[2024] UGHC 1134

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

#### CIVIL APPEAL HCT-16-LD-CA-0034 OF 2023

#### WASSWA JOSEPH SALONGO:::::::::::::::::::::::::::::::::::

#### **VERSUS**

MATOVU TADEO:::::::::::::::::: **EXECUTE: THE RESPONDENT** [Appeal from the judgment and orders of H/W Abuddallah Kaiza Erias, Magistrate Grade I, Hoima Chief Magistrate's Court at Kakumiro in Civil Suit No. 22 of 2017 dated 5/7/2023]

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA JUDGMENT

### **Background**

- The Appellant sued the Respondent for inter alia, trespass and a $[1]$ declaration that he was the rightful owner of the suit Kibanja measuring 20 acres situate at Wampu Kijaragazi L. C. I, Kyebando, Kasambya Sub-County, Kibaale District, special and general damages and costs of the suit. - $[2]$ It was the Appellant/Plaintiff's case that in around 2008, he acquired a kibanja by way of exchange from the late Kibuuka Paul, in 2011 he bought 2 other Bibanja from a one John Ngororabanga and Mfutandinda Erinet which he amalgamated into a cattle farm by way of fencing. He averred that the Respondent/Defendant barbarically and forcefully broke the fence with intent to annoy and also grab the land. That the Respondent evicted all the Appellant's cattle and carried out cultivation activities on the farm. - The Appellant contended that as a result of the Respondent's $[3]$ outrageous conduct onto the land/Kibanja, the Appellant has suffered trauma and loss of income for non-use of the Kibanja for which he held the Respondent liable in special and general damages.

- The Respondent in his amended Written Statement of Defence $[4]$ (WSD) denied the Appellant's claims and averred that he is the registered owner of land at Buhungiro, Mumyuka, Kakumiro District comprised on Block 264, Plot 2 measuring 32.4 hectares (the suit land) where he has been raised and stayed, and is also a burial ground for his family. - On $7/3/2023$ , the parties entered into a consent on the 10 acres of $[5]$ the suit land to the effect that the Respondent has no interest thereon and therefore rightfully belonged to the Appellant. The suit land herein is therefore the remainder of **approximately 10** acres. - The trial Magistrate on his part, upon correctly addressing himself $[6]$ on burden of proof in civil cases that it lies on the Plaintiff to prove his case on the balance of probabilities, Miller vs Minister of Pensions [1947] 2 ALL ER 372 at 373 found that there was no evidence that the Appellant acquired the disputed Kibanja by possession or occupancy in 1982. That findings at locus confirmed that the suit portion of land was of a one Kibuuka, father to the Respondent and had grave yard of Kivebulaya, grandfather and father to the Respondent respectively. Judgment was accordingly given in favour of the Respondent, dismissing the Appellant's suit and therefore that the Respondent is not a trespasser on the suit land. - The Appellant was dissatisfied with the judgment and orders of $[7]$ the trial Magistrate and lodged the present appeal on the following grounds: - The learned trial Magistrate erred in law and fact in finding $\mathbf{1}$ . that:

(a) The suit Kibanja belongs to the Respondent when his case was exclusively founded on a registered interest comprised in Block 264, Plot 2.

(b) The Respondent is not a trespasser on the suit Kibanja thereby occasioning a miscarriage of justice.

- The learned trial Magistrate erred in law and fact when he $2.$ mischaracterised and ignored the findings of the court appointed District Surveyor in respect of the suit Kibanja, thereby occasioning a miscarriage of Justice. - The learned trial Magistrate erred in law and fact when he $3.$ premised his findings on pure conjecture and speculation, thereby occasioning a miscarriage of justice. - The learned trial Magistrate erred in law and fact when he $4.$ failed to properly evaluate evidence on record thereby arriving at a wrong decision.

#### **Counsel legal representation**

The Appellant was represented by Mr. Wosamwa Emmanuel of $[8]$ M/s P. Wettaka Advocates, Kampala while the Respondent was represented by Ms Jane Frances Nakibuuka of M/s Kasumba, Kugonza & Co. Advocates, Kampala. Both Counsel filed their respective submissions for consideration of this court in the determination of this appeal.

#### Duty of the $1^{st}$ Appellant Court.

[9] This court being the $1^{st}$ appellate court, it has a duty to re-hear the case and to reconsider the materials before the trial court. The appellate court must then make up its own mind not disregarding judgment appealed from but carefully weighing and the considering it, Kasozi Lawrence vs Uganda S. C. Crim. Appeal No. **13 of 2009.** This court is in the premises duty bound to subject the evidence on record that was before the trial Magistrate to fresh and exhaustive scrutiny and arrive at its own inferences and conclusions of whether the trial court's decision must stand or not. see also Fr. Narsensio Begumisa & 3 ors vs Eric Tibebaga S. C. C. A No. 17 of 2000; [2004] KALR 236.

#### **Preliminary objection.**

- [10] Counsel for the Respondent in her submissions raised a preliminary objection to the effect that parties to the appeal agreed in the lower court that execution is stayed on condition that the $500,000/=$ Applicant/Appellant deposits $\overline{as}$ security $\quad\textbf{for}\quad$ performance of the decree. Relying on the case of Mulindwa George William vs Kisubika Joseph, S. C. Civil Application No.28 of 2014. Counsel submitted that the Appellant did not fulfil the condition of depositing security for performance of the decree and therefore, the appeal should not succeed on this point of objection. - [11] Counsel for the Appellant however submitted that whereas it is true that the Appellant applied for stay of execution vide **Misc.** Application No. 25 of 2023 and court required him to remit security for performance of the decree, the Appellant duly discharged that duty on 10/10/2023 and was accordingly issued a receipt to that effect. That besides, the sum was a condition for stay of execution and not a condition for appeal. - [12] Though this court has however not been able to see the receipt on record as proof that the Appellant fulfilled the stay of execution condition of depositing the **Ugx.** $500,000/=$ , in agreement with Counsel for the Appellant, I find that this requirement to condition for the Appellant to deposit the said sum of **Ugx.** $500,000/$ = was a condition for stay of execution and not a condition for appeal. The non-payment of the sum or fulfilment of the condition would only affect the order for stay of execution thus execution would ensue and not the appeal itself. - [13] The preliminary objection is in the premises accordingly overruled.

#### Merits of the Appeal.

[14] A close scrutiny of the Appellant's 4 grounds of appeal show that all the grounds revolve on how the trial Magistrate evaluated the evidence before him to arrive at the conclusion that the Appellant failed to prove his case thus dismissing the suit.

Grounds 1-4: Evaluation of evidence.

- [15] Counsel for the Appellant submitted that the learned trial Magistrate erred in finding that the suit Kibanja belongs to the Respondent when the said Respondent's case was entirely founded on a registered interest comprised in **Block 264, Plot 2** and yet, the court's appointed witness, John Byarugaba (PW4) and the Kibaale District Staff Surveyor's report (P. Exh.5) is to the effect that the suit Kibanja does not fall on the Respondent's Block 264, **Plot 2.** That on the other hand, the Appellant's claims a Kibanja on registered property comprised on Block 263 of Maliko **Kyeyune** as the registered proprietor thereof. - [16] Counsel for the Appellant concluded that if the Respondent's interest is exclusively founded on property comprised in Block 264, Plot 2 and not Block 263, then undoubtedly he is a trespasser on the Appellant's Kibanja that sits on **Block 263**. - [17] Counsel for the Respondent on the other hand submitted that as per Sections 100-102 of the Evidence Act, he who alleges the existence of certain facts must prove them if he is to succeed. That the Appellant brought an action in trespass against the Respondent concerning the suit Kibanja and therefore was under duty to prove the existence of trespass by the Respondent which he failed, thus by the trial court finding that the Respondent was not a trespasser on the suit Kibanja was valid since the Respondent's land was never a subject of dispute. - [18] I agree with the Counsel for the Respondent's position as regards the case that was at hand. The Respondent's land comprised in Block 264, Plot 2 was never a subject of dispute. The Appellant's case as his pleadings, para 4 was as follows: - "(a) In around 2008 the Plaintiff [Appellant] acquired a Kibanja by way of exchange from late Kibuuka Paul at Wampu,

Kijagarazi L. C. I, Kyebando (Attached is a copy of the agreement marked annexure 'A').

- In 2011, the Plaintiff [Appellant] also bought yet another $(b)$ Kibanja from JOHN NGORORABANGA in the same locality (Attached is a copy of the agreement marked annexure ' $B$ '). - On 12/11/2011, the Plaintiff [Appellant] bought another $(c)$ Kibanja from MFUTANDINDA ERINET (Attached is a copy of agreement marked annexure 'C'). - (d) The Plaintiff [Appellant] amalgamated the 3 bibanjas and formed it into a cattle farm. - (e) The Defendant [Respondent] without any color of right came from unknown place and entered onto the Plaintiff's Kibanja/land thereby encroaching about 20 acres which is estimated at a value of $20,000,000/=$ (twenty million shillings)". - [19] The above was clearly the Appellant's case. He was neither Respondent's title nor claiming that the disputing the Respondent's title encompassed or encroached on his Kibanja. The burden of proof was upon the Appellant to prove his case as pleaded on the balance of probabilities, Nsubuga vs Kavuma [1978] HCB 307. The Appellant's duty was only to prove that the Respondent's alleged activities of cultivation were on the Appellant's Kibanja. - [20] According to his pleadings, the Appellant's kibanja was about 20 **acres.** In the course of the trial, the parties entered a partial consent judgment dated $7/3/2023$ which is as follows: - That the Defendant [Respondent] has no interest in the $1)$ approximated ten (10) acres of suit property which the Plaintiff [Appellant] acquired through purchase from Mfutandinda Erinet and John Ngororabanga and as such, the land belongs to the Plaintiff [Appellant]. - That the suit property is now exclusively the remainder of $2)$ the approximated ten (10) acres of land which the Plaintiff acquired through possession/occupancy.

[21] The above consent signified that the pieces of bibanjas the 2011 from purchased in **Mfutandinda** and Appellant **Ngororabanga** indicated in the consent judgment as totalling to **approximately 10 acres**, ceased to be in dispute. What remained in dispute is the other **10 acres** which as per his pleadings in **para** 4 (a) of the plaint were acquired by way of exchange from the **late Kibuuka Paul.** It was not the Appellant's case that he acquired the remaining **10 acres** by way of possession/occupation in 1982. However, in evidence, the Appellant testified as follows:

> "I know the Defendant [Respondent] has title on Block 264 Plot 2, the title for the Defendant [Respondent] does not touch my suit property."

During cross-examination, he stated thus:

"I exchanged with Kibuuka Paul because the Defendant [Respondent] trespassed on my land...

We settled the matter by me offering two and a half acres to him and I was given one acre.

After getting one acre I never fenced it off, after the Defendant [Respondent] grabbed the one acre and Kibuuka was present by then and, I forgave Kibuuka and I let him use the land and even the two and a half acres.

As of now I have no claim on the two and a half acres which was given to Kibuuka".

[22] Clearly, the above excerpts of the Appellant's evidence show that the Respondent's title was not in any way in contention. The kibania the Appellant exchanged with **Kibuuka Paul**, the father of the Respondent was returned to late Kibuuka Paul, and therefore the Respondent is entitled to utilise it. The Appellant adduced no evidence of the remaining 10 acres of the kibanja he claims he acquired by way of occupation. Even if he did, he would be departing from his pleadings which is prohibited by O.6 r.7 CPR because he is bound by his pleadings. In Jani Properties Ltd vs Dar-es-Salam City Council (1966) EA 281, it was held that parties in civil matters are bound by what they say in their pleadings. "No party can be allowed to depart from pleadings".

[23] Indeed, the trial Magistrate concluded on the issue of ownership of the disputed Kibanja thus:

"I accordingly find that the disputed land belongs to the Defendant [Respondent] having gotten the same from his father Kibuuka Paul who also got the same from **Kivebulaya,** his grandfather since evidence came clearly that for long the Plaintiff [Appellant] has never utilised the same".

It should also be recalled that when court visited locus, the grave yard of the late Kivebulaya and Kibuuka were on the land. As per P. Exh.3, the kibanja the Appellant exchanged with Kibuuka Paul is **1 acre** and not $2\frac{1}{2}$ acres as he stated in his evidence or **10 acres** as he later claimed to be the suit land.

- [24] As regards the controversy surrounding the survey report by **John Byarugaba** (PW4), as correctly alluded to by Counsel for the Respondent, it was neither definitive nor conclusive as regards the issue of trespass at hand. The report only located the Appellant's kibanja and the Respondent's title without evidence or indicating as to whether the Respondent crossed his land to trespass on the Appellant's kibanja and destroy his fence and cultivate as the Appellant alleged. The PW4's report was definitely irrelevant to the Appellant's case. - [25] Therefore, by the Appellant's Counsel heavily relying on the survey report regarding the location of the Appellant's kibanja and the Respondent's title of land, that the kibanja was not sitting on **Block 264, Plot 2** of the Respondent and therefore, that it is proof of trespass, is inherently flawed. Counsel is merely shifting the burden of proof to the Respondent whose defence was essentially a denial of the Appellant's claims. Counsel asserting that the Respondents' impugned activities are on his registered land at **Buhungiro** whose boundary is with Kijagarazi where the Appellant claim his Kibanja is located is also not definitive and conclusive as per the explanation of the surveyor **PW4**.

[26] It is trite that the Plaintiff [in this case, the Appellant] has to prove his own case and cannot take advantage of the weakness of the defence. The failure of the Defendant to present a strong defence does not automatically entitle the Plaintiff a decree, **Dhapu Bai vs** Kundu MG Dellis, 2023 (3) MPLJ 396, see also Erisafani Muddumba vs Wilberforce Kuluse S. C. C. A. No. 9 of 2002 where Order, JSC observed thus:

> "No wonder counsel concentrated his attack on the case put forward by the Respondent forgetting the rule of law that the Plaintiff wins on the strength of his case and not on the weakness of the defence."

It was therefore crucial for the Appellant/Plaintiff to present compelling evidence and argument to support his case as required by ss 101 & 103 of the Evidence Act.

- [27] In this case, the Appellant was not definitive as regards the kibanja in dispute i.e. whether it is the **10 acres** he acquired through mere occupation in 1982 or the one he exchanged with the Kibuuka **Paul,** the father of the Respondent measuring $2\frac{1}{2}$ acres which he says he later forfeited to **Kibuuka**. The surveyor, **PW4** was in view of the above definitely not in a better position to ascertain what is actually the disputed kibanja so as to authoritatively be able to state as he did in his report that it is not seated on the Respondent's land. - [28] In conclusion, I find that all the Appellant's 4 grounds of appeal are devoid of any merit and they accordingly fail. The appeal is therefore dismissed with costs to the Respondent.

Dated at Hoima this $6^th$ day of **December**, 2024.

**Byaruhanga Jesse Rugyema JUDGE**

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