THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MASINDI

CIVIL APPEAL NO.  16 OF 2013

(Arising from  Civil |suit No. 57 of 2006)

KIWANUKA ELIAS:::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

YOWANA KOMUBITOKE & 4 ORS:::::::::::::::::::::::::::RESPONDENT

BEFORE: HON. JUSTICE WILSON MASALU MUSENE

JUDGMENT

The Appellant, Kiwanuka Elias, being dissatisfied with the Judgment and orders of the Magistrate Grade One, Hoima, appealed to this court.

The Respondents were  Yowana Komubitoke  & 4 others.

Grounds of appeal:

1. The Learned Trial Magistrate gradeone erred in law and fact when he failed to properly evaluate the evidence on record thus leading him to reach a wrong decision.
2. The learned  trial magistrate Grade one erred in law and fact when he relied on the evidence of DW6  when it was clear on record that the evidence of DW6 was not tested through cross examination owing to the need for handwriting expert’s opinion.
3. The learned trial Magistrate erred in law when he failed to conduct a visit to the locus in quo in accordance with the law thus leading him to reach a wrong decision that prejudiced the Appellant.

The brief facts are  that  the appellant sued the Respondents for trespass on his land situate  at ngogole 1, Kyangwali parish, kyangwali sub County, Buhaguzi County, Hoima District which he claimed to have bought from D2’s mother  whereas the 1sty and  2^nd Defendants claimed to be the owners of the suit land having occupied the same prior to the appellant’s purchase of his portion.

In  the lower court, the appellant produced three witnesses, herself  as PWI, Byabashaija Nyansio (PW2) and Rostiko Kajubi (PW3)  to prove  his case.  The Respondent’s on the other hand produced  8 witnesses namely, Yowana Komubitoke, the 1^st Defendant testified as DW1, Kabadaki Beatrice as DW2, John Katusiime testified as DW3, Ahumuza Robert DW4, Francis Batoro testified as DW5 , Abigaba Javenali testified as DW6 , Margaret Nseka as DW7 and Byaruhanga Deo testified as DW8.

Judgment in the above mentioned suit was given inf avour of the Respondents when the trial Magistrate declared that the suit land belongs to the 1^st and 2^nd  Defendants, that there was no trespass on the suit land, found that the appellant was not entitled to the remedies sought and the suit was dismissed with costs.

Grounds 1 and 2  of appeal were argued together as they touch on  evaluation of evidence.

Counsel for appellant submitted that the trial Magistrate in his judgment criticized heavily the Appellant’s evidence relating to the sale agreement. In the 1^st instance, the trial magistrate criticized EPI on the ground that it did not have address and on the ground that there was no report produced by the Appellant to the effect that the original agreement was burnt and the appellant reported the destruction of the original agreement to LCS and police.  The trial Magistrate also wondered how the appellant could have saved Exp 1 a photo copy and  lost the original in a fire.

He added that the appellant is a lay person who after the loss of the agreement could not know that there was need to report to the Police  the destruction of the original agreement by fire. We also  wish this court to note that it is very possible  for one to lose the original of his  document  and retain a photocopy  which he had kept at  a different place from the original.  It is also our submission hat lack of the address on EXP 1 was not fatal to the exhibit taking into  consideration the fact that the agreement was written in a rural setting  where people write  what they  think was important.

It should be noted that the Appellant testified to the effect that the  2^nd Respondent did not sign the agreement because her husband had signed the agreement.  The appellant’s testimony was corroborated by evidence of PW2 who was present during  the buying of the suit land by the appellant.  All this evidence was thrown away by the trial Magistrate.

The other contention was that  after a short cross examination, counsel for the appellant requested court to refer the matter to a handwriting expert because the two agreements that was presented by  the Appellant  and that presented by the 2^nd Respondent were alleged to have been executed  by the same person DW6  although DW6 denied executing  EXPI and admitted executing  IDDI.  It was after the handwriting expert’s opinion that cross examination of DW6 would continue.  At that point cross examination of DW6 was halted pending the handwriting  expert’s opinion when it would resume.

Nevertheless the opinion of the handwriting expert was not sought by court but the trial Magistrate went ahead to rely on the evidence of DW6  without affording  counsel for the  appellant a chance to exhaustively cross examine DW6  as had been planned.  This means the evidence of DW6  was never tested by way of cross examination and re-examination.

Counsel for Appellant also emphasized contradictions in the evidence of the Respondents.

He gave DW6  whose evidence  was relied  on heavily by the trial Magistrate told court  that the agreement (IDDI) was made  at the home of the appellant see page 25 line 2. Howeer, during the short cross examination before  counsel for the appellant applied to halt cross examination until after the handwriting expert’s opinion at page 26 last paragraph 1^st line  DW6  told court  the agreement  was made on the land that was sold to the appellant.

Apart from the above contradictions, the Respondents witnesses contradicted themselves on the boundaries of the suit land.  DW6 talked about a swamp on the south, east –Tomasi.  Kabonesa and a Mukoko tree and North the  1^st Respondent (Komubitoke ) and  at the same time a road to Tontema.  DW7 gave different boundaries from DW6. DW1  a different version of boundaries  from DW2.  Whereas the evidence of DW3 to DW5 was useless as they knew nothing about the suit land and whatever they told Court had been told to them but not what they knew.

He concluded that the Appellant’s case was supported by the 2^nd Respondent and her witnesses. This evidence was supported by the  2^nd Respondent and her witnesses.  According to the appellant, after  Kabusomba had left the suit land after harvesting her crops which were on the suit land by the time the appellant purchased the same, the Appellant started using it for grazing  and does not know that DW7  used the land.  The evidence of DW2  supported the Appellant’s evidence that since Kabusomba left the Appellant was using the suit land until the Respondents trespassed.  See page 4  line 20 to 23  and page 11,  2^nd paragraph 1^st line of the record of proceedings. 

Counsel for the Respondent  submitted that around early 1991  bought land  located at Ngogole 1, Kyangwali Parish, Kyangwali sub county, Buhaguzi County, Hoima District from a one Kachweka Yeneki (the mother of the  2^nd Respondent  (DW2) for valuable  consideration  of UGX 25,000/= ( twenty five thousand Uganda shillings only) by a written agreement  drawn by abigaba  Jovenali (PW6) in the presence of the appellant (PW1) , 2^nd  respondent  (DW2), Phillipo Byabasaija and komubitoke Yowana (DW1) .  he added  that what is in dispute is whether  the Appellant bought land including the suit portion  which at the time of purchase was being occupied by a one Kabusomba.  The suit  portion’s boundaries are the appellant  Elias  Kiwanuka in the East, Yowana Komubitoke in the west, the path to  tontema and yoronimu Tibinulire in the North and in the south  the main road from Hoima to Kyangwali.

He stressed that its  important to note the defendants’ fact that Kachweka Yeneki’s neighbour  in the west was Yowana  Komubitoke (the  1^st Respondent) and the two shared a common boundary which the appellant/Plaintiff according to the plaintiff crosses into the 1^st Respondent’s land  by  40*20 yards.  The 3^rd-5^th Respondents were sued as agents or children of the  2^nd Respondent on the suit property and in their defences stated that they derive their interest or authority on the suit land from the  2^nd Respondent.

Counsel for the Respondent further submitted that Appellant’s agreement dated 17.2.1991 (Exhibit PI) was rejected by DW6, Abigaba Jovenani who was alleged to have written it.  He added that since even PW2,  Byabasaija Nyansio who was stated by appellant as a witness to the said agreement also rejected   having signed the same, and so the ExP I. relied on by appellant was a forgery.  Counsel  also maintained that since PW3, Rostiko Kajubi was not a witness to the agreement executed  between appellant and Kachweka Yeneki, then he could not testify as to which portion the Appellant bought.

He therefore argued that the trial Magistrate correctly disbelieved Appellant’s evidence.  Counsel for Respondent concluded that  the learned trial Magistrate  therefore  rightly held that the suit land did not belong to the appellant, he having failed to adduce evidence to discharge his burden of proving  on a balance  of probabilities that the suit land belonged to him because of the following:-

1. DW6 who authored the agreement between the appellant  and the mother of the  2^nd Defendant denied having authored Exh PI  and acknowledged  to have drawn DID I dated 17/3/1991 as the genuine  agreement of sale and that the same excluded the suit land.
2. DW6 testified that he was the one who  cleared the bush  along the boundary line of the land that the appellant bought and that the same excluded the suit land which at the time was occupied by a one Kabusomba.
3. The Appellant did not call any eye witness to the transaction of 1991  to testify on the boundaries that he bought, PW2  who he called even denied ever signing  Exh PI.
4. The 1^st Defendant (DW1)  testified and his evidence was not rebutted  in any way that  he has been a neighbour to the suit land since 1970 when he acquired his portion from a one Kaahwa Maimuna in 1970 when she sifted  to Kaseta.  That he was present when Kacweka Yeneki sold part of the gland to the appellant in 1991 leaving the portion neighbouring his land unsold.
5. The Appellant   had no single development on the suit land, it’s rather  the  2^nd-5^th Respondents who possess gardens on the suit property.

Further , Kabusomba and nseka  have been utilizing the suit property on the authority of Yeneki Kachweka and the  2^nd Defendant respectively.

I have  considered the submissions on both sides and I am inclined to agree with the finding and holding  of  the  trial Magistrate as regards to who owns the  suit land.  The sale/purchase agreement by the Plaintiff/appellant was very vital in this case. Whereas the Plaintiff/Appellant testified that the original agreement was burnt in a tobacco barn, he did not elaborate on how he managed to save the photocopy. 

Secondly, and as correctly held by the trial Magistrate, the sale agreement exhibit PI bears no address of the village and parish where the land is situated.  And to make matters worse for appellant, who was said to have written the sale/purchase agreement dated 7.2.1991 disowned the same (PEXH1) as a forgery.  DW6 stated on page 26 of the proceedings as follows:

“ This agreement dated 7.2.1991, I know nothing about it.  It has no address.  I am seeing my names in it but I don’t know how my names are appearing  here.  The Plaintiff was wrong to tell court that I witnessed it.  In this  agreement the parties are Kachweka Yeneki the seller and Kiwanuka Elias the buyer.  I never witnessed it at all.”

So when a person who is said to have witnessed the agreement denies the same as against the Plaintiff/Appellant, then I find and hold that the appellant did not prove his case on the balance of probabilities as required by the law.

In the premises, I agree with the submissions of counsel for the appellant that the evidence of DW6 discredits the Plaintiff/Appellant’s version.  It supports the  2^nd  Defendant/Respondent’s version that Appellant bought  part of her mother’s land and not the whole of it as alleged.  So ground  No. 1  and 2 of Appeal are hereby rejected.

Ground No.3

The learned trial Magistrate erred in law when he failed to conduct a visit to the locus in quo in accordance with the law thus leading him to reach a wrong decision that prejudiced the Appellant.

Whereas Counsel for the Appellant insisted that the trial Magistrate failed to conduct the visit to locus in quo in accordance with the law, and thereby prejudiced the Appellant, counsel for the Respondent maintained that locus in quo was visited.  I have seen the file and indeed the records indicate that locus in quo was visited.   The law and practice on locus in quo and what happens during locus in quo is well settled.  Visiting locus in quo is provided for by practice direction No. 1 of 2007.  There are many decided cases on locus in quo what should be  noted is that locus  in quo is not mandatory in all cases.  In the present case and from evidence on record, it was clear that DW1  shared a boundary with the suit land, whereby it  emerged that it was not sold to Appellant but was owned by D2 (2^nd Respondent .  So it was not a boundary dispute but ownership of a particular parcel of land which as already held was never sold to Appellant as claimed.

Secondly, it is clear that the trial Magistrate based his  judgment on the testimonies of the witnesses in court and so any  slight reference to the  proceedings at the locus in quo  were not fatal.

The third ground of appeal is also hereby disallowed.

In conclusion therefore having rejected all grounds of appeal, I proceed to dismiss the whole appeal and confirm the judgment and orders of the lower Court.  I also award costs to the Respondents.

……………………..

W. Masalu Musene

Judge

08/08/2017.