[2023] UGHC 506

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**HOLDEN AT MBALE**

**CIVIL APPEAL NO. 153 OF 2018**

**ARISING FROM CIVIL SUIT NO. 004 OF 2011**

**OKOTH OWOR :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**SUNDAY MUVAWALA :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: HON JUSTICE SUSAN OKALANY**

**JUDGMENT**

**INTRODUCTION**

1. The appellant filed Civil Appeal No. 153 of 2018 against the decision of Her Worship Kaibei Cherotich, Magistrate Grade one Tororo, delivered on 10th September 2018, seeking for the following orders: 2. That the appeal be allowed; 3. That the orders in the court below be set aside; 4. That judgment be entered for the appellant here and in the court below; and 5. That the appellant be granted costs here and in the court below. 6. The Grounds of this appeal are that: 7. The learned trial magistrate did not evaluate the evidence properly or at all and as a result she reached a decision, which is unsupportable; 8. The decision of the learned trial magistrate is tainted with fundamental misdirection in law and in fact; 9. The decision of the learned trial magistrate is against the weight of evidence; and 10. The decision of the learned trial magistrate has occasioned a miscarriage of justice.

**BACKGROUND**

1. The respondent/plaintiff sued the appellant/defendant in the lower court and prayed that the appellant gives vacant possession of 3 ½ acres of land to him and that the appellant, his agents and servants be restrained from entering the respondent’s land. He also prayed for the costs of the suit. His claim against the appellant was for a piece of land measuring 3½ acres of land in Poyem “B” zone, Iyolwa Sub County, Tororo District, which was sold to him on 20/3/1993 by the deceased. According to him, the appellant had on several occasions trespassed on his land. 2. The appellant in his written statement of defence stated that he was the manager of the estate of the late Olowo Obunde (hereinafter referred to as the deceased). He bought a piece of land measuring 1 ½ acres from the deceased way back in 1993 and it was not measuring 3 ½ acres as claimed by the respondent. The sale agreement in respect of the suit land, which the respondent was basing on to claim ownership of the land was being challenged by its author Jawor Peter in a court of law, vide Criminal Case No. 215/2010. He prayed that the court dismisses the suit. 3. At the hearing, the respondent testified as PW1 and produced two other witnesses in support of his case, namely: Kirawira Nyachwo as PW2 and Opendi Muvawala as PW3. The appellant testified as DW1 and called four witnesses to support of his case, namely: Peter Jawor who was DW2, Paulo Yowana Ofwono who was DW3, Jane Nyachwo who was DW4 and William Obela who was DW5. 4. Three issues were framed for determination in the lower court as follows: 5. What was the size and boundaries of land that the deceased sold to the Plaintiff? 6. Whether the suit land is part of that land that the deceased sold to the Plaintiff. and 7. What remedies are available to the parties? 8. Regarding the first issue, the learned trial magistrate believed the testimonies of the respondent and all his witnesses who testified that the suit land was bordered by the lands of Vincent Akol in the north, Yowana Ofwono in the south, Sunday Muvawala in the east and a swamp in the west. She found the respondent’s evidence more believable than the appellant’s witnesses, with the exception of Jane Nyachwo (DW4) who testified that the land of the deceased bordered the suit land in the west. She further held that the allegation that the agreement in the respondent’s possession is a forgery was unfounded and was not backed by evidence, as the DPP had closed the forgery case against him. 9. Concerning the 2nd issue, the learned trial magistrate held that since she had resolved the first issue in the affirmative, the suit land was part of the land bought by the respondent from the deceased. 10. In respect of the 3rd issue, the trial magistrate declared the respondent the owner of the suit land, who was entitled to a peaceful and quiet possession of the same. She issued a permanent injunction restraining the appellant and/or his agents from trespassing on the suit land or interfering with the respondent’s possession in any way. Also, general damages of 3,000,000/= were awarded to the respondent as well as the costs of the suit.

**REPRESENTATION**

1. In this appeal, the appellant was represented by Mr. Deo Gracious Obedo, while the respondent was represented by Mr. Yusuf Mutembuli.

**SUBMISSIONS OF COUNSEL**

***Arguments in support of the appeal***

1. Mr. Obedo chose to argue all the grounds of appeal jointly. He submitted that the learned trial magistrate did not evaluate the evidence on record and ignored the appellant’s oral and documentary evidence on the fact that the deceased had sold 1½ acres of land to the respondent finding instead that the respondent had purchased 3½ acres of land, which acreage of land was not mentioned in both sale agreements tendered in court. He wondered how the trial magistrate had arrived at the decision that the vendor of the suit land had sold 3 ½ acres of land to the respondent, given the fact that she did not determine the size of the disputed land. 2. Mr. Obedo further submitted that the trial magistrate wrongfully held that DW4’s testimony to the effect that the land sold to the respondent was bordered by a swamp in the west corroborated the testimonies of the respondent’s witnesses. According to him, DW4’s said testimony was a minor contradiction, considering the fact that she had confirmed that the size of land that her father (the deceased) had sold to the respondent measured only 1 ½ acres. 3. Counsel submitted that the author of the sale agreement adduced by the respondent was Jawor Peter (DW2) who testified that he did not know about the said agreement but only knew about the sale agreement adduced by the appellant, which agreement was admitted in evidence as DEX1. Mr. Obedo, noted that the learned trial magistrate had only relied on the evidence of the DPP’s withdrawal of charges of forgery and uttering a false document in reaching her decision that there was no forgery and had therefore wrongfully relied on the respondent’s agreement admitted as PEX1. 4. He submitted that PEX1 had irregularities, regarding its execution, including the fact that one of its signatories was a seven-year-old child and also that DW2 had denied authoring the said agreement. Counsel averred that the respondent did not bring other witnesses to support the execution of PEX1 and yet the trial magistrate went ahead and relied on it, instead of relying on DEX2, the agreement tendered in evidence by DW2.

***Arguments for the Respondent/Plaintiff***

1. Mr. Mutembuli chose to argue grounds 1, 2 and 3 jointly, and argued ground 4 separately. He submitted *inter – alia* that the respondent’s evidence was well corroborated, which was the reason for the trial magistrate’s decision. He averred that the respondent’s evidence about his purchase of the suit land was corroborated by the testimony of PW3 to the effect that the suit land was bought in 1993 and the original sale agreement was given to the respondent, while the vendor retained the carbon copy. He discussed the testimony of PW2 concerning his statement that the suit land was purchased by the respondent in 1993 and that since then, the respondent had stayed on it. Counsel pointed out the fact that the said witness told the court that she was permitted by the respondent to cultivate crops on part of the suit land and that her father (the deceased) had informed her that he had sold 3 ½ acres of land to the respondent. The respondent’s counsel also discussed PW2’s testimony, which corroborated the respondent’s evidence that he had bought another piece of land from Oyango Maliri in 1992, prior to purchasing the suit land and that he had joined the two pieces of land together to make one piece. 2. Mr. Mutembuli commented on the appellant’s evidence found on page 21 of the record of proceedings, particularly his statement that the respondent’s possession of the suit land was never disputed by Simon Ofwono Obunde, the brother to the deceased and that the piece of land sold to the respondent was not measured when it was sold, but only estimated to be 1 ½ acres. Counsel submitted that DW2 had corroborated the respondent’s evidence by saying that the respondent was given the original sale agreement while the vendor retained the carbon copy. The appellant’s counsel mentioned that on page 24 of the proceedings of the trial court, the witness had told the court that the carbon copy of the agreement (DEX1) had original thumb prints. Counsel contended that it was impossible for a carbon copy of a document to have original thumb prints. He therefore asked this court to find that DEX1 is a forgery. 3. Furthermore, Mr. Mutembuli submitted that the appellant’s evidence was contradictory, especially the testimony of DW3 who said that he was not present during the execution of the land sale agreement in 1993, as he was in Buganda at the time but also testified that the boundaries of the suit land where planted in his presence, which latter statement was inconsistent with his earlier claim that he was in Buganda when the sale of the suit land happened. 4. Counsel asked this court to consider the fact that there was evidence on the record to prove that the respondent was in possession of the suit land and that PW2 who is the daughter of the deceased and who was living in the neighboring village, was cultivating crops on the suit land and also the fact that no dispute existed between the deceased and the respondent. 5. Mr. Mutembuli additionally submitted that the evidence DW4 also contradicted what other defence witnesses said when she testified that the deceased had showed his children the boundaries of his land that the piece of land that the deceased sold to the respondent was bordered by a river in the west. 6. He noted that while DW5 claimed that he was present during the sale transaction in issue, his name did not appear on the list of witnesses to the agreement. Mr. Mutembuli maintained that while all the witnesses to the land sale transaction testified that the original agreement was handed to the respondent, none of them told the court the fact that its carbon copy was given to DW2, who tried to challenge the said original agreement in the respondent’s possession on a false charge of forgery, which charges were eventually withdrawn by the DPP who realized that the said agreement (PEX1) was a genuine one authored by DW2. 7. Counsel averred that the appellant did not have any beneficial interest in the suit land as he was not a son or dependent of the deceased nor is he the administrator of the estate of the deceased, but was a stranger with no claim or interest in the suit land. He maintained that the trial magistrate had properly evaluated the evidence on record and asked this court to find that grounds 1, 2 and 3 of the appeal fail. 8. Regarding ground 4, Mr. Mutembuli submitted that the evidence on record shows that the suit land was purchased by the respondent and the appellant did not have any right or authority to challenge the respondent’s ownership of it. He concluded that the trial magistrate reached a proper decision by correctly evaluating the evidence on record and therefore had not occasioned any miscarriage of justice. He prayed that this honorable court dismisses the appeal with costs.

**DETERMINATION**

1. I have carefully considered this appeal, the proceedings and decision of the lower court, the submissions of counsel and the law applicable. This court is mindful of its duty as the first appellate court to reconsider the evidence, evaluate it and draw its own conclusions, bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. 2. Since grounds 1, 2 and 3 of the appeal relate to evaluation of evidence and ground 4 concerns the issue whether or not a miscarriage of justice was occasioned, I will apply the approach taken by Mr. Mutembuli in resolving the appeal.

***Grounds 1, 2 and 3***

***Ground 1 – The learned trial Magistrate did not evaluate the evidence properly or at all as a result of which she reached a decision, which is unsupportable.***

***Ground 2 - The decision of the learned trial Magistrate is tainted with fundamental misdirection in law and in fact.***

***Ground 3 - The decision of the learned trial Magistrate is against the weight of evidence.***

1. The crux of Mr. Obedo’s contention was that in failing to evaluate the totality of the evidence of the parties, the trial magistrate had wrongfully found that the respondent had purchased land measuring 3 ½ acres and had rejected the true agreement (DEX1) and instead accepted PEX1 as the authentic agreement and yet it had irregularities and did not show the actual acreage of the piece of land that was sold to the respondent by the deceased. 2. On the other hand, it was Mr. Mutembuli’s submission that the trial magistrate had rightfully relied on PEX1, a document that all parties’ witnesses had confirmed to have been given to the respondent. He further submitted that the charges of forgery and uttering of a false document that were brought by the state against the respondent in regard to PEX1 were withdrawn by the DPP. He asked this court to reject DEX1for being a carbon copy with original thumbprints, which meant that it was not a carbon copy of an original agreement but was actually a fake document. 3. It is a requirement under ***Section 66 of the Evidence Act*** for the signature and handwriting of person alleged to have signed or written document to be proved to be in his or her handwriting. The respondent’s oral evidence was that DW2 authored PEX1. The appellant also led oral evidence to prove his claim that PEX1 is a forgery, although none of his witnesses testified about the fact that they were acquainted with the handwriting or signature of DW2 who had himself denied authoring the said agreement. No handwriting expert was produced by the appellant to support the witness accounts that DW2 was not the author of PEX1. In my considered opinion, it was necessary in this case for the appellant who was challenging the veracity of PEX1 to have an expert witness examine the handwriting and signature on PEX1 attributed to DW2 as well as the signatures of other witnesses on the said agreement and compare the same with sample signatures obtained from DW2 and any other relevant witnesses so as to establish to the required standard, the allegation of forgery of PEX1. The court obtained sample signatures from DW2 who denied being the author of PEX1 for forensic examination and directed that upon examination of the same, a forensic expert would then be called upon to present his findings in court as the respondent’s witness, who would be cross-examined by the appellant. Apparently, the respondent did not comply with the order of the court. 4. Alternatively, the requirements of ***Section 45 of the Evidence Act*** should have been followed. None of the appellant’s witnesses said that they were well versed with DW2’s handwriting and that from their familiarity with his handwriting and signature, he had not written PEX1. The said section of the ***Evidence Act*** stipulates: 5. *When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact.*

*Explanation — A person is said to be acquainted with the handwriting of another person when he or she has seen that person write, or when he or she has received documents purporting to be written by that person in answer to documents written by himself or herself or under his or her authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him or her*.

1. ***Section 72 of the Evidence Act*** provides for comparison of signatures, writings or seals with others admitted or proved. It provides that:

*(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.*

*(2) The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person.*

*(3) This section applies also, with any necessary modifications, to finger impressions.*

1. The court should have moved itself under the provisions of ***Section 72(2) & (3)*** ***of the Evidence Act*** above cited, in the absence of the opinion of a handwriting expert and directed DW2 who was said to be the author of PEX1 and who had denied authoring it, to write down sample words which it would compare with the writings in PEX1. Even so, the burden to prove that fact that PEX1 was a forgery lay squarely on the appellant who was alleging that it is a false document. See ***Sections 101 and 102 of the Evidence Act.*** 2. It is important to note that all the witnesses of the parties testified that when the sale agreement was executed, the original document was given to the respondent. PEX1 that was tendered by the respondent as the sale agreement was an original document. DEX1 is a carbon copy of an original sale agreement. DW2 the uncontested author of DEX1 in his testimony stated that when he wrote the agreement in Thopathola, the witnesses of the sale agreement placed their thumb prints on it and others signed it. He used carbon paper to create a copy of the agreement from the original. In his cross-examination, he testified that it was the vendor who gave him the carbon paper that he used to make the copy (DEX1) of the sale agreement. 3. Mr. Mutembuli’s contention in respect of DEX1 was that it was impossible to figure out how a carbon copy that is supposed to be a typical replica of an original document could have freshly marked thump prints all over them. The appellant and his witnesses did not explain how the fresh thumbprints came to exist on a secondary document, although it seems to me that if finger impressions are made on a carbon copy, they cannot be legible and that should have been the reason that thumbprints were directly embossed on the carbon copy. The appellant testified that it was the deceased who brought the carbon paper and that the original document was given to the respondent and a copy was retained by the deceased. 4. Also, the appellant’s testimony regarding the execution of the sale agreement was that he signed DEX1 and could identify it, he however admitted that he could not read or write and so he could not point out his name on it. He knew the document only by appearance. From his testimony, it cannot be said that the appellant is sure that the document he signed was DEX1. He did not describe the key features that enabled him to identify the agreement that he could not read, being illiterate in the language that was used to make it. In those circumstances, there was a need for the signatures and thumbprints of the said document to be proved to belong to the maker and the witnesses who endorsed it by way of forensic analysis. Thus, I think that the appellant has failed to establish the authenticity of DEX1 on a balance of probabilities. 5. However, as I noted above, it was necessary for the trial court in this case where the parties had produced conflicting sale agreements alleged to be forged by the opposite side, to ensure that the disputed documents were submitted for forensic analysis and that the parties bearing the burden to prove the veracity of the documents produce the handwriting and/or fingerprints experts to court to give the required opinions and that even when no such experts attend court, the court had the power to move itself under ***Sections 45 and 72 of the Evidence Act*** in order to satisfy itself about the veracity of the disputed agreements. 6. That omission by the trial court notwithstanding, there is sufficient evidence on record that supports the reliability of the respondent’s case vis-à-vis the appellant’s case, confirming the credibility of PEX1. It was the opinion of the learned trial magistrate that the suit land was 3½ acres. While PEX1 does not show the acreage of the piece of land that was sold to the respondent by the deceased and despite the fact that the court did not ascertain the extent of the land when it visited locus in quo, the respondent’s evidence is consistent concerning the ownership of the lands that border the suit land, that is to say that the said adjoining lands belong to Vincent Osinde Akol in the north, Paulo Ofwono Yowana in the south, the respondent in the east and Malawa swamp in the west. The trial court rightfully found that the said evidence was corroborated by DW4. 7. Also, the testimonies of PW2 and DW4 who are siblings confirm that their father, (the deceased) sold the suit land to the respondent and it was measuring 3 ½ acres of land, which was bordered by a swamp in the west. On page 13 of the record of proceedings PW2 testified that the deceased informed all his children that he had sold land to the respondent. This aspect of her evidence was corroborated by the DW4 in her testimony recorded on page 31 of the record of proceedings, when she stated that the deceased had shown his children the peace of land that he sold to the respondent, including its boundaries. I find that the description of adjoining lands to the disputed as stated in PEX1 is corroborated by the testimonies of the respondent’s witnesses as well as DW4, the appellant’s own witness. 8. Mr. Obedo submitted that it was a minor error for DW4 to state that the suit land was bordered by a swamp. I respectively disagree. The testimony of PW2 supports DW4’s said evidence and the witnesses are siblings. 9. Mr. Mutembuli pointed out that the appellant’s evidence was contradictory, especially the testimony of DW3, when he said as per page 26 of the record of proceedings that on returning from Buganda, he was approached by the deceased, the appellant and the respondent who informed him that the deceased was selling land and yet he had earlier on told the court that when the deceased sold the land, he was not present. 10. Mr. Mutembuli’s argument in regard to the said testimony was that it was unreliable because it was uncertain regarding whether DW3 witnessed the said sale transaction or not. I do not buy counsel Mutembuli’s agreement in that respect. The testimony of DW3 was that when the respondent purchased the suit land, he was in Buganda. He returned afterwards and the deceased and the appellant approached him and informed him that they were selling land to the respondent, which decision he accepted and the boundaries of the land were planted. It seems to me that the witness was categorical about not having been present at the execution of the agreement, although he later learnt about it and participated in the demarcation of boundaries. 11. What I find to be inconsistent and going to the root of the case is the evidence of DW4 regarding the piece of land that was sold to the respondent by the deceased. She testified that the deceased himself showed her and her sisters the piece of land that he had sold to the respondent, and that it was approximately 3½ acres. Later on, she stated that the said land measured 1½ acres. Subsequently in her cross examination she contradicted herself when she said that it was when she was shown the sale agreement (DEX1) which the deceased had made with the respondent that she learnt about the boundaries of the land in issue. She also admitted that she didn't know how to read and write, but was only made to understand who the owners of the adjoining land to the land in issue were by DW2 the author of the said agreement, when he read the agreement to her in 1993. Basically the witness contradicted herself materially on a fact about the extent of the land alleged to have been sold by the deceased. I find that she lied to the court therefore, and that lie corroborates the respondent’s case. 12. In any case, the appellant had no locus bringing the suit against the respondent, given the fact that he was not a party to the transaction between the deceased and the respondent, although he mentioned that he was made heir of the deceased’s estate. He produced no letters of administration of the said estate to support his right to bring the suit against the respondent. 13. It is noteworthy that DW5 in his cross examination on page 32 of the record of proceedings admitted that the respondent was using the land in which the deceased was buried and that the respondent bought the said land after the death of deceased, although the witness did not know from whom the respondent had purchased the land. In my view, his evidence in that regard confirms that fact that the respondent did not just purchase the land, but had remained in its possession of it undisturbed. 14. Furthermore, the testimony of DW3 corroborated the testimony of PW2 that she was cultivating crops on part of the suit land, having obtained the permission of the respondent to use the land. 15. In light of my discussion above, I find the respondent’s evidence more plausible compared to the appellant’s evidence. I think that the trial magistrate correctly evaluated the evidence on record in its totality and came to a proper decision. Grounds 1, 2 and 3 therefore fail.

***Ground 4 - The decision of the learned trial Magistrate has occasioned a miscarriage of justice.***

1. It is trite that a decision causes a miscarriage of justice where there is a prima facie case that an error has been made in arriving at it.***(See******Matayo Okumu vs Fransisko Amudhe & 2 Others (1979) HCB 229).***From my assessment of the evidence of record and the decision reached by the learned trial magistrate, no miscarriage of justice occasioned to the appellant. Ground 4 fails too. 2. In the result, the appeal is denied and costs of the appeal and those of the court below are awarded to the respondent.

I so order.

Susan Okalany

**JUDGE**

**1st November 2023**