[2023] UGHCLD 335

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL APPEAL NO. 0021 OF 2017

(Arising From Hoima Chief Magistrate's Court, Civil Suit No.6/2014)

SENTAYI JOSEPH::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### MUKASA JAMES ::::::::::::::::::::::::::::::::::::

#### **RULING**

### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

This is an appeal from the judgment of the Hoima Chief Magistrate at $[1]$ Hoima, delivered on the $8^{th}$ day of December, 2016.

### **Background of the appeal**

- In 2004, the claimant/plaintiff (now Respondent) filed a land claim $[2]$ against the defendant/Appellant before the Kibaale District land Tribunal at Kibaale for inter alia an eviction order and declaration that the land in dispute belongs to him. He alleged trespass by the defendant/Appellant on his unregistered land situate at Kyakinaka L. C1 village, Kihurumba Parish, Bwanswa Sub-county, Kibaale District. The plaintiff's case was that the defendant/Appellant without lawful right and authority/excuse entered the disputed land the plaintiff purchased from a one Kayiira Martin and fenced it off. - $[3]$ The defendant/Appellant $\overline{on}$ the other hand denied the plaintiff/Respondent's allegations and contended that he legally owned the disputed land. He counter claimed that he purchased the suit land in 1997 and has been enjoying quiet possession and occupation of the land without being disturbed by any one. That he had neither received any complaints as to ownership nor received any objections as to his possession. That he fenced off all his land with poles and barbed wire which fence he has been replacing occasionally since 1997 with knowledge and observance of all his neighbours including the alleged seller to the plaintiff/Respondent; a one Kayiira Martin without him objecting or complaining to the developments. Wherefore, he also counter claimed for inter alia a declaration that the land in dispute belongs to him.

- The terms of the Tribunal lapsed before the determination of the suit $[4]$ and it was transferred to Magistrate Grade 1 Kibaale for determination. The trial Magistrate heard it until 25.9.2009 when he concluded the suit in favour of the plaintiff/Respondent. - The defendant/Appellant was dissatisfied with the decision of the trial $[5]$ Magistrate and filed an appeal vide H. C. C. A No. 0051/2009 upon which the appellate Judge found that the trial Magistrate had erred in law and fact when he determined the matter before visiting the locus in quo and that he failed to pay attention to the whole evidence on record hence prejudicing the defendant/Appellant and as a result, ordered a trial **de** novo before a different judicial officer who in addition was to visit the locus in quo. - The retrial trial Magistrate heard the matter and also concluded by $[6]$ giving judgment in favour of the plaintiff/Respondent. defendant/Appellant being dissatisfied with the decision, once again appealed to this court on grounds contained in the memorandum of appeal thus: - 1. The learned trial Magistrate erred in law and fact when he failed to conduct locus in quo hence a mistrial. - 2. The trial Magistrate erred in law and fact when he failed to evaluate the evidence on record. - 3. The learned trial Magistrate erred in law when he awarded general damages on monthly basis.

## **Counsel legal representation**

The Appellant was represented by Counsel J. P Baingana Paul of M/s $[7]$ JP. Baingana & Co Advocates, Kampala while the Respondent was represented by Counsel Simon Kasangaki of M/s Kasangaki & Co. Advocates, Masindi. Both Counsel filed their respective written submissions in support of their respective clients.

# Duty of the 1^st Appellate Court

The first appellate court is to rehear the case on appeal by $[8]$ reconsidering all the evidence before the trial court and come up with its own decision. The parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law; FR. NARSENSIO BEGUMISA & ORS VS ERIC TIBEBAGA S. C. C. A NO.17 OF **2002.** The duty of the $1^{st}$ Appellate court is therefore to review the

record of evidence for itself in order to determine whether the decision of the trial court should stand.

### Ground 1: The learned trial Magistrate erred in law when he failed to conduct locus in quo hence a mistrial.

- Counsel for the Appellant submitted that the learned Appellate Judge, $[9]$ Justice Ralph Ocan (as he then was) had set aside the trial and ordered a trial **de novo** before a different judicial officer who was in addition to the fresh trial, visit the locus in quo. That when the matter was placed before the Chief Magistrate of Hoima, he heard the matter but never visited locus yet he had ordered visitation of locus in quo. The trial magistrate proceeded and concluded the matter and declared that the land belonged to the plaintiff/Respondent and ordered an eviction of the defendant/Appellant herein, a permanent injunction and general damages of Ug. shs. 200,000/= with costs. It was counsel for the Appellant's contention that no locus was actually conducted because of heavy down pour/rain on that day. - [10] Counsel concluded in his submissions that the trial magistrate having ordered or decided to go for locus in quo, the court was obliged to pursue that line. That it rained 'cats and dogs' the reason why both parties could not go on the suit land. That it was therefore an error for the trial magistrate to be at locus in quo and fail to conduct it because absence of a party would not deter the other from proceeding. He in the premises prayed that the judgment of the lower court can be set aside and the trial magistrate be ordered to comply with the High court direction to visit the locus in quo. - [11] Counsel for the Respondent on the other hand submitted that the boundaries of the suit land were not in dispute. That a perusal of the pleadings before the trial court reveals that what was primarily in dispute was the interests of either persons in the suit land. The parties attested to this issue at length providing sufficient evidence to enable the trial court draw conclusions as to their respective interests in the suit land. He concluded that consequently, on a balance of probabilities, the omission to visit or rather to take evidence at the locus in quo due to absence of the Appellant and his witnesses did not occasion a miscarriage of justice in this case. - 2ndly, that from the record of proceedings at p.20, the trial magistrate $[12]$ rightly stated that when court visited the land in dispute, the plaintiff/Respondent was present with his witnesses but the

defendant/Appellant was absent with his witnesses with no reason for his absence.

[13] The locus proceedings at p.20 of the typed record of proceedings The read thus:

"Court: It is raining, the defendant and his lawyer have not come, we have not been given any reason for their absence, a retrial was ordered in the case with a directive that court visits the scene, the other party in whose interest the locus was ordered is not here, unless cause be shown to the contrary, we take it that they have deliberately refused to attend. We shall give them a grace period of 28 days from today to show cause why court should not proceed with the evidence on record, since they have not indicated why they are not here."

- [14] It is apparent that indeed when the said grace period of 28 days elapsed, the trial magistrate proceeded to write the judgment in favour of the plaintiff/Respondent without any other locus visit in quo ever being conducted. It is therefore true and correct as counsel for the Appellant submitted and argued that the trial magistrate, though he visited the disputed land, he never conducted locus and the reason for do so were because of the absence of the failure to his defendant/Respondent. I am in agreement with the argument of counsel for the Appellant that it was an error for the trial magistrate to be at locus in quo and fail to conduct it merely because of the absence of a party. The absence of the defendant/Appellant should not have deterred him or the plaintiff/Respondent from proceeding and conduct the locus in quo in the premises where the defendant/Appellant had been present when the matter was fixed for locus visit. The failure by the defendant/Appellant to be present was surely no good reason for the trial magistrate's failure to conduct locus proceedings in view of the High court directions to do so. This was a very unfortunate conduct of the trial magistrate in view of the fact that this was a case that had been pending determination since 2014. - Counsel for the Respondent submitted in the present appeal, that the $[15]$ boundaries of the suit land were not in dispute. I don't agree with this position. Mukasa James (PW1), the plaintiff testified at page 4 of the typed record thus;

"After the purchase of the land around November 2004 the defendant fenced part of the land... He claim to have bought the land."

At page 11, Matiya Webu (PW4), the then L. CI chairman testified that: "At the moment there is a fence of barbed wire. It was erected after Mukasa James (plaintiff) had bought. It is Sentayi (defendant) who erected it. The fence covers part of the land. he bought not the whole of it. There is nothing going on the fenced land. The one which remained is arazed on by *Mukasa (plaintiff)"*

Surely there was an issue of boundary ascertainment regarding the portion of land fenced by the defendant vis a vis the plaintiff's land which remained. The High Court direction to visit locus in quo was not in vain. In the premises, I find that the trial magistrate's conduct at locus in quo fell short of the guidelines for visiting locus in quo in **Practice Direction No.1 of 2007** which require the verification of the evidence that has been given in court, record all proceedings at the locus in quo and record any observations, view, opinion or conclusion of the court.

[16] A similar scenario pertained a sister appeal of this matter in **Civil** Appeal No. 22 of 2017 between the present Appellant Sentayi Joseph and Iga David, the Respondent (Arising from C. S (land) No.007 of $2014).$

In the premises, for purposes of ensuring that there is no further delay in the determination of the 2 matters of 2014, the Registrar of this court is directed to visit locus in quo of the 2 suits which are located in the same area and conduct the locus proceedings in strict compliance with the procedure laid down in Practice Direction No.1 of 2007 and return the 2 files for Judgment writing with locus visit report for each file within 2 weeks from the date of this decision. The Registrar to properly ascertain that portion of land allegedly trespassed upon as shall be shown to him by the plaintiff/Respondent, then the portion fenced off by the defendant/Respondent and record any other useful information and observations that would enable court adjudicate and determine the appeals. The 2 sister appeals shall be consolidated for appeal purposes accordingly. To again send back the 2 files back to the trial magistrate for retrial or locus is not feasible in the interests of justice.

Dated at Masindi this $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ da

**Bvaruhanga Jesse Rugyema** JUDGE.