - 4. That the Learned Trial Magistrate erred in law when he admitted exhibits in evidence at the locus in quo visit.

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## Representation

The Appellants were represented by M/s Muhanguzi Justus & Partner Advocates while the Respondent was represented by M/s Bikangiso & Co. Advocates.

#### Submissions

Both parties filed their respective submissions and authorities thereto, which this Court will take into consideration while determining the merits of the appeal.

## Appellant's submissions

Counsel for the Appellants submitted on grounds one, three and four together.

Counsel submitted that the trial Magistrate misdirected himself by framing different issues which were different from the Respondent's cause of action hence occasioning miscarriage of justice. He added that the Court did not address the issues of ownership of the suit land and trespass. That the Respondent and his witnesses did not tender the purchase agreements as proof of ownership of the suit land.

Counsel submitted that trial Magistrate erroneously admitted the Respondent's document confirming his ownership at the *locus in quo*. That all the Appellants did not consent to its admission. He added that the Respondent did not seek leave of Court before tendering the said document.

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Counsel contended that the said documents which were tendered in Court were in Runyankore/Rukiga not translated in the language of the Court.

Counsel submitted that the Respondent acknowledged that there was a foot path on or through his land, however, he did not want it to be there. That the Respondnet admitted that there was litigation over the said foot path and it was resolved that three feet was enough for the foot path. Counsel further contended that the existence of a foot path was confirmed by PW3, the former area LC1 Chairperson.

Counsel submitted that there was no public road but rather footpath which was used by the community for very long period of time. That the Respondent tried to blocked it but was prevented from doing so by locals.

Counsel submitted that the Appellants and the Community had overtime got user rights of the footpath which the Respondent wanted to block. He added that DW1 and DW2 gave evidence of the existence of the said footpath for long period of time.

Counsel submitted the trial Magistrate at the *locus in quo* did not make his own observation of what he discovered at the scene. That there was no map drawn from locus. That the trial Magistrate proceeded with the hearing and obtained fresh evidence from the locus. Counsel cited the case of Obita Charles Vs Kilma Franco and 4 others Civil Appeal No.45 of 2016.

On ground two, counsel submitted that the Respondent did not present at the trial Court any documents or town map or prints to show that there was no public road on the said suit land.

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#### Respondent's submissions

Counsel for the Respondent raised preliminary objection that the Appellant's ground of appeal offended Order 43 of the Civil Procedure Rules as they were argumentative and narrative in nature. He prayed that they should be struck off with costs to the Respondent.

On ground 1,3 and 4, counsel submitted that the suit before the trial Court was for declaration on ownership and on issue of trespass but the Appellants filed their Written Statement of Defense and averred that suit land was public road.

Counsel contended framing of issues is duty of the Court and that Court must take into account matters of controversy that need determination when framing the issues.

Counsel submitted that there was no need to prove ownership of suit land because it was not an issue. That the dispute was whether there was a public road on the Respondent's land, which belonged to the Community.

Counsel added it was an agreed fact the Respondent bought two pieces of land from Mukombe and Matovu Janada and that fact was agreed upon hence needed not be proved in court.

Counsel submitted that the Respondent upon acquiring the suit land, there was a foot path going to his home, which he fenced off because of security reasons and that his evidence was corroborated by PW2 and PW3.

Counsel submitted that trial Magistrate admitted exhibits at *locus in quo* and added that the said exhibits should have been tendered in Court during the hearing. He added admission of the exhibits was agreed upon by the parties hence did not create any injustice on the on Appellants. He cited the case of Turyahikayo James & 2 Others vs Ruremire Denis, HCT Civil Appeal N0.043 of 2010.

Counsel submitted that none of Appellants contended that the suit land was theirs. That they claimed it to be a public road that was used by the community. He added the alleged footpath was not a gazetted road in Kanuagu Town Council and as such, the trial Magistrate was right to find that there was no public road on suit land.

# Appellant's submissions in rejoinder.

On the preliminary objection, counsel submitted that the Appellants' ground of appeal were not argumentative or narrative any in way.

Counsel reiterated his submission that trial Magistrate departed from the pleading filed in court and delved into a dispute that was filed in court. He submitted that the Appellant's witnesses gave evidence to the effect that since time immemorial, there was a foot path that traversed in the plaintiff's land. That argument of whether it was a footpath or a public road is an attempt to defeat the interest of justice by the Respondent using technicalities.

### Consideration of the court.

Before I delve into the merits of the appeal, I will first deal with the preliminary objection raised by the counsel for the Respondent to the effect

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that the grounds of appeal are argumentative and narrative which contention was greatly opposed by the counsel for the Appellant.

Order 43 Rule 1 of the Civil Procedure Rules provides;

$\epsilon$ Form of appeal.

(1) Every appeal to the High Court shall be preferred in the form of a memorandum signed by the Appellant or his or her advocate and presented to the court or to such officer as it shall appoint for that purpose.

(2) The memorandum 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."

I have perused the Memorandum of Appeal and the grounds of appeal therein. I find the grounds of appeal are not argumentative or a narrative. I therefore overrule the preliminary objection.

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

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# 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 written submissions and authorities thereto cited by counsel.

I will handle ground four first whereby the Appellant blamed the trial Magistrate for admitting evidence at the locus in quo visit.

Counsel for Appellant contended that it was not proper for the trial Magistrate to admit the Respondent's document confirming his ownership at the locus in quo. That all the Appellants did not consent to its admission and he added the document was in Runyankore/Rukiga language and it was not translated in the language of the Court, that is English.

Counsel for the Respondent argued that the admission of the exhibits at locus in quo was agreed upon by the parties hence it did not create any injustice on the Appellants.

I note from the record of appeal that, the Respondent at the trial called three witnesses and they gave their evidence and were cross examined. There was no document or exhibit tendered by the said Respondent witnesses. The Respondent closed it case on 17^th October 2019. The Appellant gave their evidence and closed their case on 21st February 2020. The Court adjourned

the matter on 19^th March 2020 for *locus in quo* visit. The *locus in quo* visit was done 29^th September 2020.

It is worth noting that by the time of *locus in quo*, all the parties' witnesses had testified and the parties had closed their respective cases, what was remaining was the *locus in quo* visit and submissions.

At the locus in quo visit, the Respondent tried first to tender in Court a photograph of Mr. Bagumisiriza Samuel, the alleged former owner of the land which was correctly rejected by the Court.

The Respondent then prayed to tender in LC1 Judgment dated 1st March, 1998 and Appellant did not object to it and Court allowed it and marked it as PE1.

I observed at the locus, it was stated that DW4, Mr. Mucunguzi Davis was the spokesperson of all the Appellants, which I find strange because all the Appellants were sued in their individual capacity.

It was erroneous for the trial Court to allow the said LC1 Judgment in be tendered in evidence because the Respondent had closed its case. It is not clear whether the Respondent had taken oath or was under oath before or at the time of tendering the same at *locus in quo* visit.

Thereafter, the trial Court again allowed the Respondent to tender in a Court's Order which was marked as PE3 and a document confirming his ownership of the land, dated 6^th January 2020, marked as PE4 and finally the document dated 6^th January 2020, allowing the Respondent to take care of his daughter's property.

In the case of Okech John David Vs Ojok Robin, Civil Appeal No. 047 of 2015, The Hon Justice Stephen Mubiru, J. held as follows;

"By the fourth ground of appeal, it is contended that the trial Magistrate erred in law and fact when he failed to conduct proceedings at the locus in quo in accordance with the law and allowed witnesses to testify when they had not testified in court. Visiting the locus in quo is to check on the evidence by the witnesses, and not to fill gaps in their evidence for them or lest Court may run the risk of turning itself a witness in the case (see Fernandes v. Noroniha [1969] EA 506, De Souza v. Uganda [1967] EA 784, Yeseri Waibi v. Edisa Byandala [1982] HCB 28 and Nsibambi v. Nankya [1980] HCB 81). Admission of the evidence of; 7 (i) Opiru Charles; (ii) Napthali Kibwota; (iii) Odongkara Michael; (iv) Opwonya David; (v) Ocaya Laponye; (vi) Otto Luka; (vii) Adwong Simayo; (viii) Obwona Akuku was an error.

That notwithstanding, according to section 166 of The Evidence Act, the improper admission or rejection of evidence is not to be a ground of itself for a new trial, or reversal of any decision in any case, if it appears to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. Furthermore, according to section 70 of The Civil Procedure Act, no decree may be reversed or modified for error, defect or irregularity in the proceedings, not affecting of the case or the jurisdiction of the court. Before this court can set aside the judgment on that account, it must therefore be demonstrated that the irregularity occasioned a miscarriage of justice. A court will set aside a judgment, or order a new trial, on the ground of a misdirection, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, only if the court is of the opinion that the error complained of has resulted in a miscarriage of justice. A miscarriage of justice occurs when it is reasonably probable that a result more favourable to the party appealing would have been reached in the absence of the error. The court must examine the entire record, including the evidence, before setting aside the judgment or directing a new trial. Having done so, I have decided to disregard the evidence of the eight additional witnesses, since I am of the opinion that there was sufficient evidence to guide the proper decision of this case, independently of the evidence of those eight witnesses" underling for my emphasis.

I find that the act of the trial Court allowing the tendering exhibits at locus in quo visit yet the parties had closed their respective cases, was irregular even though the Appellants did not object to their admission.

It was an afterthought by the Respondent to fill in the gaps of ownership of the suit land because in the record of proceedings at the scheduling, the Respondent clearly indicates that he did not have documents to tender in while as the Appellants indicated the list of their documents and tendered them during the hearing. The trial Magistrates allowing the Plaintiff to tender in his document, in my own view, amount to trial by ambush.

I accordingly expunge the locus in quo record since it was erroneously taken by the trial Magistrate. I therefore find ground 4 in affirmative.

I will now analyze the remaining of the grounds of appeal together based on the evidence on record.

On the ownership of the suit land, at the scheduling, the Respondent averred that he was the owner of the suit land which was a customary piece of land and the Appellants confirmed that the Respondent acquired the land from one Mukomber and Jamada matovu. However, they contended that there was separate public road which the Respondent attempted to seal off on in 2017 and that was an agreed fact at the scheduling.

The major issue for determination for this appeal is whether the Respondent's suit land had a footpath or road which was communally used by the Appellants and others people at large.

The Respondent (Mr. Twine Louis Mujojo) 60-year-old, PW1 stated that he had purchased the suit land three years ago and that there was previously a foot path leading to Zamuda Matovu's home, who later sold to his land to him. That the footpath is still be used by the people on his land. That he had erected a wooden fence which was destroyed by the Appellants. In reexamination he stated that the footpath was there however, he previously wanted it removed because he longer wanted it there.

PW3 (Mr. Bakine bonny) 72 years old, former LC1 Chairperson stated that the parties were in his Court because of foot path which passes through the Respondent's land and that of the 1st Appellant. That the path was close to the house of the Respondent. That Respondent constructed a road to ensure that the footpath which was a short cut is abolished since it was being used by the thieves. That the Respondent attempted to close the footpath but faced resistance from the Appellants. In cross examination of PW2 by 2^nd Appellant, he stated that when the Respondent was buying the suit land, there remained three feet for a foot path and also stated that the former owner Zamuda allowed the people to use the said foot path. When PW2 was cross examined by the 3^rd and 4^th Appellant he stated that the former owner agreed to put a foot path on a boundary mark and he also stated in 1998 he decide the matter and he ruled that three feet were enough for the footpath. When the Court sought for clarity, he stated that that the foot path has been there throughout his live.

For the defense, 1st Appellant (Ms. Atuheire Verina Muhwezi) 45 years old, confirmed the footpath was still there and that when she bought her land which is near to that of the Respondent, the agreement showed that there was a footpath reflected on his land sales agreement. That the foot path is at the upper side bordered by many people. That on September 10^th, 2017 the Respondent blocked the foot path but it was reopened by over thirty locals.

DW2 (Ms. Turyakira Mariam) 54 years old, stated that she had spent 30 years in Kishojwa cell and for her time, she found the road passing behind the Respondent's home and the Respondent kept reducing the road by encroaching on it until he reduced it to foot path. That Respondent blocked the foot path on 25^th July 2011 and the locals re-opened it.

DW3 (Kamushwa Joseph) 74 years old, stated in 1970s one Kezekia Tibakwenda constructed a road on the suit land which the Respondent kept on reducing by encroaching on it and that previously the cars could use it, passing through Mukombe's land (the former owner of the suit land).

DW4 (Mr. Bwengye Juma Matovu) 35 years old stated that the road being contested starts from 1st Appellant's land up to Kagashe Trading Centre. That since he was born, he found the road in place. That the road was formerly used by cars but the road was later encroached and reduced in size. And that now it currently used by bicycles, motorcycle and pedestrians. That at one time the Respondent fenced off the road and he was told to remove the fence.

Dw5 (Mr. Mucungzi Davis) 42 years old, stated the road was about fifty meters long and that he found the road there when he started staying in the area in December 2015. That foot path is a Community path and averred that the Respondent had no authority to close the foot path.

DW6 (Byaruhanga Paul) 50 years old, stated that the road was wider and vehicles used to pass through until the Respondent started interfering with their road. In cross examination he started that it used to be a road and but it is now a footpath, especially at the Respondent's mother in-law's place, where the Respondent blocked. That the road did not pass through the Respondent's plots, but it is on the boundaries between the resident's lands.

DW7 (Jaria Matovu) 75 years old, stated that she knew that there was road coming through the villages up to Kisizi. That even vehicles used to pass through and that the Respondent started interfering with it by reducing it and after he constructed latrine on the road. That the road was for all residents not for individual persons. That the residents were complaining that Respondent had blocked their road.

DW8 (Twinomujuni Sylvia) 52 years old, stated that the Respondent started interfering with road in 1998. That one Bimbona Jame sued because interfering with road and the Respondent was ordered to stop encroaching on the road. That 2011 the Respondent dug a put latrine at night on the road and the mayor of Kanungu intervened and the Respondent was ordered to break or remove it and he did so. That again in 2017 the Respondent fenced off the road and the residents were annoyed and removed the fence.

## Analysis

The Respondent in his testimony stated that indeed he found there the footpath/road which was used by the locals and he stated that he longer wanted the same there. PW2 who was former LC1 Chairperson confirmed the fact the road has always been there and that the Respondent tried to construct an alternative road for locals but he faced stiff resistance when he blocked the said road. It was also PW2's evidence that former owners of the suit land Zamuda and Mujojo were aware of this road as it acted as a boundary.

The Appellants, DW7 and DW8 are relatively person of advanced age, who in their respective testimonies testified to the fact that there always had been a road passing through or near the boundary of the Respondent's land. All the Appellants averred to the fact that one time the said road used to be used by the vehicles before the Respondent started interfering with it by encroaching on it hence reducing it to the foot path.

In the case of Stewart Gawaya Tegule Vs Kampala City Council Authority and Anthony Mulindwa, Civil Suit No. 214 of 2011, the Hon. Justice Ssekaana Musa, stated as follows;

"The court is supposed to establish whether the 2^nd defendant and other people in the neighborhood have a right of way or an easement through the plaintiff's land. An easement is a right of cross or otherwise use some else's land for a specific purpose. It allows another to use and or enter into property of another without possessing it e.g a land owner may enjoy the right of way over the land of another to access the property...

The circumstances of this case clearly show that there has existed an access road even before the plaintiff acquired his interest in the said land in 2005. The plaintiff does not dispute this fact except that he is trying to rely on hiscertificate of title which does not indicate an access road with dotted lines. During cross examination, the plaintiff confirmed that the access road existed.

The said access road has been in existence before the plaintiff acquired this land and this is a question of fact and the fact that the same had never been disputed by the plaintiff's predecessors in title infers that there as reflected on the certificate of title buttresses the fact that the access road was indeed in existence. It could be true that the same was never marked-dotted on the plaintiff's certificate of title that but does not mean it was illegally created to amount to trespass. It would be unfair to try and block this access road to the neighborhood and yet the same has been in existence for over 30 years.

The court would imply an easement premised on the intention of the original parties and how they intended the same to be used. It is possible to create an easement simply by having used the property in a similar way before. The

court will assume that the original owners intended to create it as an easement but forgot to have the same noted on the title deed.

In the case of *Paddy Musoke v. John Agard and 2 others Civil Appeal No.* 46 of 2016 and Civil Appeal No. 134 of 2017, Justice Elizabeth Musoke

noted that the common law developed principles to the effect that a land owner had the right to use a road passing through an adjoining piece of land owned by another. Such a right was deemed to constitute an easement.

According to Meggary and Wade's text book titled "The law of real

property" 8th Ed page 1245, it stated that "common law recognized a limited number of rights which one landowner could acquire over the land of another, and these rights were called easements and profits, examples of easements are right ofway, right of lights and right of water."

The author continues to write that an easement constitutes an incorporated hereditament on land. Further the authors' state at page 1246 that the following requirements are necessary for an easement to be said to exist.

Four requirements must be satisfied before there can be an easement. First, there must be a dominant tenement and a serviette tenement. Secondly, the easement must confer a benefit on (or accommodate) the dominant tenement. Thirdly, the dominant and serviette tenements must not be owned and occupied by the same person. Fourthly, the easement must be capable of forming the subject-matter of a grant

It is therefore noted that at common law, easements could be utilized even without the consent of the serviette tenement owner. But there is a difference between having an access road traditionally or already in existence overtime is different from obtaining an access road by application under the Access Road Act."

I am inclined to agree with Appellants that there is a community road /footpath which has been used by community for a long of period time which the Respondent wants to block for his own advantage. I also note that before this case had been filed in this Court, the Respondent had tried to block the said road by building a toilet in it and fencing but it he faced stiff resistance from the local people and the local authorities.

In the case of Barclays Bank versus Patel, [1970] EA 88, Court of Appeal of Kenya, held that;

"A way of necessity arose by operation of law and continues to exist for as long as the necessity exists notwithstanding that it was not referred to in the certificate of title to the servient tenement".

I therefore find the trial Magistrate failed to properly evidence on record and allow the Appellants' appeal. I hereby set aside the trial Court's judgment and orders therein.

For peace and harmony between the Appellants and Respondent, since all are from the same Cell/Community, each party will bear its own cost.

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