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# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE LAND CIVIL APPEAL NO. 0027 OF 2022 (Arising from Land Civil Suit No. 0160 of 2015) TIBANDEBA GENEROSE**::::::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT** 10 **VERSUS**

## **TUKWASIBWE VANGIRISTA**::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENT (An Administratix of the estate of late Vereriano Rwakacwa)**

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

#### 15 **JUDGMENT**

This Appeal arises from the Judgment delivered by the Magistrate Grade One sitting at Kabale Chief Magistrates Court in Civil Suit No. 0160 of 2015 wherein he found in favour of the Respondent.

The brief background to this Appeal is that the Respondent/Plaintiff instituted

- 20 her suit as the Administrix of the Estate of late Vereriano Rwakacwa for a declaration that the land located at Hamunyinya Cell, Burime Parish, Rwamucucu Sub County Kabale District belongs to the Plaintiff and forms part of the Estate of the late Vereriano Rwakacwa, a permanent injunction restraining the Defendant from trespassing upon the Suitland, general damages and costs of the suit. - 25 The Respondent/Plaintiffs' claim as per the amended Plaint filed on 03/11/2017 is that in 1984 the Plaintiffs' mother exchanged land with the Defendants' husband the late Zindonda Vincent a brother to the Plaintiff where by the Defendants' husband took possession of the banana plantation located at Makanga bordering Nyakabaza at the bottom, top is Vincent Armey Zindonda,

5 right is Bafokorora and left is Burahure while the Plaintiffs' mother took exclusive possession of the land located at Mukirwa bordering Zindonda at the bottom, Bangana at the top, Tukahirwa at the right hand side and Babo at the left hand side. That the Plaintiffs' mother continued to use the suit land as the matrimonial property without any complaint together with her family the Plaintiff inclusive 10 until of late when the Defendant chased her from her matrimonial home and even demolished the house claiming that the late mother in law who is the mother to the Plaintiff gave the Suitland to the Defendant's late husband.

The Appellant/Defendant in her Written Statement of Defence filed on the 11/01/2016 denied the claims of the Appellant/Plaintiff averring that before the 15 Defendant's marriage to one Zindonda Vincent in 1982 the Defendants' mother in law had bequeathed in writing pieces of land including the Suitland to the Defendants' husband and that since then the defendant and her husband continued using the Suitland without any disturbance and without any claim from any one until the death of the Plaintiffs' mother.

- 20 At the scheduling two issues were raised for determination: - 1) Whether the suit land forms part of the estate of the late Vereriano Rwakacwa. - 2) Remedies available.

The trial Magistrate on 08/09/2022 delivered his Judgment in favour of the 25 Respondent/Plaintiff declaring her the lawful owner of the suit land and a permanent injunction was issued restraining the Defendant from accessing the Suitland.

- 5 The Appellant being dissatisfied with the Judgment appealed to this Court on the following grounds; - 1) The learned trial Magistrate erred in law and fact when he made a finding that the suit land belongs to the Respondent/Plaintiff without any credible evidence on record thus causing a miscarriage of justice. - 10 2) The learned trial Magistrate erred in law and fact when he ignored /or omitted the findings at locus inquo in accordance with the recognized principle of the law and thus resulting into a wrong decision. - 3) The learned trial Magistrate erred in law when he stated that the Defendant made contradictions and was inconsistent in her testimony contrary to 15 evidence on record thus resulting into a wrong decision. - 4) The learned trial Magistrate erred in law in failing to evaluate properly evidence on record hence reaching a wrong decision.

#### **Representation.**

The Appellant was represented by Messrs Beitwenda & Co. Advocates and the 20 Respondent was represented by Messrs Bikangiso & Co. Advocates. The parties proceeded by way of Written Submissions.

### **Duty of first Appellate Court.**

The duty of this Court is to re-appraise the evidence on record and come up with its own conclusions bearing in mind the fact that it did not have the opportunity 25 to observe the demeanor of witnesses.

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

5 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 evaluation of evidence, which evidence as a result was not considered in its proper 10 perspective.

#### **See Peter versus Sunday post [1958] EA 429.**

#### **Preliminary objections**.

Counsel for the Appellant raised two Preliminary objections to the suit in Civil Suit No. 0160 of 2015 which is rather strange since in my view they could have 15 formed grounds of appeal none the less the first was that the Respondent had sued in her personal capacity seeking declaration that the suit land belonged to her as per the Plaint filed on the 24/11/2015 but that on the 03/11/2017 the Respondent/Plaintiff amended her Plaint and sued as a legal representative in the capacity of an Administrix of the Estate of Veleriano Rwakacwa her father who 20 died in 1981 as per the evidence of witnesses on record.

It is the argument of Counsel that the Respondent sued in her personal capacity and later changed that she is an administrator of the estate of the late Valeriano Rwakacwa thereby changing entirely the cause of action. Counsel further presses the point that no Letters of Administration were attached to the pleadings for the 25 Plaintiff to have capacity.

5 It is therefore the submission of Counsel that the Plaintiff had no capacity to sue and sustained no cause of action against the Appellant and prays that Court expunges the amended Plaint.

Counsel for the Respondent in his Written Submissions in reply contends that the preliminary objection on propriety of the amended Plaint was raised before in the

10 lower Court and the same was overruled.

Counsel relies on the authority in **Israel Kabwa versus Martin Banoba Mugisha SCCA No. 0052 of 1995** in which the count held that a beneficiary can sue without Letters of Administration to prevent wastage of an estate where he/she has a beneficiary interest.

15 It is the argument of Counsel for the Respondent that the Respondent has a beneficial interest on the suitland as she is the remaining surviving child of the late Veleriano Rwakacwa and that there is no change in the cause of action.

#### **Determination:**

I have perused the record of proceeding and find that the Respondents Counsel 20 rightly submits that this preliminary objection was dealt with by the trial Magistrate after it was raised by Counsel for the Appellant/Defendant.

The trial Magistrate made a finding that the Respondent/Plaintiff had locus to file the instant suit being a beneficiary of the Estate of the late Veleriano Rwakacwa.

The trial Magistrate relied on the decision **in Israel Kabwa versus Martin** 25 **Mugisha [Supra]**

5 Counsel for the Appellant in my view in light of the above ought to have made this a ground of appeal and not raised it as a preliminary objection since the trial Court had pronounced itself on the same.

The above fact not withstanding I agree with the decision of the trial Magistrate that the Respondent/Plaintiff being a beneficiary and sole surviving biological 10 child of the Estate of the late Veleriano Rwakacwa was competent to bring the suit and amendment did not vitiate her right to do so.

The amendment I am also satisfied did not change the cause of action. The first preliminary objection shall therefore be overruled.

The second preliminary objection raised by Counsel for the Appellant was that 15 the Respondent/Plaintiff pleaded under the irregular Plaint that she was seeking recovery of Suitland which formed part of the estate of the late Rwakacwa Vereriano who died in 1981 a period of 34 years before the suit was lodged. Counsel contends that **Section 20** of the **limitation Act** prescribes a period of 12 years from the date when the right to claim a share arises and that the Respondent 20 did not plead any exceptions to this law and that her suit ought to be dismissed.

The Respondents Counsel in reply contends that the Respondent/Plaintiffs suit was a claim in respect of recovery of land over trespass. To buttress his point Counsel relies on the decision **in Justin E. M. N Lutaaya versus Stirling Civil Engineering Co. Ltd. SCCA No. 0039** of **2003** in which the Court held that 25 trespass to land was a continuing tort, if it is proved that there is an unlawful entry on the land and such entry is followed by its continuous occupation or exploitation the date of the alleged entry is of little significance.

Counsel therefore prays that the 2nd 5 preliminary objection is rejected.

#### **Determination.**

It must be pointed out that the issue of limitation was never raised before the trial Court.

The Supreme Court in **Uganda Rail Ways Corporation versus Ekwaru D. O and**

10 **133 others SCCA No. 0007 of 2019** held that the general rule is that an Appellate Court should not traverse any ground on appeal that has not been traversed at the trial Court. However, the exceptions are whether the assessment of those issues can be made without need for extraneous evidence not on record.

It is the evidence of the Respondent that her father Veleriano Rwakacwa passed 15 away in 1981 and that upon his death he left the properties with her mother who gave her the suit land to take care of and that her mother died in 2011 intestate and it was in 2013 when the Appellant/Defendant started to claim the suit land while she was still utilizing it. The suit was later filed in 2015.

- The submissions of Counsel for the Appellant/Defendant that the suit ought to 20 have been filed 34 years in 1981 when Veleriano Rwakacwa passed on is not tenable. The evidence is clear that the properties were left to his wife Mariana Karomba who managed the same until her death in 2011. The Respondent/Plaintiff cannot therefore be faulted for not instituting an action when she had no mandate to do so. - 25 I therefore find the suit filed in 2015 about 4 years after the death of the Respondent/Plaintiffs' mother to be a competent suit.

The 2nd 5 preliminary objection is also overruled.

I will move on to determine the merits of this Appeal.

#### **Submissions of Counsel for the Appellant.**

Counsel for the Appellant argued grounds 1, 2, 3 and 4 jointly.

It is the submission of Counsel that the Respondent who testified as PW1 sued in 10 contrary capacities that she was the lawful owner of the Suitland and that the suit land formed part of the undistributed estate of the late Vereriano Rwakacwa. That she further sued the Appellant for having trespassed upon her land having acquired the suit land in 1995 from her mother, the late Mariana Karomba. Counsel contends that the Plaintiff/Respondent never brought any proof of 15 ownership of the Suitland and to make matters worse the Respondent claimed the suit land to be part of the estate of the late Vereriano Rwakacwa. According to Counsel the evidence presented reveals that the late Vereriano Rwakacwa did not own the Suitland and to this effect Counsel relies on PEX1 that highlights that the late Zindonda was exchanging the suit land with Mariana Karomba and that 20 it would only suffice as an estate of the late Mariana Karomba and that under cross-examination, the Plaintiff/Respondent maintained that the suit land is hers and that she obtained the same in 1995 a typical departure from her pleadings **Contrary** to **Order 6 Rule 7** of the **Civil Procedure Rules**.

Counsel is critical of the trial Magistrate for holding that the suit land was for the 25 Plaintiff and yet she claimed the same as an estate of her late father and one of the prayers in her Plaint was a declaration that the suit land was a share of the Respondent and yet at the same time she claimed absolute ownership.

- 5 Counsel for the Appellant also points out contradictions in the Respondents evidence that she contradicted herself when she testified that she had been in possession of the suit land since 1995 and the house there on until 2013 when the Appellant trespassed and then contradicted herself that it was her sister who was using the suit land. Further that the Respondent admitted that upon migrating 10 the Defendants husband was using the house on the suit land but that the house was locked and not being used by any one. Counsel highlights that PW2 also admitted that Zindonda was using the suit land and then contradicted himself that it was the Respondents' mother who was using the suit land until 2013 and in cross-examination testified that no one was using the suit land. Counsel 15 therefore contends that the Respondent had never taken possession of the suit land in 1977. Counsel for the Appellant further contends that the allegations that the Defendant demolished and chased away the Plaintiff were not proven as in fact PW1, PW2 and PW3 confirmed that the house in issue was demolished by Zindonda the Defendants' husband and there was no one staying therein at the 20 time. It is the argument of the Appellants' Counsel that none of the Plaintiffs' witnesses tendered in evidence of any gift deeds that the late Mariana Karomba had given the suit land to the Respondent and that PW1 testified that there was never an agreement made giving her the Suitland but that PW2 contradicted that there was an agreement and the said late Mariana had invited PW3 and himself 25 while he gave the Suitland to the Respondent. Furthermore, at the locus Counsel submits that the grave of the Defendants' late husband was seen yet he died in 1999 and the Respondent only protested in 2015. The evidence of the Plaintiff according to the Appellants' Counsel depicts untruthfulness and deliberate perversion of the truth in order to grab the Respondents' land. - 9

- 5 According to Counsel for the Appellant the Appellant/Defendants' evidence on the other hand was coherent and corroborated each other. That DW1 testified without any challenge that the Suitland is hers having inherited it from her late husband in 1999 and upon his death she remained in possession of the same until the Plaintiff started claiming it as her own, later on as the estate of her late father. - 10 That it is indeed true that the suitland had been a subject of exchange between the Appellants' late husband and his mother Mariana Karomba but while she was migrating to Bunyoro in 1998 she returned the suitland to the late Zindonda who kept in possession until his death and the Appellant inherited the same. That the evidence of the Appellant was well corroborated by her witnesses in DW2, DW3 - 15 and DW4 who testified that on the date Mariana was migrating she indeed gave land to her 3 children including the Plaintiff who later sold hers and the suitland was returned to the Respondents' late husband who took possession.

#### **Submission of Counsel for the Respondent.**

It is the submission of the Respondents' Counsel that the Respondent/Plaintiff is 20 the only surviving biological daughter of the late Mariana Karomba and a beneficiary of the late Vereriano Rwakacwa. That the Respondent to prove her case adduced two witnesses and PW3 testified that the Suitland was given to the Respondent by her mother to utilize it and to confirm that Respondent was the custodian the reconciliation document dated 30/07/1984 was tendered in Court 25 as PEX1. It is the argument of Counsel that the late Vereriano Rwakacwa died in - 5 1981 and upon his death thjve Plaintiff's mother did not acquire Letters of Administration which meant that the Suitland stayed as family land under the estate of Vereriano Rwakacwa so it was just and right for the Respondent to acquire Letters of Administration for the estate of Vererriano Rwakacwa and not for her mother, Further that though the late Mariana Karomba exchanged the 10 Suitland with another piece of land with the late Ziondonda, she did so for the benefit of the family and that does not mean that the exchanged piece of land ceased to form part of the estate of late Veririano Rwakacwa and that it is therefore wrong for the Appellant to state that the Suitland could only suffice as an estate of the late Mariana Karomba. - 15 Counsel for the Respondent criticizes the Appellants' Counsel for relying on the evidence of PW2 yet he had been declared a hostile witness by the Respondent.

Counsel contends that PW1 testified that she was not staying on the Suitland but instead it was her sister Joventa who was staying in the house but that PW1 was using the land. According to Counsel this does not ammount to a contradiction.

20 Counsel also submits that Respondents' father was buried on the Suitland a reason why the Appellants' husband was buried on the Suitland since the deceased had requested that when he dies he be buried near his parents' grave.

## **Determination.**

## **Section 101** of the **Evidence Act** provides;

25 *"(1) whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.*

5 *(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person"*

The above provision read together with **Sections 102** and **103** of the **Act** places the legal burden on the Plaintiff to prove his or her case on the balance of probabilities.

10 The trial Magistrate was clearly alive to this position of the law and cited the same in his Judgment.

The only documentary evidence that was presented in the trial was PEX1 by the Plaintiff and the same was not in contention.

PEX1 relates to the exchange of land between the Plaintiff/Respondents' mother

15 and Zindonda Vincent the husband of the Appellant/Defendant whereby the Appellants' husband took possession of the banana plantation located at Makanga while the Respondents' mother took exclusive possession of the land located at Mukirwa which is the Suit property.

The crux of the matter that follows is to who did the late Mariana Karomba 20 bequeath this property. The trial Court in answering this question did so by resolving the issue of whether the Plaintiff is the lawful owner of the Suitland.

The trial Magistrate believed the evidence of the Plaintiff that she is the owner of the Suitland having acquired it from her mother in 1995 and that by the time that her mother went to Bunyoro she had already distributed her land and that the

25 Suitland was never given to Zindonda (husband to the Defendant).

5 The trial Magistrate did not address the contradictions in the Appellant/Plaintiffs' evidence or offer some sort of explanation for these contradictions.

The Respondent in her witness statement avers to having obtained the Suitland from her late mother Mariana Karomba in 1995 and ever since then took immediate possession without any interference from anyone until the Defendant

- 10 trespassed on it in 2013. The Respondent in cross-examination admitted that she was not staying on the Suitland but that she was using the same. The Respondent does not elaborate on how she was using this land. The Respondent avers to being in possession without interference until 2013 when the Appellant trespassed on the Suitland but in cross-examination testifies that the Appellant in 2000 chased - 15 her sister Joventa who was staying on the Suitland. The chasing of Joventa in 2000 if at all true was a challenge to the Respondents' claim and therefore contradicts her earlier claim.

The Respondent in her Witness Statement stated that the husband to the Defendant/Appellant was not staying on the Suitland but later in cross-20 examination admitted that the house of Zindonda the husband of the Appellant is still on the Suitland and still under the same cross-examination stated that the house where Zindonda was staying is next to the Suitland, further she denied that Zindonda was not buried on the Suitland. The shifting responses of the Respondent/Plaintiff cast doubt as to whether the Respondent was being truthful.

25 I will return to this issue later in my Judgment.

The trial Magistrate also made a finding that the evidence of the Respondent/Plaintiff was corroborated by that of Habasa Josephat (PW2) that he

5 testified that he was present when the Plaintiffs' mother distributed her property before she shifted to Bunyoro.

Counsel for the Appellant launched an attack against the evidence of PW2 highlighting that it contradicted that of the Respondent to which the Respondents' Counsel responded that the Appellant should not rely on this evidence because 10 PW2 was declared a hostile witness by the Respondent/Plaintiff. It is interesting to note that Counsel did not criticize the trial Magistrate for basing on the evidence of PW2 to corroborate the evidence of the Respondent/Plaintiff.

That said, I have studied the record of the lower Court and the witness statement of PW2 was admitted as his evidence in Chief before he was subjected to rigorous

- 15 cross-examination by Counsel for the Appellant/Defendant. The Respondents' Counsel therefore re-examined the witness thereafter with what I could consider to be a single question to which the witness replied. The record of proceedings then ends abruptly with the trial Magistrate signing of the record without formally adjourning the matter. I have looked at the hand written record with the - 20 hope that it offered more detail but it does not. The certified copy is a replica of the hand written record. It is not clear why the trial Magistrate ended his proceedings in such an unusual manner and the reason for this concern is captured on the proceedings of the 22/09/2021 that is the next date when this mater came up, Counsel for the Respondent/Plaintiff addresses the Court as 25 follows:

*"The matter is for the Plaintiff. We had prayed that the matter be stood over for further re-examination of PW2. The witness turned hostile and was not*

5 *appreciating the questions. I am praying that the evidence of PW2 be expunged from the record"*

As already highlighted above the submissions of Counsel for the Respondent/Plaintiff was not supported by the record. It is therefore not possible to ascertain whether there was a prayer to stand over re-examination which is a 10 very strange procedure and furthermore that the prayer that a witness has turned hostile and his evidence be expunged is made after the witness has been crossexamined and the prayer is made at re-examination and this on the basis that the witness had not fully appreciated the questions.

As expected Counsel for the Appellant/Defendant opposed the prayers of the 15 Respondents' Counsel and I will for clarity reproduce the same below:

*"The last appearance the witness appreciated the questions. He admitted that he is an adult of sound mind. The Plaintiff being aware of his conditions presented him as a witness. We want medical records that impose that the witness suffers lapses, giving bad evidence for a party does not mean that one is a hostile witness.*

20 *I pray that the evidence be maintained. Section 153 of the Evidence Act, we shall produce the witness in Court to establish whether he understood the questions put to him or not."*

The Court thereafter proceeds to give the order:

*"PW2 recalled under Section 153 of the Evidence Act"*

25 The entire record thereafter does not refer again to PW2 but the Court merely moves on to PW3.

5 I would like to think that the prayer to proceed under Section 153 of the Evidence Act was made by the Respondent/Plaintiffs' and not by the Appellant/Defendants' Counsel because under the provision cited it is the party who called the witness who can pray to the Court to be allowed to put any question to him or her which might be put in cross-examination by the adverse party. The record was therefore 10 not taken properly by the trial Magistrate and the Court proceeded to grant the same. The Plaintiff/Respondent did not reproduce PW2 and there is no record that the Court expunged his testimony. As a result, the trial Magistrate relied on the same to corroborate the Respondent/Plaintiffs evidence and this rightly so since it was not expunged from the record. It is therefore only fair and just that 15 on appeal the Appellant/Defendant is allowed to rely on the same in support of her appeal. The submission of Counsel for the Respondent/Plaintiff that PW2 was declared a hostile witness and his evidence cannot be relied upon is therefore misplaced and not supported by the record.

The evidence of PW2 contradicts that of the Respondent/Plaintiff in a material 20 respect because while the Respondent testified under cross-examination that the Appellant chased her sister Joventa in 2000 from the Suitland, PW2 under crossexamination testified that Joventa went with her mother to Ibanda which corroborates the evidence of the Appellant that Joventa got married in Ibanda. This would mean that Joventa moved in 1995 with the Respondents' mother and 25 the Respondents' claim that it was the Appellant who demolished the old house in which her mother was living is also contradicted by PW2 who testified that the house was demolished by Zindonda the husband of the Appellant and that at the time of demolition no one was staying in the house. The evidence of PW2

5 corroborates the evidence of the Respondent that at the time when her mother in law died in 1995 she was still at her parents' home and at that time her late husband and the 2nd wife were in possession of the Suitland unchallenged by the Respondent who was staying in the sub county.

The evidence that Zindonda the husband of the Appellant demolished the house 10 in which his mother lived lends credibility to the claim of the Appellant that the land belonged to him because there is no evidence that the Respondent during the life time of Zindonda ever challenged his ownership of the Suit property.

PW2 also revealed that the house of Zindonda was close to that of his mother. This corroborates the evidence of the Appellant that her husband and her late

15 mother in law shared the same compound. PW2 in re-examination also confirmed that the child of Zindonda from the 2nd wife was buried on the Suitland having denied this previously under cross-examination.

It is quite apparent that PW2 corroborated more of the Appellant/Defendants' evidence than that of the Respondent/Plaintiff whose evidence he seriously 20 contradicted hence the attempt to declare him a hostile witness. The trial Magistrate was not alive to these contradictions. The trial Magistrate therefore did not properly evaluate the evidence of PW2 I so hold.

The evidence of the Respondent/Defendant that the Suit property belonged to her late husband Zindonda is well corroborated by DW3 and DW4 who testified to

25 having been present when Mariana Karomba shared her land amongst her children before she migrated to Bunyoro. Both DW3 and DW4 testify to the effect that Vincent Zindonda the husband of the Respondent/Defendant received the

5 Suit property in 1995 and according to DW3 he actually authorized the document that he states he handed over to Zindonda and does not know where he put it.

The Appellant in her witness statement avers that her daughter Ambera Adella told her that her late husband had instructed her to give all the agreements to Mr. Habasa Josepha (PW2) in 1999 for safe custody while her husband was sick.

- 10 However, PW2 denied receiving the said documents and the trial Magistrate capitalized on the same to find that the Appellant was self-contradictory, inconsistent and untruthful in her testimony and that this was a major contradiction that waters down her testimony. I hold the view that the trial Magistrate went overboard in his description of a single statement by the - 15 Appellant that was not corroborated. The fact that PW2 did not corroborate the evidence of the Appellant does not amount to self-contradiction in any case.

The Appellant presented more evidence that the trial Magistrate ought to have analysed.

The locus visit conducted by the Court on the 14/12/2021 revealed that the 20 Appellants' late husband Zindonda was actually buried on the Suitland and this rebuts the evidence of the Respondent that the Appellants' husband was never buried there. The locus notes also reveal that graves of the Appellants' children are on the Suit property together with that of the Respondents' father.

The existence of these graves, that is that of the Appellants' husband and children 25 on the Suitland is strong corroborative evidence that the Suitland was owned by the Appellants' husband.

There is no evidence that the Respondent has ever been in possession of the Suitland.

The Respondent/Plaintiff simply did not adduce any credible evidence to support her claim. The Respondent did not meet the threshold of proving her case on the 10 balance of probabilities I so hold.

The 2nd ground of appeal has been answered in my analysis above and I find no need to repeat the same.

In the final result this appeal succeeds on all 4 grounds.

The Appeal is therefore allowed and the Judgment and Orders of the trial

15 Magistrate are hereby set aside. The costs of this appeal and Court below are awarded to the Appellant.

It is so ordered.

Before me,

20 ………………………………………….

**Samuel Emokor Judge 05/09/2024**