THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA  HOLDEN AT  MASINDI

CIVIL APPEAL NO.  HIGH COURT CIVIL APPEAL NO. 002 OF 2010

(Arising  from civil suit no. 0044 of 2005 Hoima Court)

1. NYAKAHARA MARGRET
2. BALIHIKYA YOWAKIMU
3. BIKORWENDA LAWRENCE::::::::::::::::::::::::::::::APPELLANTS
4.  

TUHUMWURE JOY::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE:  HON. JUSTICE  WILSON MASALU MUSENE

JUDGMENT

The Appellants, Nyakahara Margaret, Balihikya Yowakimu and Bikorwenda Lawrence, being dissatisfied  with  the judgment and orders of Senior Principal Magistrate Grade one  Hoima appealed to this court.

The Respondent is Tuhumwire Joy.

The following were grounds of appeal.

1. That thelearned trial Magistrate erred in law and inf act when he failed to properly evaluate the evidence on record and thereby arrived at a wrongconclusion that the disputed land in Civil suit no. MSD-00-CV-CS-0044 of 2005 belongs to the Respondent
2. That the Trial magistrate erredin law and infact when he failed to address himself as to the correct procedure to be followed at locusin quo or to conduct the locus in quo at all.
3. The learned trial Chief magistrate erred in law andinfact when he ordered and/or creatednew boundaries on the disputed land against the weight of evidence led to the well known boundary separatingthe land of the late Kibego Bonifance and Samson Kakongoro/Kalaya.
4. The Trial Magistrate erred in law and fact when he declared the suitland as the property of the Respondent
5. The trial Magistrate erred in law and infact when he declared the appellants as trespassers on their ancestral customaryland.

Brief  background  facts:-

The 1^st appellant is said to own land measuring  approximately  40 ha (100 acres) at Katikara Kasokero villages, Kisabagwa Kyabigambire Hoima District which she inherited from her father the late bonifance Kibego  who  inherited the same from his father the late balihandago Yeremiya who acquired it as  vacant land.  When mr. balihandago died he bequeathed the land to the 1^st appellant’s father the late Bonifance Kibego and her uncle kaahwa katenga who died in 1996  and 1992  respectively, leaving the disputed land in the 1^st appellant’s hands.  The 1^st Appellant was born on the suit land in 1960  and has continued utilizing the suit land to date.  The first appellant’s father  Mr. Bonifance  Kibego  applied for a lease on the land in 1975 , had it surveyed  and  the land was offered to him in 1985 .  The land is bordered by a tea garden in the south, a Muhoohi tree in the west, pine trees of Balihikya Yowakimu (the  2^nd Appellant herein ) in the north, and the road to Nyamirima-Kyabigambire in the south completing the southern circle .  The Respondent claims  approximately  40 acres of the 1^st Appellant’s land and approximately  8 acres of land owned separately by the  2^nd and  3^rd appellant’s who also inherited the land from their forefathers.  The Respondent claims to have bought the disputed land in 1977 from Mr. Kasaija Christopher alleged to be the son of Kalaya a partner to the late Samson Kakongoro who was a neighbour to the appellant’s parents, had known land in the area with clear boundaries which she could have sold and is not claimed by the appellants.

The Respondent instituted a civil suit  vide land suit No. 044 of 2005  in the Hoima district land Tribunal at Hoima  against the appellants which was concluded on 25/2/2010 in fvour of the Respondent.  The Respondent produced four witnesses to prove her case while the appellants produced  six witnesses.  The  Magistrates Court also visited  locus in quo.  Judgment was delivered on the 25^th day of February, 210 infavour of the Respondent.

Ground 1,4, and 5 .

The Advocates on both sides urged the above grounds together.  Counsel for the appellant submitted that whereas kasaija Christopher on  21/8/1977 sold gardens and an incomplete house to the Respondent as per sale Agreement Ex PI, that the Respondent  alleged  appellants had encroached even on land which was under Farlow (uncultivated).

He added that there were contradictions with regard to the boundaries of land sold to Respondent as stated by PWI  and PW4.  The other factor was that during the sale or purchase by the Respondent, all neighbours were not present.

Another point of contention by the appellant’s counsel was that the plaintiff and all her  witnesses including the expert  village and parish heads whose pre  occupation was overseeing land transactions in villages could not testify about the size of land  owned by the plaintiff, the Respondents or event he size of portions alleged to have been trespassed upon by the Appellants.  Their claim before court was not defined and all they could state  was that the land had not been surveyed and its size was not known.  They did  not even assign reason as to why the land subject of sale was not measured in  1977.

He added that the evidence of the boundary with the  1^st appellant was also contradictory  PWI stated that the garden tea belonged to Kibego but that her boundary  curved  inside following the line of the garden tea leaving the garden tea outside  up to the trench on Nyakahara’s side.  There is no way such a crooked boundary line could have existed amongst  neighbours.  Besides, contradictory evidence was led that Kalayas land stopped at the garden tea!

It was further submitted that if the trial Magistrate had properly evaluated the evidence, he would not have concluded that  if one Samson did not sue Respondent, then Kasaija who acquired  from Samson passed good title to Respondent.

The reason  he , Counsel  gave for the above wrongful conclusion was because PW4, Christopher Kasaija testified that he  bought  the  land from Kalaya.

Counsel also wondered how Kasaija could claim to have bought from Kalaya when evidence from appellants was that he came to look after Kalaya who was his aunt and  had no land in the area.  Counsel for the appellants added that from the evidence on record, Christopher Kasaija followed her aunty kalayo on the suit land as shown in the evidence of DW1, DW2 AND DW3 .  He deliberatel omitted  this fact from his testimony.  The impression he gave in his evidence was that he bought  land by an agreement from a “random” woman named  Kalaya  which agreement he lost.  He feigned  ignorance that kalaya  was a wife of Samson kakongoro, the original owner of the suit land a fact which could not have been unknown  by Christopher since he was raised by the said woman Kalaya.  It is shown from the evidence of DWI  and DW2  above that the said land was for Samson Kakongoro and all that his  three wives including  Kalaya had  had thereon gardens and portions of land they were utilizing.   If Kasaija’s stay was not challenged on the  disputed land, it is because he grew up on the disputed land as a nephew to Kalaya  and later stayed on the land under the pretext of looking after  his aunties garden and property thereon.  The Respondent  also came under the pretext that she had come to take care of Kasaija’s property and that is why her stay on the land in the dispute was  not challenged.  The learned trial magistrate therefore erred in law and fact in holding that Christopher  acquired  good title  to the disputed land when he took over possession and occupation from Kalaya  and therefore could pass  on to the claimant when he failed to prove that  he bought or inherited the same from Kalaya.  Mere possession and occupation without proof of purchase or inheritance of land per see does not confer on a person good title to the land.

On that point, counsel for Appellant concluded that in case Kasaija  Christopher acquired  a good title, then it was in respect of the  undisputed portion that was occupied by Kalaya which the appellants don’t claim.

Counsel for the Appellants concluded that since Kasaijja had failed to prove how he acquired the land in dispute, then it was wrong  for the trial Magistrate to have held that he  passed good title to Respondent.

In reply on the above three grounds, counsel for the Respondent first raised a preliminary objection that the grounds contained in the memorandum of appeal violate O. 43 r. 1 (2) of the  Civil procedure rules as they were argumentative and narrative,  and that they be struck off with costs.

In the alternative he urged that the trial Magistrate properly evaluated the evidence and  decided in favour of Respondent. Counsel for Respondent otherwise conceded that  the sale agreement tendered in Court was in respect of  a garden but that PW4  sold his entire kibanja to the Respondent.

He added that Kasaijja even had a kraal and that it was supported by PW3.

As regards contradictions in the boundaries we do not  see any contradictions in the evidence fo PWI  and PW4  related to boundaries.  Whereas, PWI  testified that there is a road to Nyamirima as a boundary and PW4  mentioned a road  to Kyabigambire, the two meant one and same thing as Nyamirima is in Kyabugambire sub County and the road to Kyabigambire passes via Nyamirima.  That is why even counsel for the appellants in his submissions at page 10 of the  un numbered written submissions  2^nd paragraph line  5  thereof  stated thus”…..line  with garden tea down to Nyamirima  Kyabagambire road…… “ meaning  that counsel for the  appellants also recognized  that the road to Nyamirima on boundaries between PWI and PW4  in reference to the road.  As  for the rest of the boundaries, PWI  used the names of neighbours whereas PW4  used boundary marks to describe the  boundaries thus showing no contradictions. 

On presence of PW4 during demarcations,  Counsel for Respondent replied that PW4  in his evidence during cross examination informed, court that he called Kairu when demarcating  the boundaries, PW4 did not say that  Kairu was present during  the time of demarcating  boundaries but just said I called Kairu.  This could mean that  Kairu was called by PW4 to be present but did not attend the demarcation of boundaries that could be the reason why other witnesses did not mention him because they might have not seen him.

Alternatively, it is also not true that other witnesses for the Respondent denied the presence of neighbours .  it is on record that PW1  in her evidence told court the people who were present when  she was buying and went ahead to state that she had forgotten the other person who was present at the time she was buying.  This could mean that the person she forgot  could have been Kairu. 

On the size of the land, counsel for Respondent submitted that  it would be demanding   or  too much for someone to expect a person who was buying Kibanja in 1977 to first survey it to ascertain its acreage.  It is even today the same situation because  apart from people with titles,  very few people know the size of their  bibanja.  Secondly the Respondent and her witnesses are lay people who could not even think about surveying the  suit  Kibanja  in 1977.  It is even possible that some of them do not know how big an acre is thus making it difficult  to know the size of the  suit Kibanja in terms of acreage.

He denied any major  contradictions in the Respondent’s  case, adding that the evidence of DW1  regarding what her parents told her about Kasaijja and looking after the property of kalaya was hearsay. 

Counsel  added  that PW4,  Kasaijja bought the suit land from Kalaya  but  his agreement got lost.  He justified the same with presence of Mukuru Mugongo and  Mutongore chief  of the area.

He therefore supported the  finding of the trial Magistrate that Kasaijja had  acquired good title which he could pass to the Respondent.  Counsel for Respondent also submitted that there was nor requirement of  neighbours  being present  when one is selling his/her land.  And that sch discrepancy is not fatal to deprive the Respondent of her property.

I have considered the submissions from both sides as summarized and also studied the record of proceedings and judgment of the lower court.

Under Section 101 (1) and (2) of the evidence Act, whoever desires any court to give judgment as to any  legal right or liability dependant on existence of facts, which he or she asserts must prove that those facts exist.

Secondly, I wish to emphasize that as a first Appellate Court, it is important to re-examine, re-appraise and re-evaluate evidence on record, and come to my own inference of facts and conclusions.

The case of  Pandya vs R. [1957] E.A 336 refers.

The second point of Law I shall consider is the burden of proof.

In the case of Miller vs Minister of  Pensions [1947 ] 2 All E.R  372.  Lord Denning J (as he then was) held: “The standard of proof required to discharge a burden in civil cases  is well settled.  It must carry a reasonable degree of probabilities but not so high as is required n a criminal case.  If the evidence is such that the tribunal can say we think it is more probable than not the burden is discharged, but if the probabilities are equal, it is not.”

First of all, as far as the preliminary objection  raised by counsel for the Respondent is  concerned, O 43 r 1 (2) of the civil procedure rules provides:-

“The memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds shall be numbered consecutively.”

In National  Insurance Corporation vs Pelican Services, Civil Appeal No. 15 of 2003, Twinomujuni J.A , (RIP) citing the supreme court decision in Sietco vs Noble Builders (U) Ltd, Civil appeal No. 31 of 1995 stated as follows:-

“It does not specify the points which are alleged to have been wrongly decided.  In order to comply with  this rule……it is not enough to state that the trial Judge  was wrong to make a certain statement.  A ground of appeal must challenge a holding, a ratio decidendi and must  specify points which were wrongly decided, failure to comply with the rule renders the ground of Appeal incompetent and liable to be struck off”

I have considered the five grounds of appeal which challenge the  Judgment that arose from improper evaluation of evidence alleged wrong procedure at locus in quo, the creation of new boundaries and the declaration that appellants are trespassers.

In my view, the appeal raises matters of fact and law which are alleged to have been wrongly decided and so there is nothing  argumentative or  narrative.

Right from their written statements of Defence in the lower Court, the Defendants/appellants denied the claim of the Plaintiff/Respondent asserting the sale agreement relied on  by the Respondent  was fraudulently made with the intention of grabbing their land.  The Respondent, Tuhumwire Joy who testified as PWI on page 3 of the proceedings stated that she bought the land in dispute from Christopher Kasaijja in 1977 in the presence of Mukuru Mugongo (Erinest  late)  Parish Chief, Ndobereire Peter, georgina Rkagebya and bangakihemu. According to  the sales agreement exhibited  in Court (exh P1) , Kasaijja Christopher sold his gardens and an incomplete house to the Respondent.  The  subject  of sale was therefore  gardens and uncompleted  house.  However, PWI  in her testimony in court included  uncultivated land whichw as not stipulated in the agreement.  That was a fundamental departure by the Respondent which should have been considered by the trial Magistrate.  Even Counsel for the Respondent in his submissions agreed that the agreement tendered in Court  was in respect of gardens.  Then he adds that there was  other evidence to prove that Kasaijja (PW4)  did not sell gardens to Respondent but his entire Kibanja.  The question is why was all that information not stated in the sale agreement?  Even PW2, Georgina Rukagoba on page 6 of the proceedings stated that Kasaijja sold a house and gardens of bananas.  That was in line with the exhibited agreement.  PW4, Christopher Kasaijja who sold the land to the Plaintiff /Respondent  testified as follows on page 8 of the record  “……I know the suit land and I am the one who sold it to the claimant in 1977.  I had a house, coffee and bananas n the suit land.”

PW4 on page  9 of the record added that when he sold, the Respondent  immediately  took possession and that he had never gone there to  ascertain whether the appellants had trespassed or not.  If the person who sold  PW4, testified that he sold a house, banana and coffee plantations, where did the additional  uncultivated land 0r portion come from? That therefore cast doubt in the Plaintiff/  respondent’s case.

When it came to describing the boundaries of the land Respondent bought from Christopher Kasaijja (PW4) , there was a difference.  PWI  (Respondent talked of  neighbouring Katenga, then Bonifance Kibego to the south, Appellants  to the west and government forest  reserve to the north.  However, PW4  Christopher Kasaijja talks of boundaries as a road to Kyabigambire, then a hill,  bananas on one side.  For instance he does not mention a government forest reserve like PWI the Respondent.  So I agree with Counsel for Appellants that the boundaries that the are contradicted and this again casts doubts in the Respondent’s case.  The other issue which further cast doubt in the Plaintiff/Respondent’s case is that none of the neighbours  were present during the alleged sale between  Kasaijja and Respondent.  Whereas counsel for Respondent talked of Kairu, but he turned to state that Kairu was called by PW4  but did not attend.  Both PW2 and PW3 also denied the presence of  Kairu.

And what  makes Respondent’s case worse is that PW4, Kasaijja who sold to Respondent also testified that when he bought the land from Kalaya,  the agreement in respect  thereof got lost.  So there  was nothing to show or prove how Kasaijja got the land and then pass on to the Respondent.  I also wondered why none of the neighbours to the disputed land  were present when Respondent bought from Kasaijja.  Whereas counsel for the Plaintiff/ Respondent submitted that there is no  legal requirement for neighbours to be present  when someone is buying or selling land, this court’s experience and understanding is to the contrary.

Neighbours must be present so as to:-

1. Confirm the boundaries of the land the seller is selling to the purchaser.
2.  
3. Neighbours have to be present so as to welcome the new neighbour.
4. The purchaser has to be confident and comfortable that she has purchased and properly invested her/his hard earned money.
5. To avoid future conflicts .

The presence of neighbours during  selling and buying of land in Uganda and elsewhere is  an established  good practice which has  acquired a force of law.  It is prudent and therefore a legal requirement in my view.  That is where the Respondent’s case collapses.  Given such contradictions with regard to the boundaries, absence of neighbours during the purchase by Respondent are major contradictions and inconsistencies  intended to mislead the Court and such evidence has to be rejected.  Case of  John Okalebo   v. Eluluma & another [1978] HCB 200 that  transactions in customary land must be done formally and any transfer of land must be done through local authorities and agreement witnessed by members of the clan to which the vendor belongs.

The other outstanding contradiction in the Respondent’s case and her witnesses related to the size of the land Respondent purchased.  None knew whether it was one acre, five acres, 10 acres or how much, even if it was an estimate. And nether could they state the size of the portions the appellants had allegedly encroached or trespassed upon.  So I agree with  the submissions of counsel for the appellants that the Respondent’s claim was not defined and the size was not known.  No one could explain why the land sold in 1977 was not measured.  Counsel for the Respondent urged that the Respondent and her witnesses were lay people who could not think  of surveying the land and that  they don’t know  how big an acre is.  With due respect, I disagree with that line of thought.  The Respondent who testified as PW1  stated that she is a teacher by profession.  By all standards, a teacher by profession is not a lay person at all.

In summary, the burden on the respondent on how Kasaijja obtained the suit land was not proved on the balance of probabilities.  This is because PW4,  Kasaijja  stated he lost the agreement by which he bought the disputed land and apart from mentioning Mukuru Mugongo, he did not mention any neighbours present to confirm sale and boundaries, how much was paid and in what installments.  The circumstances of  Kasaijja’s acquisition of the land allegedly sold  suspicious  as no one corroborated the Respondent’s version that the land she bought from Kasaijja was the one he  allegedly bought from one Kalaya.

On the other hand, the case of the appellants in the lower Court was consistent and straight forward.  On page 10 of the proceedings, DW1, Margaret Nyakahara testified as follows:-

“I was born on the suit land we have been using the suit land since I was born up to now…there was a woman called Kalaya who was on the boundary between us and Samson.  Kalaya was on the land of Samson.  When Kasaijja came, our parents asked him and he said that he had come to take care of Kalaya’s property.  Later Kasaijja left and we saw the mother of the claimant coming on the suit land.  When we asked the mother of the claimant, she told us that she had come to take care of Kasaijja’s property.  We stayed there knowing the mother of the claimant was taking care of Kasaijja’s property…..”

DW2 Balihikya Yowakimu, told court he has known the claimant  because of this case only.  He lives on the land of his grandfather Samson.  That he lives thereon with his father who is still alive.  That Samson married Kalaya a relative of Kasaijja. And that   when Kalaya was leaving  the place, she left Kasaijja thereon to look after her properties.

DW3 Bikorwenda Lauransio told court he does not know the land the claimant is claiming.  He has never trespassed on to the claimant’s land.  That the land under dispute belongs to them, their grandfather called Gatwehi-Rwakaikara who got it from the kingdom.

DW3 added that he knew Kasaijja who came thereon with DW3’s step mother in the year  DW3  does not known, but that Kasaijja shifted  from the dispute land in 1985.  That Kasaijja did not have land there.  He added that his grandfather had three wives and each wife had her gardens.

DW4 Semeo Kasiro told court the dispute  land is for Nyakahara (DW1).  That is the Plaintiff/Claimant who is a trespasser.  That Kasaijja used to stay on his aunt’s  land only, and  had no land of his own.  That nobody knows of the sale agreement between Kasaijja and the claimant.  Otherwise the claimant’s mother came as a worker for Kasaijja.  He added that by the time the claimants came on the dispute land  Samson, the owner was still alive and did not see her. 

DW6, Antonio Kaija Bahoire’s evidence corroborated that of DW1, DW2 , DW3 and DW4.  The appellants and their witnesses traced Kasaijja’s presence on the portion of land to Kalaya.  And they were consistent that when Kalaya was leaving her portion of her land on the village, it was Kasaijja who was left in charge.  Consequently, when the mother of the Respondent came,  she was taking care of Kasaijja’s property,  which property was the portion of Kalaya.  So if the trial Magistrate had properly evaluated the evidence on record, he would have found infavour of the appellants and not Respondent.  The 1^st appellant was born on the suit land in 1960, and  her father obtained a lease offer in 1985.  She  was a witness of truth and could not be mistaken as to the boundaries.  The other Appellants  were also born there.

In any case and as already found, the    Respondent, PW4  bought a house and gardens and not other pieces of land without gardens as she claimed.

In the premises,  I find and hold that grounds  1,4, and 5 of appeal are hereby allowed.

Ground 2.

That the Trial magistrate erred  in law and infact when he failed to address himself as to the correct procedure to be followed at locus  in quo or to conduct the locus in quo at all.

Counsel for the Appellant submitted that there was no record  of  whether court conducted  locus or not and if court and visited  locus, there  is no record of what transpired at the locus in quo.  It is not clear whether parties and witnesses attended locus.  There is neither record of evidence taken at locus nor any observation made thereon.  All in all there is no written  record of what transpired at locus in quo as part of the record of proceedings.

In reply , Counsel for Respondent stated that  the purpose of visiting locus is to clarify on the evidence already given in court.  Evidence at locus  cannot  be a substitute  for evidence already given in court.  If the trial magistrate sees  that the evidence given in court is enough, he or she may not visit locus.  Further more, visiting locus is not mandatory. Whereas  we agree with the submission on the procedure to be followed at  locus, it is important that evidence at locus, cannot be  considered in isolation from the existing evidence on record.  Therefore evidence was given in Court and the visit to locus was to confirm the evidence that had been given.  Failure  to follow the procedure does not in any way  prejudice the appellants because with or without visiting  locus, the trial Magistrate would have reached the same conclusion because there was other evidence of the Respondent that weighed against that of the appellants.  Therefore, the Appellate Court should not fault the trial Magistrate’s  finding and this ground must fail as a result.

Whereas  it is true  that the purpose of  locus in quo is to clarify on the evidence already given in court, and suich evidence both in court and at the locus should be considered together, there was need for witnesses in this case to clarify on the features on the land and confirm what they stated in Court.  Also a sketch map  should have been drawn.  And in cases where there were boundary  dispute as in the present  one, it was necessary  to follow the correct procedure  at the locus.  Failure  to follow the correct procedure at the locus in quo  led the trial Magistrate to reach an erroneous decision that appellants were trespassers on their ancestral land as clearly brought out by the consistent evidence of Appellants and their witnesses.

I therefore allow the  second ground of appeal.

Ground 3.

The learned trial Chief Magistrate erred in law and  infact when he ordered and/or created  new boundaries on the disputed land against the weight of evidence led to the well known boundary separating  the land of the late Kibego Bonifance and Samson Kakongoro/Kalaya

I shall  not waste much time on this ground of appeal.  The submissions on both  sides   not withstanding, I find and hold that it was completely wrong and erroneous for the trial Magistrate to have indulged in creating new boundaries on the disputed land.  It is never the duty of court to create boundaries for to do so would amount to descending in the Arena.  The trial Magistrate’s portion of the judgment on page 6  that  “From the side of DW1’s  have the boundary line shall be in accordance to the vividly  seen trench up the hill up to the forest reserve there is a Mukanaga tree. It shall follow the line of the forest reserve through the pine trees up to Musisa and Mugoma trees  on the said boundary with Kairu, then down to the road to Nyamirima, then curves inside towards, the home  of claimant,  then follows the line of the tea garden, leaving the tea garden outside up to the trench on  Nyakahara’s side.”

The trial  Magistrate  inv iew of the above passage descended in the Arena and became a witness instead of an independent Judicial officer as dictated by the law. Such judgment cannot be allowed to stand.  So I find ground 3 of  appeal in the affirmative.

Having found all the  grounds of appeal in the affirmative and in the circumstances, I do hereby allow the appeal, set aside the judgment and orders of the lower court and decree the disputed land for the appellants. 

I also award costs of this appeal to the appellants.

……………………….

W. Masalu Musene

Judge

08/08/2017