[2025] UGHC 347

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL APPEAL NO. 0001 OF 2023 (Arising from Civil Suit No. 0099 of 2015)** 10 **SILVERIO RUTAKIRWA**:::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT VERSUS NASANI NTAMBIRWEKI**::::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENT**

## 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

The Appeal arises from the Judgment of the Magistrate Grade one at Kabale Chief Magistrates Court in Civil Suit No. 0099 of 2015 delivered on the 06/09/2022 in favour of the Plaintiff.

20 The brief background to this appeal is that the Respondent/Plaintiff sued the Appellant/Defendant for trespass, general damages and costs of the Suit. The Respondents claim as per his Plaint is that he purchased the Suit property in 1955 from a one Katakanya at a consideration of UgX 102/= and the same is situate at Nyakabungo, Ikumba, Kabale District covering approximately an acre. That the 25 Respondent started using the Suitland by cultivating it and later turned it into a grazing farm. It is the claim of the Respondent that 3 years back the Appellant entered on to the Suitland without the Respondent's consent and cultivated it, built a house on it and is cultivating the same to date. It is the claim of the Respondent that the matter was litigated before the LC I Court of Kabirizi which 30 ruled in his favour and the Appellant appealed to the LC II and won and the Respondent appealed to the LC III which decided in his favour before the Chief 5 Magistrate set aside all the Local Council Judgments and advised that the parties file a fresh Suit, hence Civil Suit No. 0099 of 2015.

The Appellant/Defendant in his written statement of defence denies the claims of the Respondent and avers that he acquired the Suit property in 1994 from Boniface Barihemura and upon the said purchase the Appellant took immediate

10 possession and control of the Suitland, planted a banana plantation, some trees along the boundaries and eventually put up a house without anybody raising a superior claim against the Appellant including the Respondent.

The trial Magistrate in his Judgment delivered on the 06/09/2022 found in favour of the Respondent declaring him to be the owner of the Suit property, awarded

15 him general damages of UgX 2,000,000/= and costs of the Suit.

The Appellant/Defendant being dissatisfied with the trial Magistrate's decision filed the instant appeal on the following grounds.

- **1) The learned trial Magistrate erred in law and fact when he made a finding that the Suitland belongs to the Respondent contrary to the** 20 **evidence on record thus causing a miscarriage of justice.** - **2) The learned trial Magistrate erred in Law and facts when he failed to properly evaluate evidence on record and reached a wrong decision.** - 3) **The learned trial Magistrate erred in law and fact when he awarded general damages to the Respondent without proof**. - 25 At the hearing of this appeal, Messrs Beitwenda & Co. Advocates represented the Appellant while Messrs Bikangiso & Co. Advocates appeared for the Respondent. Counsel in this matter proceeded by way of written submissions.

5 **Duty of Court.**

The duty of this Honourable Court as the first Appellate Court is to re-appraise the evidence on record and come up with its own conclusion bearing in mind the fact that it did not have the opportunity to observe the demeanor of witnesses.

**See Automobile Spares Ltd versus Crane Bank and Another SCCA No. 0021 of** 10 **2001**.

There being no standard method of evaluation of evidence an appellate Court will only interfere with the findings made and conclusions arrived at by the trial Court only if it forms the opinion that in the process of coming to those conclusions the trial Court did not back them with acceptable reasoning based on a proper

15 evaluation of evidence, which evidence as a result was not considered in its proper perspective.

**See Peter versus Sunday Post Ltd (1958) EA 429**.

Counsel for the Appellant argued ground 1 and 2 jointly.

**The learned trial Magistrate erred in Law and fact when he made a finding**

20 **that the Suitland belongs to the Respondent contrary to evidence on record thus causing a miscarriage of justice.**

And

**The learned trial Magistrate erred in law and fact when he failed to properly evaluate evidence on record and reached a wrong decision.**

25 It is the submission of Counsel that PW1 testified that he acquired the Suitland by purchase from Katakanya long time ago which he did not remember.

- 5 That the Plaintiff/Respondent never adduced any evidence that he indeed purchased the Suitland from Katakanya and the agreement which was written with a pencil on which the Respondent relied on was admitted as P. ID. Counsel contends that the law on documents received for identification is long settled and in the case of **Kirya Robert versus Uganda a Criminal Appeal No. 0050** of **2016** 10 Lady Justice Flavia Senoga Anglin held that: - "*There is a distinction between exhibits and articles marked for identification. The term exhibits should and is only confined to articles which have been formally proven and marked in evidence. The mere marking of a document for identification purposes does not dispense with the formal proof thereof.* - 15 *Therefore, once a document is marked for identification (as the case was herein) it must be proved. A witness must produce the document and tender it in evidence as an Exhibit and lay foundation for the authenticity and relevance to the facts of the case. The document only becomes part of the record if admitted as an Exhibit on the record. If the document is not admitted in evidence as an Exhibit, it only* - It is therefore, the argument of Counsel that the alleged agreement dated 16/07/1955 did not form part of the record and therefore there was no proof of purchase by the Respondent as alleged.

20 *remains as hearsay evidence, un tested and an un authenticated account"*

Furthermore, that the Respondent as the alleged purchaser and the vendor 25 Katakanya did not sign the alleged document and that the only explanation was that the document was a forgery.

- 5 Counsel for the Appellant also highlighted the inconsistencies and contradictions in the evidence presented by the Plaintiff/Respondent and argues that the Respondent has never been the owner of the Suitland neither has he possessed the same. That the Respondent in his examination in chief testified that the Suitland is bordered by Rwenduru at the top, a path to the right, Kabigabwa on 10 the left and himself at the bottom but that under cross examination the Respondent testified that the Suitland is bordered by Rwenduru at the top, Kabigabwa on the right, a path on the left and the Plaintiff and Byanyima at the bottom. Counsel further contends that PW2 equally testified that the Suitland is bordered by Rwenduru at the top, Nathen Ntambirweki and Gaston Katuragire 15 on the left side, Road on the left and Byanyima Peter at the bottom. That under cross examination he contradicted himself and testified that the boundaries are Rwenduru on the top, Peter Byanyima on the bottom, Gaston on the right side and a footpath on the right side. That PW2 also testified that his father owned land on the left side of the Suitland living across the road to Nyakabungo but at - 20 locus, the boundaries that were clearly shown did not reflect PW2 or his father. According to the Appellants Counsel PW4 testified adding to the contradiction that Rwenduru bordered the Suitland on the top, Gaston Kuragire on the right side, Road to Nyakabungo on the left and Nathan Ntambirweki and the bottom Peter Byakushiya. - 25 It is the contention of Counsel that the inconsistencies in the Respondent's evidence were not minor but that they were grave and there was no justification for the discrepancies.

5 At locus Counsel argues that there were large and fully grown eucalyptus trees of over 15 years that were observed and that the Plaintiff admitted that they were planted by the Defendant. Further that while the Plaintiff testified that the Suitland comprised of trees about three years old, the rest of the witnesses testified of old trees. Counsel criticized the trial Magistrate for entering Judgment 10 in favour of the Respondent without cogent evidence on the record.

Counsel for the Appellant highlighted the evidence of the Appellant/Defendant that DW1 testified without material challenge that he acquired the Suitland by way of purchase from Boniface Barihemura in 1984 and that a sale agreement was executed and the same was admitted as D. Ex1.

15 That immediately upon purchase he planted trees, banana plantation and put up a house and the Plaintiff during that time never complained about the Defendant's possession only to sue him in 2015 and that all these were seen and confirmed at locus.

Further that DW2 corroborated the evidence of DW1 and testified that the 20 Suitland is for Defendant having purchased the same from Barihemura Boniface in 1994 and that at the time of the said transaction, he was the LC 1 chairperson who witnessed and stamped as such.

It is therefore the argument of the Appellant's Counsel that on the balance of probabilities the Appellant/Defendant actually proved that he was the lawful 25 owner of the Suitland and has been in possession ever since and cannot therefore trespass on his own property.

- 5 Counsel for the Respondent/Plaintiff in his written submissions in reply raised a Preliminary Point of Law that the Appeal was filed out of time contrary to **Section 79(1)** of the **Civil Procedure Act** which provides for a time limit of 30 days within which an appeal should be lodged from the date of the Decree or Order. It is the submission of Counsel that Judgment was delivered on the 06/09/2022 but that 10 the Appellant never filed any letter requesting for the certified copy of the proceedings and Judgment. According to Counsel the Appellant later filed a Memorandum of Appeal on the 20/01/2023 which was over 4 months later without obtaining an extension of time to file the same from this Court. Counsel also submits that the record of proceedings from the lower Court was incomplete - 15 because it lacked proceedings from locus that was conducted on the 13/12/2021. Counsel therefore prays that the appeal is struck out for being incompetent.

On the merit of the appeal Counsel for the Appellant argued grounds 1 and 2 omnibus submitting that PW1 – Nasani Ntambirweki now the Respondent testified that the Suitland is his and he acquired the same by purchase on 20 16/07/1995 from a one Katakanya who sold it to him at a consideration of UgX 122/= and a sale agreement was executed to this effect. Counsel contends that P. ID1 that was tendered in Court for identification was later received as an Exhibit PEX 1 after he failed to get a witness and that this was through the Plaintiff at locus and that the trial Magistrate should not be blamed for relying on the same.

25 Furthermore, Counsel contends that there were no contradictions in PW1's testimony as alleged by the Appellant in relation to the boundaries but that on the other hand the Defendant/Appellant testified that he acquired the Suitland by purchase in 1992 and later clarified that it was in 1994 from Boniface Barihemura.

- 5 It is the submission of Counsel that DW2 Byarugaba Augustine in his testimony is clear that he does not know the origin of the Suitland that he claimed belonged to his parents as he mentions that Barihemura was a member of Batungi and the Suitland was being used by the locals collectively though it was not for the Batungi and that this raises a question of how the locals came to use the Suitland also that 10 DW2 contradicts the evidence of DW1 who told Court that the Suitland was for - Barihemura and yet he did not know how it was purchased.

It is also the argument of counsel that DW2 stated that the trees were planted in 2000 which contradicts DW1's testimony that after purchasing the land in 1994 he fenced it with stones and eucalyptus trees and during cross examination he

15 testified that he planted the trees in 1995 and yet when the Court visited locus in December 2021 the trees were still young about 6 – 7 years which confirms the Respondent's claim that the Appellant trespassed on the Suitland and planted trees about 3 years ago.

Counsel for the Appellant in rejoinder to the Preliminary Objection submits that 20 Judgment in the lower Court was delivered on 06/09/2022 and the appeal filed on 20/01/2023.

It is the contention of Counsel that on the 14/09/2022 the Appellant filed a letter in the trial Court requesting for copies of typed proceedings and Judgment which were certified on the 29/06/2023 by the Court. That under **Section 79 (2)** of the

- 25 **Civil Procedure Act** the period taken by the Court in making a copy of the Decree, Order appealed against or the proceedings is excluded. Accordingly, it is the argument of Counsel that the period 06/09/2022 to 29/06/2023 is to be excluded - 8 5 but that in any case the Appellant was vigilant and even filed the Memorandum of appeal before obtaining the certified copy of proceedings.

Counsel therefore prays that the Preliminary Objections are overruled.

**Determination of the Preliminary Objection.**

I have perused the record of the lower Court and found that judgment was 10 delivered on the 08/09/2022 and thereafter by letter dated 13/09/2022 and received by the Court on 14/09/2022 the Appellant's Counsel requested for the record of proceedings.

The Appellant before receipt of the record filed his memorandum of Appeal on the 25/01/2023. The certified copies of the proceedings bear 29/06/2023 as the 15 date on which the Court certified the same.

Counsel for the Appellant rightly submits that under **Section 79(2)** of the **Civil Procedure Act** the period taken by the Court to prepare the record is excluded from the computation of 30 days within which the record is to be filed. It would appear therefore that the instant appeal was filed even before receipt of the 20 record of the lower Court and as such was well within the period prescribed by the law.

This preliminary Objection shall therefore be overruled.

The 2nd Preliminary Objection raised by the Respondent's Counsel relates to the missing record of the locus visit said to have been conducted on 13/12/2021.

25 I find this issue better dealt with when handling the appeal substantively and shall make a pronunciation on the same below.

5 **Determination of Grounds 1 and 2.**

The following three issues were raised for determination by the trial Magistrate

- **1. Whether the Suitland belongs to the Plaintiff.** - **2. Whether the Defendant trespassed on the Suitland.** - 3. **Remedies available to the parties**. - 10 The trial Magistrate on the first issue notes that the Respondent/Plaintiff's testimony is that he purchased the Suitland from one Katakanya at a consideration of UgX 122/= as per the sale agreement dated 16/07/1955 and admitted as PEX 1 and that the Respondent started cultivating the same and turning it into a grazing farm and in 2013 the Defendant without any colour of - 15 right entered on this land cultivated it and built a house thereon. The trial Magistrate found the evidence of PW2 and PW3 to corroborate the evidence of the Respondent and that they knew the Suitland very well as belonging to Nasani Ntambirweki (SIC) and they found him using the same when they were born. The trial Magistrate notes on the other hand that DW1 testified that he acquired the - 20 Suitland by purchase in 1994 from one Boniface with the agreement equally being admitted in evidence as DEX 1. He notes that DW2 testified that the Suitland was used by a group.

The trial Magistrate then proceeds to note that both parties presented purchase agreements as proof of ownership and purchase. To break this stalemate, the trial 25 magistrate makes the following findings;

"*It is trite law that where there are two conflicting interests in respect to land ownership, the first one in time takes precedence/prevails. This is coupled with the* 5 *Plaintiff's long and un interrupted use of the Suitland with the knowledge of the Defendant.*

*Accordingly, this Court finds that the Suitland belongs to the Plaintiff and issue 1 is decided in the affirmative"*

The submission of Counsel for the Appellant/Defendant that the 10 Respondent/Plaintiff did not adduce any evidence of purchase of the Suit property and that the purported sale agreement was admitted as P. ID1 for purposes of identification appears to have merit. A perusal of the record reveals that the Plaintiff's sale agreement was never formally admitted in evidence by the trial Magistrate. The reference to PEX 1 by the trial Magistrate therefore is strange and

15 requires further interrogation.

The only explanation is given by Counsel for the Respondent/Plaintiff which is really one made from the *"bar"* that P. ID1 was admitted by the trial Magistrate during the locus visit as PEX1 through the Plaintiff because the Plaintiff had failed to get a witness to tender it through and that the trial Magistrate should not be

20 blamed for relying on the same.

This explanation may be plausible but as indicated already there is no record.

The proceedings at locus both in hand written and the certified copy are not a part of the record.

The trial Magistrate in his Judgment makes reference to the locus visit and makes 25 a finding that the Plaintiff led sufficient evidence on issue 1 to prove that the Suitland rightfully belongs to him when Court visited locus.

5 Both Counsel in this matter implore this Court to take into consideration the age of the trees at the locus to determine the respective claims of the parties.

Counsel for the Appellant submits heavily on the contradictions of the Plaintiff/Respondent and his witnesses relating to the boundaries of the Suit property. All these can only be conclusively determined when this Court has

10 access to the locus proceedings.

The last record before this Court is dated 07/10/2021 at which Counsel for the Appellant/Defendant prayed that the matter be fixed for locus and the same was fixed for the 29/10/2021 by the Court.

The facts of this case are that the proceedings at locus cannot be ignored.

15 The Court of Appeal guided on how to proceed with incomplete records in **Ephraim Mwesigwa Kamugwa versus The Management Committee of Nyamirima Primary School (Civil Appeal No. 0101 of 2011)** in which Fredrick Egonda-Ntende JA state thus:

"*What is the law with regard to an incomplete record on appeal, the law on missing* 20 *record of proceedings has long been established.*

*Where a record of trial is incomplete by reason of parts having been omitted or gone missing or where the entire record goes missing in such circumstances the Appellate Court has the power to either order a retrial or reconstruction of the record by the trial Court… Where reconstruction of the missing part of the record*

25 *is impossible for whatever reason, but the Court forms the opinion that all the available material on record is sufficient to take the case to its logical end, the* 5 *Court may proceed with the partial record as long as it would not prejudice either party"*

The relevance of a locus visit was also emphasized **in Kwebiiha Emmanuel and Another versus Rwanga Furujensio and 02 others Civil Appeal No. 0012** of **2011** it which it was observed that:

- 10 *"… in a nut shell, the purpose of visiting locus inquo is to clarify on evidence already given in Court. It is for purposes of the parties and witnesses to clarify on special features such as graves and/or grave yards of departed ones on either side, to confirm boundaries and neighbors to the disputed land, and to show whatever developments either party may have put up on the disputed land and any other* - 15 *matters relevant to the case. It is during locus inquo that witnesses who were unable to go to Court either due to physical disability or advanced age may testify.*

*However, if the trial Court finds/or is satisfied that the evidence given in Court is enough, then he or she may not visit the locus inquo. Evidence at the locus inquo cannot be a substitute for evidence already given in Court.*

20 *It can only supplement. It should therefore be noted that visiting locus inquo is not mandatory.*

*It depends on the circumstances of each case. However, once locus inquo is visited all the relevant procedures must be followed. Witnesses must testify or give evidence after taking oath or affirmation and they are liable to cross examination*

25 *by the parties and/or their advocates.*

5 *All evidence and proceedings at the locus inquo must be recorded and form part of Court record. It is also important to note that evidence at locus cannot be considered in isolation from the existing evidence recorded in Court"*

It would appear that the importance of the locus proceedings in this matter cannot be over emphasized. I am sufficiently satisfied from the present record

10 that locus was conducted.

The trial Court and advocates attest to the same. It serves no useful purpose to speculate on how or why the proceedings are missing. It should suffice to note that a miscarriage of justice will be occasioned to the parties if this Court oblivious to the missing record proceeded to make a final decision in the appeal.

15 A retrial is often a last resort and in this particular case I find it fatal to either party that the locus proceedings on which both sides have heavily submitted is missing.

I am a live to the challenges that a retrial will pause to the parties in an old matter such as this but I find no better alternative if justice is to be served.

20 The instant appeal therefore succeeds on ground 1 and 2.

I do not find it necessary to consider ground three. To do so will only be for academic purposes.

In the final result, the instant appeal succeeds. The Judgment and Orders of the trial Magistrate are hereby set aside.

25 An order for a retrial is hereby issued before another trial Magistrate.

5 The parties shall each bear their own costs in this Appeal and the lower Court. Before me,

……………………..……………… **Samuel Emokor** 10 **Judge 10/04/2025.**