[2024] UGHC 945

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL APPEAL NO. 37 OF 2024 (Formerly, MSD C. S No.33 of 2021)

(Arising from Kagadi, C. S No. 15 of 2017)

SEMAMBO EDWIN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. BYARUHANGA MARTIN

#### 2. SUNDAY ERIC

3. BIRUNGI MATIA :::::::::::::::::::::::::::::::::::

[An appeal from the judgment and Orders of Magistrate Grade 1, Kagadi Grade 1, Kibaale Chief Magistrate's Court in C. S No.15 of 2017 delivered on 2/6/2021]

### Before: Hon. Justice Byaruhanga Jesse Ruavema

### **JUDGMENT**

### **Background**

- The Appellant/plaintiff Semambo Edwin instituted Kagadi C. S No.15 of 2017 $[1]$ against the Respondents, Byaruhanga Martin ( $1^{st}$ Respondent), Sunday Eric (2^nd Respondent) and **Birungi** (3^rd Respondent) jointly for trespass, fraud, orders for vacant possession, permanent injunction and special damages arising from destruction of natural trees, general damages and costs of the suit. - It was the Appellant/plaintiff's case that in 1963, he inherited a piece of land $[2]$ (disputed land) situate at Kyamukuma-Kyamayenda village on the titled land of a one **Zirimenya Kwebeya** from his late father a one **Kezironi Kaparaga** by way of a WILL in which the land was bequeathed to him and his late brother, the late **Kezekia Bachwa** who died in 1966. That the Appellant/plaintiff and his family have always been in physical possession of the suit land and developed it with coffee, trees and grazing.

- The Appellant contended that the 1^st Respondent without any colour of right $[3]$ fraudulently sold the suit land totaling to 6 acres to the $2^{nd}$ and $3^{rd}$ $\tilde{\mathbf{u}}$ Respondents who were purporting to buy land in the names of Kagadi sub county out of which the 1^st Respondent retained about $2^{1/2}$ acres of the land. - The Appellant particularized fraud to include the effecting of the transaction $[4]$ of sale of the suit land when the Respondents/defendants jointly had actual notice that the Appellant/plaintiff was in physical occupation of the suit land. - In their defence, the Respondents denied the Appellant's claims and $[5]$ contended that the suit disclosed no cause of action against the Respondents because at the time of purchase of the suit land, the $2^{nd}$ and $3^{rd}$ Respondents were public servants of Kagadi Sub county as a Sub county Chief and L. C 3 Chairperson respectively. That Kagadi Sub county is a body corporate with capacity to be sued hence the suit is against wrong parties. - $[6]$ The Respondents contended further that the $1$ ^st **Respondent** was bequeathed the suit land orally as a gift intervivos by his late father a one **Mujobe Andrea** around 1976 where for the last 42 years, he had been rearing animals and carrying out extensive agriculture. That in around 2014, the $1^st$ Respondent sold part of the suit measuring 5 acres to Kagadi Sub county which needed land for construction of offices hence it is the **sub county** that is now in use and occupation of the land. - The trial Magistrate on his part, addressed himself on the burden and standard $[7]$ of proof in civil cases, that the Appellant/plaintiff was under duty to prove his claim on the balance of probabilities that he is the rightful owner of the land that extended to the land the 1^st **Respondent** occupied and sold out. - In the instant case, the trial Magistrate found that the Appellant claimed to $[8]$ had been bequeathed the suit land by a WILL which never specified the land and its boundaries and was not tendered in evidence but only produced for identification. The trial Magistrate was persuaded by the $1^st$ **Respondent** who was in occupation of the suit land for a long time, that he was the owner of the land which he rightfully sold to the Kagadi Sub county, a body corporate and therefore, the Appellant sued the wrong parties. He concluded that the Respondents were not trespassers on the suit land and dismissed the

Appellant's suit with costs to the Respondents.

- The Appellant was dissatisfied with the judgment and orders of the learned $[9]$ trial Magistrate and lodged the present appeal on the following grounds: - 1. The learned trial Magistrate erred in law when he rejected the letters of Administration for the estate of the late Kwebeya Zirimenya thus leading to a miscarriage of justice. - 2. The learned trial Magistrate erred in law and fact when he failed to evaluate the evidence on record, disregarded and overlooked the entire plaintiff's evidence on ownership, possession and use thereby reaching an unjust decision; - a) That the $1^st$ defendant was in possession of the property. - b) That the 1^st defendant rightly sold the suit land to the Kagadi Sub county. - c) That the plaintiff had no cause of action against the $2^{nd}$ & $3^{rd}$ defendants. - 3. The learned trial Magistrate erred in law when he rejected the plaintiff's final submissions thereby reaching an unjust decision. - 4. The learned trial Magistrate erred in law when he relied on the untranslated document tendered as **D. Exh.1** thus leading to a miscarriage of justice.

## **Counsel legal representation**

[10] The Appellant was represented by Mr. Isaac Mwebaze of M/s Aequitas Advocates, Kampala while the Respondent was represented by Mr. Emmanuel Wosamwa of M/s P. Wettaka Advocates, Kampala.

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

- $\begin{bmatrix} 1 \\ 1 \end{bmatrix}$ It is trite that the duty of the first appellate court as the instant one is to review the record of evidence for itself in order to determine whether the decision of the trial court stands without necessarily interfering with the discretion of the trial court unless satisfied that the trial court has misdirected itself and thus arrived at a wrong decision; Stewards of Gospel Talents Ltd Vs Onyango, HCCA No.14 of 2008 and N. I. C Vs Mugenyi [1987] HCB 218. - [12] In the instant case, this court shall rehear the case on appeal by reconsidering all evidence as adduced before the trial Magistrate by giving it a fresh and exhaustive scrutiny, See also Belex Tours and Travel Ltd Vs Crane Bank &

Anor, CACA No.71 of 2009.

**Consideration of the Appeal**

- Ground 1: The learned trial Magistrate erred in law when he rejected the letters of Administration for the state of the late Kwebeya Zirimenya thus leading to a miscarriage of justice. - [13] Counsel for the Appellant submitted that the Appellant/plaintiff orally prayed to tender in evidence letters of Administration for the estate of his late father Kwebeya Zirimenya and court declined the prayers on grounds that they were unnecessary. - [14] This court has perused the record. With due respect to counsel for the Appellant, the record does not bring out at all his claims that the Appellant orally prayed to tender in evidence of letters of administration of the estate of his late father Kwebeya Zirimenya. The Appellant's case was clear. His claim was based on the WILL allegedly left by his father wherein the suit land was allegedly bequeathed to him and his brother a one Kezekia Bachwa. This is what is also reflected in his pleadings. In his pleadings, the Appellant /plaintiff never pleaded that he acquired letters of administration for the estate of his late father. Counsel for the Appellant in this case attached a copy of the Grant on his submissions but evidence is never adduced through submissions as counsel is attempting to do in this case. - [15] In evidence, during cross examination by the 1^st defendant, the Appellant stated thus;

"I do not have letters of administration but the land is mine."

Clearly, the Appellant's claim of the suit land was not based on any letters of administration and indeed, he never pleaded so. In any case, in suits of trespass, where one is seeking to protect the estate from wasting, with or without letters of administration, the plaintiff would still have locus to institute such a claim, Israel Kabwa Vs Martin Banoba, SCCA No.52/1995.

[16] I would in the premises of this case find that the Appellant's failure to adduce proof of letters of administration of his father's estate or rejection of it allegedly by the trial court, which allegation is not supported by any evidence,

as a beneficiary to the suit land, no miscarriage of justice has been occasioned. The 1^st ground of appeal accordingly fails.

# Ground 2& 3: 2. The learned trial Magistrate erred in law and fact when he failed to evaluate the evidence on record, disregarded and or overlooked the entire plaintiff's evidence on ownership, possession and use thereby reaching an unjust decision.

- a) That the $1^{st}$ defendant was in possession of the suit property. b) That the $1^{st}$ defendant rightly sold the suit land to the Kagadi - Sub county. - c) That the plaintiff had no cause of action against the $2^{nd}$ and $3^{rd}$ defendants. - 3. The learned trial Magistrate erred in law when he relied on the untranslated document tendered as D. Exh.1 thus leading to a miscarriage of justice. - [17] Counsel for the Appellant submitted that the trial Magistrate erred in law and fact when he found that the $1^{\mbox{\tiny st}}$ Defendant was in possession of the suit property yet the Appellant/plaintiff's evidence throughout the trial was that his family was in occupation and use of the suit property for grazing and coffee growing. That while at locus, the Appellant labored to show court the graves where his deceased brother and father were buried but court deemed it unnecessary thus denying the Appellant to demonstrate and confirm the evidence he adduced in court. As regards whether the Appellant had a cause of action against the $2^{nd}$ and $3^{rd}$ defendants, counsel submitted that the trial Magistrate wrongly relied on untranslated purchase agreement by the sub county (D. Exh.1) which was never endorsed by any of the purported purchaser's officials. $\bigcap$ - [18] In the first instance, I find that it is not true and it is not correct as counsel for the Appellants submitted that the sale agreement of the suit land between the 1st Defendant/Respondent and the Sub county (D. Exh.1) was admitted without its English translation. The record bear an English translation of D. Exh.1 and the certificate of translation was endorsed by a one Kyomuhendo Simon who was reflected to had been proficient in Runyakitara and English languages and therefore competent to do the translation of the agreement.

$\overline{1}$

$\mathbf{I}$

$\lceil$

He used to have coffee, Eucalyptus trees but died up..... I do not know the size of the land. What I know I saw a house of Kaparaga."

There was no evidence adduced by the Appellant that this is the portion of land that was sold to the Sub county. He did not for example lead evidence as to what happened to Kaparaga's house mentioned above if at all that is the suit land that was sold to the Sub county.

- The Respondents on the other hand adduced evidence that established that $[25]$ the land belonged to the $1^{st}$ Respondent. The transaction of the sale of the suit land by the 1^st Respondent took place in the presence of the L. C1, L. C2, L. CIII and the Sub county councilors and upon conclusion of the transaction, the Sub county took possession of the land; See evidence of Sunday Eric $(DW2)$ . - As per the Respondents, the sale of the suit land took place on $28/2/2014$ . $12$ The Appellant first filed the suit challenging the sale on $15/3/2017$ . There is no where it is alluded that the Appellant was evicted from the suit land by the alleged trespassers. According to Byaruhanga Martin (1st Respondent) the Appellant sold his land he had in the area in 1978 to a one Yowasi Bisungu and left. The trial Magistrate who had the opportunity of seeing and hearing the evidence as was adduced by the parties believed the Respondents to had all along been in possession of the suit land. The Appellant sold his known piece of land and left. I do not have any reasons to interfere in his findings as regards this issue. - [27] As regards whether the Appellant has a cause of action against the $2^{nd}$ and $3^{rd}$ **Respondents,** the burden of proof was on the Appellant to prove that the $1^{st}$ **Respondent** sold the suit land to the $2^{nd}$ and $3^{rd}$ Respondents. The Respondents from their pleadings stated that the $1^{st}$ Respondent sold the suit land to Kagadi Sub county. The Appellant adduced no evidence at all connecting the sale of the suit land to the $2^{nd}$ & $3^{rd}$ Respondents. The sale agreement of the suit land to Kagadi Sub county (D. Exh.1) and its occupation of the land was not challenged at all by the Appellant. I find that the Appellant sued the $2^{nd}$ and $3^{rd}$ Respondents as wrong parties. The right parties would have been the 1^st Respondent and Kagadi Sub county, a corporate body which purchased the suit land from the 1^st Respondent. I find grounds 2 & 3 devoid of any merit and they accordingly fail.

# Ground 4: The learned trial Magistrate erred in law when he rejected the plaintiff's final submissions thereby reaching an unjust decision.

- [28] The purpose of submission is to aid the court's understanding of the party's position/arguments on the issue(s) being complained of or in dispute, O.8 r.2 CPR. Submissions comprise of the arguments by counsel for the Respective parties who are given the opportunity to address court before a decision is made. Submissions are therefore not evidence but a guide to court on issues before a decision is made. - [29] Whereas I find that it is good practice for court to give parties and or their respective counsel opportunity to address court on pertinent issues in form of submission before a decision is made, I find that the trial Magistrate's failure to allow submissions being filed or omission to consider the Appellant's submissions on record did not occasion any miscarriage of justice since submissions do not comprise evidence but rather arguments. The 4^th **ground** is also found devoid of merit it accordingly fails. - [30] As a result of the foregoing, the entire appeal is found devoid of any merit. The judgment and order of the trial Magistrate are accordingly upheld and the appeal is dismissed with costs.

Dated this 13^th day of September, 2024.

**Byaruhanga Jesse Rugyema** JUDGE.