[2025] UGHC 431

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OFUGANDA AT TORORO CIVIL APPEAL NO. 0021 OF 2022 [FORMERLY MBALE CIVIL SUIT NO. 127 OF 2022] [ARISING FROM BUSIA CIVIL SUIT NO. 029 OF 2015]**

**WAFULA MUKAS SAMUEL::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

## **VERSUS**

- **1. PETER BUCHUNJU** - **2. WABWIRE FRANCIS** - **3. TABU SIRAJ :::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

## **JUGDMENT**

# **BEFORE: HON. DR. JUSTICE HENRY I KAWESA**

This is an appeal was filed in this Honourable Court against the judgment and the orders of the Chief Magistrate of Busia dated the 17th August 2022. The appeal raises on four grounds as here below:

- 1. The learned Chief Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby reaching an erroneous decision against the Appellant. - 2. The learned Chief Magistrate erred in law and fact when he visited the *locus in qou* but never established what was on the suit land - 3. The decision of the Magistrate is tainted with fundamental misdirection and nondirections.

4. The decision of the magistrate has occasioned miscarriage of Justice to the Appellant.

## **DUTY OF FIRST APPELLANT COURT**

A distinguishing characteristic of the first Appellant Court in Uganda, such as the High Court when hearing appeals from Magistrates Courts, it is its explicit duty to "*re-evaluate the evidence on record and come up with its own conclusion*". This stands insignificant contrast to the general common law principle, which typically limits Appellant review to points of law. This duty requires the Appellant Court to "*review the evidence of the case and to reconsider the materials before the trial judge*" ultimately forming its "*own mind, not disregarding the judgment appealed from but carefully weighing and considering it*"

The *Supreme Court* set out this duty in *Kifamute Henry v Uganda, SCCA No. 10 of 1997* as follows:

"*The first Appellant Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The Appellant Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it*."

This Supreme Court case clarified the precise scope and limitations of the re-evaluation duty in the case of *Bujagali Energy Limited v Kafumba (Civil Appeal 18 of 2021) UGSC*, Where the Court of Appeal (acting as a first Appellant Court) had ordered a retrial because the High Court (trial Court) had dismissed the case on procedural grounds without ever hearing it on its merits. The Supreme Court "*reinforced the principle that Appellant Courts cannot substitute their own findings when a case has*

*never been heard on its merits*". It stated, "*A first Appellant Court is duty-bound to reappraise evidence only where a trial Court has considered it on the merits*"

## **DETERMINATION**

## **GROUND 1.**

The learned Chief Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby reaching an erroneous decision against the Appellant. Under this ground the Appellant complains that the Magistrate failed to evaluate the evidence on record and reached an erroneous decision against the Appellant.

Before reaching a conclusion as to whether this assertion is right or not this Court will on its own motion review the evidence on record to see whether it supports the Plaintiffs claim as a whole. According to the plaint, the case against the Defendant was for a declaration that the Defendants were trespassers on the Plaintiffs land. The 1 st and 2 nd Defendants had held a meeting where after they demarcated off between 4-5 Acres of the Plaintiffs land and handed it over to the 3rd Defendant.

In the joint written statement of Defense and under paragraph 6 the Defendant stated that it was true that the land was demarcated and boundary marks were planted. Under paragraph 8 it was true that the land had been divided among the children and was later sold.

The evidence on record as led by the Plaintiff was given through PW1; Wafula Mukasa Samuel, PW2; Nabwire Efumbi, PW3; Magero Ereneriyo Wabwire, PW4; Madube Mustafa who all in essence confirmed that a meeting took place where the land was demarcated and given out to DW3 by the clan.

For the defense evidence was given through DWI; Buchunju Wakide, DW2;Wabwire francis, DW3; Nyero Peter, DW4; Mayende Bosco and DW5; Taabu Siraj. The evidence of the defense is that the Plaintiff's father had been given a smaller portion of land which belonged to DW3's father and it's on that small portion where he was buried. However, the Plaintiff had encroached on the suit land and extended his boundaries on the land which belongs to DW3 and he intends to grab it.

The Court visited *locus*. The trial Magistrate returned a judgment in which he reviewed the evidence and dismissed the Plaintiffs case with costs.

## **Burden of proof.**

In all civil matters the burden of proof is on the Plaintiff to bring evidence before Court which proves his case on the balance of probability. It is also a principle of evidence that whoever asserts a fact before Court and wishes the Court to believe that fact has a burden to lay before Court evidence in proof of that fact see **Section 101 of the Evidence Act, Cap 6** which provides that:

"(l) 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.

(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"

Further, **Section 103 of the Evidence Act** provides that the "burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless

it is provided by any law that the proof of that fact shall lie on any particular person" Therefore, in this particular case the Plaintiff had a burden to prove in Court that the land belongs to be Plaintiff. In civil proceedings, the burden of proof lies upon he who alleges. The standard of proof is on a balance of probabilities.

I have carefully evaluated the evidence adduced and I have come to the conclusion that the defense put up a stronger case against the Plaintiffs' claims of ownership necessitating particular rebuttal of these allegations. For example, it was the defense case through DWI and D W2 that's the suit land was given out by 1 st and 2nd Defendant to the 3rd Defendant and claimed by the Plaintiff was part of land they had given to the Plaintiff 'father in order to bail him out and that the land however belonged to the father of DW3.

The evidence by the Plaintiff does not address this allegation though the Plaintiff through all his Witnesses agreed that a meeting was held where this land was demarcated in his presence by the clan. It is also not disputed that this is land was customarily held through inheritance.

The Plaintiff in his witness statement claimed that his late father left him 10 acres of land to take care of when he relocated to Buganda and that was in the year 1981 and that in the 1987 his father died leaving him the 10 acres. However, this is challenged by the evidence of the DWI; Peter Buchuju who said in his statement that the Plaintiffs father had sold off his share of the customary land when relocating to Buganda and when his father returned in 1985 they approached him and the 2nd Defendant to help them to resettle It was then that the 2nd Defendant and the 1st Defendant chopped off a piece of the customary land belonging to the 3rd Defendant and gave it to the Plaintiffs father. He

further confirms that it is the Plaintiff who started encroaching on this land and escalated the dispute into a Court case.

Looking at the evidence that the Magistrate put down at the locus and particularly the evidence gathered for clarification about this point as given by DW2; Wakide Wasike, he

insisted that it was him who was left to care take the land, and that he had been in charge, taking care of the land in dispute which consisted of 4 pieces since 1983 and that the Plaintiff only came on that land in 2015.

He also doubted the authenticity of the grave that was on the land and opined that burial could not have taken place there without him knowing since he had never left the village to go anywhere. He said that he had participated in erecting the boundary marks for the land claimed by the Plaintiff and he knew exactly where it begins and stops.

The evidence at the close of the Plaintiffs case does not support his pleadings and claims that the land in question belongs to him. The evidence does not prove on the balance of probability that this land in dispute belonged to his father and was left to him, This ground therefore fails.

## **Grounds 2,3, and 4 will be determined together.**

### **Ground 2.**

The learned Chief Magistrate erred in law and fact when h he visited the *locus in qou* but never established what was on the suit land Ground 3.

The decision of the magistrate is tainted with fundamental misdirection and nondirections.

# **Ground 4.**

The decision of the magistrate has occasioned a miscarriage of Justice to the Appellant

I having found under ground 1 that the Plaintiff failed to establish his case on the balance of probability, it therefore follows that the trial Magistrate came to a correct conclusion. He was not erroneous; neither did the finding occasion any miscarriage of Justice. The visit to *locus* was done professionally and the conclusion based there on did not prejudice the findings of the Court. Therefore, I find no merit in each of the allegations listed under grounds 2,3, and 4 above and they fail accordingly.

In all the appeal has no merit and is dismissed with costs

I so order.

………………………….. Dr. Henry I. Kawesa **JUDGE** 29/05/2025