[2012] UGHC 447

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBARARA

### HCT-05-CV-CA-0027 OF 2008

(Arising from Ntungamo Civil Case No.0038 of 2008)

MWESIGWA JOHNSON $=APPELLANT$

$\mathcal{L}^{\mathcal{L}}$

**VERSUS**

MUHUMUZA BENON === **RESPONDENT** $\mathbf{I}^{\prime}$

## BEFORE HON, JUSTICE MR. BASHAIJA K. ANDREW.

### **JUDGMENT.**

This is an appeal against the decision and decree of the Magistrate Grade 1 of Ntungamo (hereinafter referred to as the "trial court"). It is premised on three grounds as follows:-

- 1. The trial Magistrate was wrong to dismiss the appellant's case when the appellant and his witness had adduced sufficient evidence and proved the case on balance of probabilities. - 2. The learned trial court was wrong in law to accept and rely on the distribution of the estate of the late Yosamu Rutsyamuka, the father of the parties which was made by people who by law had no legal powers to do so and this error has caused substantial miscarriage of justice. - 3. The court proceedings at the locus in quo on $4/2/2008$ and $20/2/2008$ were conducted in such irregular manner that resulted in a

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*substantial miscarriage ofjustice as the parties and other witnesses were not sworn before they testified, there is no record of which witnesses who were present and there is no record ofthe observations which were relied on by the court while reaching its decision.*

# *Background.*

*MWESIGWA JOHNSON* (hereinafter referred to as the "Appellant") and *MUHUMUZA BENON* (hereinafter referred to as the "Respondent") are brothers, and are two of several children of the late Rutsyamuka Yosamu who died intestate, leaving behind two pieces of land. One piece had a certificate of title while the other; held under customary tenure; had been purchased by the deceased from one Jovenanta Bakananukaki. The said Jovenanta Bakananukaki had also sold to the Appellant two other pieces of land adjacent to the one she sold to the late Rutsyamuka Yoosamu.

No one in the family obtained Letters of Administration for the Rutsyamuka's estate, but being assisted by the LC officials and chiefs ofthe area, the beneficiaries of the estate of the late Rutsyamuka Yoosamu, including the Appellant and Respondent, shared the land under the certificate oftitle, but the customary land remained undistributed.

It is stated that in 2005, the Respondent fenced off part of Rutsymuka's customary land and also part of his own land which he had bought from Jovenanta Bananukaki. It is for that reason that the Appellant sued the Respondent in the trial court.

The Respondent denied the Appellant's claims contending that he neither fenced off the Appellant's land nor the customary land left by their late father. Further, the Respondent contended that the untitled land left by their father had also been distributed among the beneficiaries and that the Appellant also got a share of the same. The trial court decided in favour of

**2**

the Respondent hence this appeal by the Appellant. I will resolve the grounds in the order and manner in which they were framed.

K.

# *Duty ofthefirstAppellate Court.*

It is called for to restate the duty of this court as the first appellate court. ¹ his was stated in the cases of *Selle vs Associated Motor Boat Company (1968) EA 123 at page 126; Banco Arabe Espanol vs Bank of Uganda, S. C. Civ . Appeal No. 8 of1998.* The duty is to subject the evidence to a fresh and exhaustive scrutiny, weighing conflicting evidence and drawing its own inferences and conclusions from it. In doing so, however, the Appellate court should bear in mind that it has neither seen nor heard the witnesses and should, therefore, make due allowance in that respect. The principles encapsulated in the aforestated duty will guide this court in the determination ofthe appeal before hand.

# *Resolution.*

# *Ground 1.*

# *The trial Magistrate was wrong to dismiss the Appellant's case when the Appellant and his witness had adduced sufficient evidence and proved the case on balance ofprobabilities.*

It is evident that in this ground, the Appellant invites this court to re-evaluate the entire evidence, without specifically pointing out the particular point or principle he wants court to address. M/s Katembeko & Co Advocates, Counsel for the Appellant submitted that Jovenanta Bananukaki (PW2) who sold the land to the Appellant stated that she erected a boundary after selling the two pieces of land and marked it, among other things, with *"migorora"* plants. That, however, the trial court faulted and disbelieved her evidence simply because court did not see these *"migorora"* plants when it visited the *locus in quo.* Counsel was ofthe view that the trial court was notjustified to

disbelieve her evidence on this ground as she had explained that the *migorora"* plants which were planted there were later removed or uprooted by the Respondent.

Counsel further submitted that the trial court was not justified in holding that the boundary marks pointed out by the Appellant to the court when it visited the *locus in quo* namely *"Biko" trees, "Muyenibe" tree, "Musha" tree* could not make boundary marks because, traditionally, they are not used as boundary marks. Counsel was of the strong view that there w'as no evidence adduced to prove or support existence ofsuch a tradition for the trial court to have relied upon it.

The Respondent's counsel Mr. Kwizera responded that the ground of appeal lacks merit, and he relied on *Section 101 ofthe Evidence A,ct* to the effect that whoever desires any court to give judgment to any right or liability dependant on the existence of facts which he or she asserts must prove those facts. That the Appellant alleged that the Respondent fenced his land but the Respondent denied the allegations. The Appellant then called PW2 Joventa Bananukaki to prove that fact, who told court that she had not gone to the land but that it was the Appellant who told her that the suit land had been fenced by the Respondent. Counsel was of the view that even without the trial court visiting the *locus in quo,* the evidence of the Appellant and his witness PW2 was below the standard of proving the fact of fencing off the suit land by the Respondent.

I will start with the point of the trial court making comments relating to tradition in absence of evidence to proving the same. The trial magistrate held *(at page 2 of the judgment}* that court had the benefit of visiting the *locus in quo* and the Plaintiff with his witness Joventa(PW2) did not show to the court the said *"Luyenje" or "Migorora"* they had talked about which formed the boundary. They instead showed some three *"Biko"* trees one

*Muyembe"* tree and one *"musha"* tree which formed the boundary. According to the trial magistrate's finding, this was different from what they had told the court.

The Defendant told the court at the *locus in quo* that the *"Biko, Kiyembe and Omusha"* trees grew wildly, and court agreed with him; reasoning that in Ankole *"Migorora"* and *''Luyenje"* are the trees commonly used as boundary marks. The Defendant also showed the court two very old *"Luyenje"* trees which he said formed the boundary of his father's land and that ofthe Plaintiff.

When the Plaintiff told the court that the two *"Luyenje"* trees were planted to restrain cows from straying, the trial court did not agree with him reasoning that *"Luyenje"* trees are usually used as boundary marks, and also that the two *"Luyenje"* trees could not prevent any cow from moving.

After considering the respective evidence and arguments of the parties and the law applicable, clearly the trial court was in error to draw from its own imagination, apparently basing on an unproven custom or tradition that *Biko, Muyembe and Musha* frees could not be boundary marks because in Ankore they are traditionally not used as such. There is no indication, whatsoever, that such a tradition has ever been taken judicial notice of or, that it has been proved before courts of law. Worse still, the trial court did not call for evidence to prove existence of such a tradition. This runs contrary to the provisions of*Section 46* of the *Evidence Act (Cap 6),* to the effect that:-

*"When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of that custom or right, of persons who would be likely to know ofits existence ifit existed, are relevant."*

**5**


A similar point of dealing with the issues of tradition and custom arose in the case of *MIFUMI vs Attorney General, Constitutional Petition No.l2of 2007,* where the custom of paying bride price in customary' marriage was being challenged in the Constitutional Court. Justice Mpagi Bahigeine J. A *(as she then was)* aptly stated that as follows:-

*"it is trite law that a party who alleges a custom has to prove it ... customs must be proved in the first instance by calling witnesses acquainted with them until the particular customs become so notorious that the courts take judicial notice of them without the necessity of proof in each individual case*

It was further observed in the *MIFUMI case* (supra) that courts must reach their decision to accept a custom on basis of evidence before them, and they cannot import knowledge from other sources. It is only by recognition ofthe custom by way of court decisions that entitles it to judicial notice and not otherwise.

Having stated as above it is, however, evident to me that the trial court did not base on the fact of the unproven tradition in the instant case, but relied on other evidence other than the issue of tradition to reach its findings. For instance, on page 3 paragraph 2 of the judgment the trial magistrate stated that:-

*"Although Joventa is the person who sold land to both the late Rutsyamuka and the plaintiff, I have not believed in her evidence. This is because she appeared to be a biased witness with the intention of telling the court lies. In her evidence, she told court that she saw where the defendant fenced and that the defendant encroached onto the land she sold to the plaintiff. However, in cross examination, she changed and said she did not go there to see but* *instead it is the plaintiff who came to her and told her that his land had been fenced.*

*That ifat all it is true thatpart ofhis land the defendant went ^a head to sell it to the church then how comes that he did not join the church of ^a co-defendant. And again, if at all the defendant uprooted his Luyenje trees, how comes that he did not report the matter to the policefor removing boundary marks.*

*The defendant produced 2 neighbours of the land in dispute Enos Nabimanya DW2 who is also the LC1 of the area and Dominiko Rutalo who all told the court that where the defendantput thefence is where the true boundary of the land between Rutsyamuka and the Plaintiff. "*

From the above extract, it shows that the trial court considered other evidence to reach its decision. The fact of the unproven custom or tradition was not the deciding factor or principle upon which the trial magistrate relied to reach its decision on the matter. Further re-evaluation of the *t* evidence on the record of proceedings also shows that what was stated in the judgment is a time reflection of what the witnesses stated in tlieir testimonies before the court. I have, however, not found evidence which tends to show that the Appellant proved his case on the balance of probabilities that the Respondent fenced off the Appellant's land. Therefore, this ground of appeal lacks merit and should fail.

# *Ground 2.*

*The learned trial court was wrong in law to accept and rely on the distribution ofthe estate ofthe late Yosamu Rutsyamuka, the father ofthe parties which was made by people who by law had no legal powers to do so and this error has caused substantial miscarriage ofjustice.*

**7**


The Appellant contends that the trial court relied on a document tendered as an *Exhibit "ED2"* by the Respondent dubbed *"Distribution of the Deceased's Land"* to make a finding that the Appellant also got a share of the late Rutsyamuka's estate, yet this document was only signed by the other beneficiaries acknowledging receipt of their own shares of the land, and the Appellant did not sign it. According to the Appellant this meant that he had not received his share of the land. Further that at the time of the distribution of the titled land by LCs and chiefs of the area it was decided and agreed that 11/6/2005 would be the date when the untitled hand would be distributed, but before that date, the Respondent fenced off the Appellant's land together with the pieces he had bought from Bananukaki (PW2).

The Respondent's counsel responded that the Appellant got his share of the untitled land and has no further claim. Further that when the trial court visited the locus in quo, it found evidence that the Appellant had got his share and was using the same.

When the evidence of the trial court was subjected to' further scrutiny, it emerged that, indeed, the untitled land in dispute was distributed to all the beneficiaries in equal shares. The Respondent attached to his Written Statement of Defence a document dated 11/6/2005 titled *"Distribution of property ofthe late Rutsyamuka Not in the land Title."* It shows that the distribution exercise was attended by twenty-one people who signed the said document. DW2 one Enoth Nabimanya the Chairman LC ¹ of Nombe Cell testified *(at page ⁷ of the copy of proceedings)* that after the death c-f Yosamu Rutsyamuka, the land which did not have a title was distributed by the Parish Chief who got the authority from the Sub-County Chief. The distribution was done together with residents of the area and the Plaintiff was present. The outcome of the distribution was reduced into writing, and was done after the Land Tribunal had granted them authority. The Plaintiff

iefused to sign the distribution document because he did not respect the LCs, but the Chairman signed.

fhe evidence also shows that on cross-examination by the Appellant/Plaintiff, DW2 stated in reference to the Plaintiff, as follows:-

*"You were present during the distribution. During the distribution you did not object to the distribution that it is your land being distributed. We distributed the land in equal shares. "*

I have also noted from the evidence on record that upon visiting the *locus in quo,* the trial court made an observation that the share of the untitled land of the late Rutsyamuka to the Appellant is there and still exists.

Flowing from the evidence on the record it would be futile, in my view, for the Appellant not to question the authority of the distribution of the titled land by the same people who distributed the untitled land, but then turn around and say they had no authority. The Appellant is estopped from taking such a recourse based on the principle that a party cannot approbate and reprobate in law. This ground of appeal fails.

# *Ground 3.*

*The court proceedings at the locus in quo on 4/2/2008 and 20/2/2008 substantial miscarriage ofjustice as the parties and other witnesses were not sworn before they testified, there is no record ofwhich witnesses who were present and there is no record ofthe observations which were relied on by the court while reaching its decision.*

In. this ground, the Appellant faults the tiial court for not making a record of its observations made at the *locus in quo,* and yet (in the last part f his judgment) the trial court heavily relied on observations, which do not appear on the record of proceedings. The other reason was that the witnesses were not first sworn at the locus in quo nor reminded that they were still on oath.

**'S3-** Foi their part, Counsel for the Respondent argued that the failure to remind the witnesses at the *locus in quo* did not occasion a miscarriage ofjustice, since they were only clarifying their evidence given earlier on 14/2/2008. When the record of the trial court was subjected to fresh scrutiny, I came across the following extract in the judgment ofthe trial court:"

# *"This court when it visited the locus saw part of the land given to the plaintiff on the un-registered land both in Nombe and in Rujunio ...."* ,

The above were the observations of the trial court at the *locus in-quo.* Also on pages 32, 39 and 42 of the original copy of the un-typed proceedings, there are sketch maps of the lands in dispute as seen and observed by the trial court when it visited *locus in quo.*

The purpose of courts visiting *locus in quo* was aptly summed up by *Sir Udo Udoma C. J* (R. IP.) in *Mukasa vs. Uganda [1964] EA 698 at page 700* which was cited with approval by the Court of Appeal ofUganda in *Matsiko Edward* v. *Uganda, Crim. Appeal No. ⁷⁵ of1999* that:-

*"^A view of ^a locus in quo ought to be, I think to check on the evidence already given and where necessary, and possible, to have such evidence ocularly demonstrated in the same way a court examines a plan or map or some fixed object already exhibited or spoken ofin the proceedings."*

Though the above excerpt is from a criminal case, the principles governing *locus in quo* visits by courts apply *mutatis mutandis* in civil matters, and as such, the statement of Sir Udo Udoma (R. I. P) is good law with regard to *locus in-quo* proceedings. The same principles were applied in *Yeseri Waibi vs. Elisa Lusi Byandala [1982] HCB 28 at pages 29 -30.* It was noted in the same case that where the claim had been proved by other evidence in court,

failure to observe the procedure at the *locus in quo* would not occasion a miscarriage ofjustice.

The witnesses in the instant case only needed to be reminded that they were still on oath since they had already testified in court and only needed to I ocularly demonstrate to court objects or evidence already spoken of in the proceedings. Applying the same holding as in the *Waibi v. Byandala case (supra),* I find that the failure to swear in the witnesses afresh at the start of the *locus in-quo* proceedings did not occasion a miscarriage ofjustice nor would it vitiate the proceedings, since all parties were given chance to examine the witnesses in question. I find the proceedings of*the locus in-quo* regular.

In the result, the appeal is dismissed with costs.

*BASHAIJA K. ANDREW*

*JUDGE*

*24/07/201.*

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### THE REPUBLIC OF UGANDA

$-55$

# IN THE HIGH COURT OF UGANDA AT MBARARA

HCT-05-CV-CA-0027/2008. (Arising from Ntungamo Civil Case No. 0038/2008)

**MWESIGWA JOHNSON**

$\cdots \cdots$

**APELLANT**

$v_s$

MUHUMUZA BENON

$\cdots\cdots\cdots$

**RESPONDENT**

### DECREE IN APPEAL

THIS matter coming on this day for final disposal before His Lordship BASHAIJA K. ANDREW, Judge, in the presence of Hilary Katembeko counsel for the appellant, both parties and absence of Peter Kabagambe counsel for the respondent; it is hereby ordered and decreed that the appeal is dismissed with costs.

GIVEN under my hand and the seal of this honourable court this $24^{th}$ day of July. $2012.$

THENRY TWINOMUHWEZI

ASSISTANT REGISTRAR

EXTRACTED BY: M/S KWIZERA & CO. ADVOCATES. P. O. BOX 1474. <u>MBARARA</u>.

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