[2023] UGHCLD 356

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT HOIMA**

### **CIVIL APPEAL NO. 42 OF 2023**

### **(Formerly MSD Civil Appeal No. 0046 of 2013)**

(Arising from C. S No.4 of 2009, Chief Magistrate's Court of Hoima at Kagadi-Kibaale)

### **YAKOBO RUTALIHAMWE :::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**ASAPH SSEBUGWAWO :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **JUDGMENT**

[1] This is an appeal from the judgment and orders of H/W Teko Lokeris, Magistrate Grade 1 of Hoima Chief Magistrate's court at Kagadi-Kibaale dated the 26th of September 2013.

## **Back ground of the Appeal**

- [2] The Respondent/plaintiff sued the Appellant/defendant for trespass and encroachment on his land comprised of **Block 48 Plot No.5 (later renumbered as plot 90) measuring 2.787 hectares in Mohorro Trading Centre (Kisweka)** (herein after referred to as the suit land) and sought for orders declaring that he is the rightful owners of the suit land, an eviction and transfer of vacant possession, permanent injunction restraining the defendant and his assignees from further trespassing on the suit land, general damages for trespass and costs of the suit. - [3] The Appellant/defendant on the other hand does not dispute that the Respondent/plaintiff is the registered proprietor of the suit land as comprised in **Block 48, Plot No.5 (later re-numbered as plot 90**). He

however contended that the land on which he constructed a permanent house is on **plot No.6** which does not form part of the land of the Respondent/plaintiff which is on **plot 5.** That he bought the subject land from **M/s. Muhigi Yokana** and **Samwiri Bujwera** in 1970 and has since buried thereon his parents, children and relatives and has stayed on the land peacefully without any 3rd party claims until 2008, when the Respondent/plaintiff started claiming it.

- [4] The trial Magistrate on his part, upon hearing the suit and evaluating the evidence before him, he found that the Respondent/plaintiff is the registered owner of the suit land and that the Appellant/defendant was occupying land as a neighbour of the Respondent/plaintiff but sometime after 2009, he extended construction of his house into the land of the Respondent/plaintiff by moving away butcher kiosks, thereby encroaching on the Respondent/plaintiff's piece of land described in the certificate of title. - [5] The trial Magistrate concluded giving judgment in favour of the Respondent/plaintiff with orders that the Appellant/defendant vacates the portion of land he trespassed upon measuring **10ft by 20ft** and costs of the suit. - [6] The Appellant dissatisfied with the whole judgment and orders of the trial Magistrate lodged this appeal on the following grounds as contained in his memorandum of appeal. - *1. That the learned trial Magistrate erred in law and in fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong decision that the suit land belongs to the Respondent.* - *2. That the learned trial Magistrate erred in law and in fact when he totally disregarded the Appellant's evidence thereby arriving at a wrong decision that the Respondent had proved his case on the balance of probability that he owned the suit land.* - *3. That the learned trial Magistrate erred in law and fact when he relied on extraneous matters in reaching his decision and thereby arriving at a wrong decision.* - *4. That the learned trial Magistrate erred in law and in fact when he failed to address himself as to the correct procedure to be followed at*

locus in quo when he totally disregarded the evidence and observations on visiting the locus in quo.

# **Counsel legal representation**

$[7]$ On appeal, the Appellant was represented by **Mr. Simon Kasangaki** of **M/s Kasangaki & Co. Advocates, Masindi** while the Respondent was represented by Mr. Peter Mugimba of Alliance Advocates, Kampala and later by Mr. James Byamukama of Byamukama, Kaboneka & Co. **Advocates, Kampala.** Both counsel filed their respective written submissions as directed by this court for consideration in the determination of this appeal.

# Duty of the $1^{st}$ Appellate court

- [8] As rightly submitted by both counsel in this appeal, the duty of the $1^{st}$ Appellate court is to review the record and evidence for itself in order to determine whether the decision of the trial court should stand. In so doing, court must bear in mind that an appellate court should not interfere with the discretion of a trial court unless it is satisfied that the trial court in exercising its discretion has misdirected itself in some matter and that as a result, there has been a miscarriage of justice; **Stewards of Gospel** Talents Vs Nelson Onyango, HCCA No.0.14 of 2008. - This being an appeal from the Magistrate Grade 1, as a $1^{st}$ Appellate court, $[9]$ this court has a duty to re-evaluate the evidence adduced before the trial court as a whole by giving it fresh and exhaustive scrutiny and then draw its own conclusion of fact and determine whether on the evidence the decision of the trial court should stand, See Fr. Narsensio Begumisa & Ors Vs Eric Tibebaga SCCA No.17/2002 [2004] KALR 236. - [10] In the instant case, both counsel argued grounds 1, 2 and 3 together and ground 4 separately. The decision of this court shall follow the same order since the $1^{st}$ , $2^{nd}$ and $3^{rd}$ grounds of appeal resolve around how the trial court evaluated the evidence before it.

# **Grounds 1,2 & 3; Evaluation of Evidence**

- [11] As a starting point for this appeal, it is important to note the following; - a) On the 26/11/2014, the Appellant filed an application vide **M. A No.139/2014** to adduce additional evidence during this appeal to the effect that the Respondent had, in fact sold the suit land to neighbours prior to the court case and that in the premises, the Appellant be allowed to adduce additional evidence in form of land sale agreements showing that the Respondent (though registered as owner) had sold the entire land on which the suit land is situated prior to institution of the case. That therefore, the Respondent having sold the said land, had no cause of action against the Appellant/defendant. The trial judge **Justice Byabakama Mugenyi Simon** (as he was then), dismissed the application with costs. - b) 2ndly, during the appeal, on the application by the Appellant, court ordered that a surveyor should open boundaries of the suit land. This was done and a copy of the surveyor's Report (Meridian Surveyors) dated 2/9/2014 is on the court record. The Report shall be considered in the consideration of this Appeal.

# **Submissions of counsel**

- [12] Counsel for the Appellant submitted that the unchallenged evidence of the Appellant/DW1 was that the Respondent/plaintiff is his neighbour and the disputed portion of land is measuring approximately 100 x 150m. having purchased it in 1976 from a one **Samwiri Bujwera** and **Yokana Muyigi** on 9/4/1976 and that the land is comprised on **Muyigi's certificate of title, Block 48, Plot 6.** That had the trial Magistrate properly evaluated the evidence on record not disregarding the Appellant's evidence, he would have not held for the Respondent. - [13] Counsel for the Respondent on the other hand submitted that the Survey Report on record dated 2/9/2014 confirms that the Appellant's structures do encroach on the suit land. That the survey was conducted in the presence of both parties and during cross examination, the surveyor reaffirmed the encroachment on the suit land by the Appellant. He concluded

that the trial court properly evaluated the evidence on record and came to a proper decision in the suit.

# **Determination of the Appeal**

- [14] From both the Appellant and the Respondent's evidence on record, it is apparently clear that it is not in dispute that the Respondent is the registered owner of land comprised in **Block 48, plot 5 (later re-numbered on plot 90) situate at Mohorro Trading Centre (Kisweka) Buyaga, Kibaale District** and the Appellant purchased a piece of land measuring **50ft by 140/160ft** from 2 people; a one **Samwiri Bujwere** (which contained a house) and **Yokana Muyigi,** who was the registered owner of **Block 48,plot 6** (D. Exh.1&2) whereon the Respondent's land is situate. He stated that both lands neighbour each other. - [15] What appears to be in contention as explained by **Bamuturaki Yayira** (PW4), is that during the extension of his house on plot 6 which the Appellant found and purchased on the land comprised on **Block 48 plot 6**, he extended into the Respondent's land as comprised on **Block 48 plot 5.** To resolve the impasse, both parties agreed that the Respondent's undisputed land comprising of **plot 5** have its boundaries re-opened by a surveyor. This was done and the observations of the surveyor relevant to this appeal were as follows; - i. Initially, the land under review was described as plots 5 and 6 with a common boundary between them. - ii. Plot 5 was subdivided into plots 89 and 90. - iii. As per the surveyor's mapping (see index diagrams 1&2) the survey boundary between plots 5 and 6 is defined by 2 lines;G-11 and H-E. - iv. Conclusion: **The dividing lines between plot 5 and 6 cuts through Houses 1,5 and 4 meaning that House 1 in plot 89 encroaches on plot 6, the Kibanda (structure 5) and the permanent house 4 encroaches on plot 5.** - [16] It is clear as per the Surveyor's report that **House No.1** in **plot 89, (formerly plot 5 before the subdivision)** encroaches on **plot 6**. However the encroachment on **plot 6** was never an issue in the lower court and indeed on appeal. The report further disclose that **structure No.5**

(Kibanda) and **House No.4** both in plot 6 encroaches on **plot 5** though the encroachment by **House No.4** is described as **slight**. It is however, both the **Kibanda structure No.5** and the **House No.4** that are in contention. Upon purchase of the land measuring 50 x 140ft from **Bujwere** by the Appellant, it had **House No.4** but during the extension of this house, the Appellant encroached on the Respondent's land comprised in **plot 5**.

- [17] In my view, the above report sufficiently disposed off the dispute as regards the alleged trespass. The Appellant's **Kibanda Structure No.5** extended into the Respondent's land by **13 x 19ft** while the extent of the encroachment during the extension of **House No.4** was found **"slight"** and therefore negligible. It is my finding therefore, that the extension of the kibanda (structure No.5) and House No.4 by the Appellant into the Respondent's portion of land, however slight it amounted to trespass. - [18] In the premises, I find that the Respondent established the fact that the Appellant trespassed upon his land within the definition of trespass as defined in **Justine Lutaaya Vs Sterling Civil Engineering Co. SCCA No.11/2002** since the Appellant's entry was unauthorised and interfered with the Respondent's possession of the suit land. - [19] As a result of the above, I find no reason to fault the trial Magistrate on how he evaluated the evidence before him to find trespass in favour of the Respondent. Grounds **1, 2** and **3** are found devoid of any merit and they accordingly fail.

## **Ground 4: The procedure at locus.**

[20] Counsel for the Appellant submitted while relying on the authority of **Yeseri Waibi Vs Edisa Byandala [1982] HCB** that the purpose of visiting locus in quo is for court to check on evidence given by witnesses and not to fill gaps lest the trial Magistrate runs the risk of making himself as a witness in the case. That in the instant case, there was no locus visit conducted by the trial Magistrate because, how the purported one was conducted, was devoid and in breach of the well laid down procedure of conducting locus, for example, while relying on **David Acar Vs Alfred** **Aliro [1982] HCB 60,** argued that the defendant's witnesses were not called upon locus to affirm their testimony.

- [21] Counsel concluded that the trial court failed to conduct the locus in quo according to the prescribed principles and wrongly evaluated the evidence at locus in quo thereby leading to a miscarriage of justice to the Appellant. He therefore prayed for the appeal to be allowed with either an order for retrial or declaration that the disputed land belongs to the Appellant and that the Respondent is a trespasser thereon, in the event that the evidence on record exclusive on the locus proceedings is found sufficient to dispose of the matter. - [22] Counsel for the Respondent on the other hand submitted that the trial Magistrate did conduct a locus visit before coming to a final determination of the suit. That the alleged errors in the procedure have not been substantiated by the Appellant. That whatever lapses may have occurred, they did not have a substantial effect on the final decision of the court. - [23] Indeed, I find that the trial Magistrate visited the locus in quo on 2/10/2012 and the locus record proceedings reveal that both parties and others including the L. C1 chairperson of the area **Mr. Bamuturaki Yayiro** (PW4) were present. It was therefore the duty of the Appellant to ensure presence of his witnesses at locus if he wished to have them for purposes of clarifying on what they stated in court. - [24] In the instant case, since the Appellant was present at locus and was given an opportunity to clarify on what he and his witnesses stated in court, the Appellant's witnesses' absence, if at all they were absent, did not occasion any miscarriage of justice to the Appellant. - [25] 2ndly, though it is true that the conduct of the locus visit by the trial Magistrate was not all that satisfactory especially as regards the absence of the measurements of the extent of the trespass, I find that this did not prejudice the Appellant since the High Court on appeal, ordered for the opening of the boundaries of the Respondent's land vis a vis that of **Yokana Muyigi** which comprised the Appellant's interest. The surveyor **Mr. Caleb Mwesigwa** adduced ample evidence regarding the trespass and

its extent. I therefore find that the lapses and omission by the trial Magistrate during the conduct of the locus in quo especially his failure to determine the extent of trespass, did not prejudice the Appellant and therefore, there wasn't any miscarriage of justice occasioned. The trial Magistrate's omission was cured by the Survey Report as boundaries of the suit land were opened.

- [26] In conclusion, the trial Magistrate found that the Appellant trespassed into the Respondent's land by **10 x 20ft.** There is however no evidence on record or during locus proceedings as to how he arrived at this size of the allegedly encroached on portion of land. However, the surveyor **Caleb Mwesigwa** found the Appellant's kibanda **structure No.5** extended into the Respondent's land **by 4 x 16 meters (13 x 19ft) while House No.4** extended **"slightly"**. - [27] In my view, as rightly described by the surveyor, the encroachment brought about by the extension of the house being slight and therefore negligible, such would be ignored and I proceed to ignore it. However, in the premises that the trial Magistrate found that the Appellant trespassed into the Respondent's land by **10 x 20ft** which is approximately or less than **13 x 20ft** found by the surveyor, in the absence of any cross appeal by the Respondent regarding the size of the decreed portion of land, I find no reason to interfere with the Magistrate's finding regarding **10 x 20ft** as the size of the portion of land the Appellant trespassed into on the Respondent's land. - [28] In the result, I find the 4th ground of appeal also devoid of any merit. The judgment and orders of the lower court are upheld. The entire Appeal is in the premises dismissed with costs.

Dated this 28th day of July, 2023

**Byaruhanga Jesse Rugyema JUDGE**