THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

HCT-04-CV-CA-0188-2015

(ARISING FROM CIVIL SUIT NO. 0004 OF 2009)

1. OMONDI DAMIANO
2. OPIO JOHN JANAI
3. MADNA YAZIDI
4. BYEKWASO OGUTU
5. HAJUGUJU OJAMBO ZAAKA.........................................APPELLANTS

VERSUS

HAJI MUSA MUKASA MARAGWE..........................................RESPONDENT

BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA

JUDGMENT

Appellants were defendants in Busia Civil Suit No. 004 of 2009 which was determined on 09.12.2015 in favour of the Plaintiff by the Chief Magistrate Busia – Her Worship Sarah Mponye. Appellants were dissatisfied with the judgment and filed this appeal.

On appeal, three grounds of appeal were raised namely:

1. That the learned trial Magistrate erred in law and fact in failing to visit locus in quo on the land which was in dispute.
2. That the learned trial Magistrate erred in law and fact in failing to properly evaluate the evidence on record.
3. That the learned trial Magistrate’s decision has occasioned a miscarriage of justice.

The duty of a first appellant court is to re-evaluate the evidence, reach fresh conclusions and make its own findings.  The caution however is that the court had no chance to observe and hear the witnesses.  (See case of PANDYA V. R (1957) EA 336).

From this position of the law I now reappraise the evidence and determine the grounds as herebelow:

From the lower court file the plaintiff sued defendants vide plaint dated 30th March 2009 for vacant possession, permanent injunction, general damages and costs of the suit (paragraph 3) under paragraph 4 of the plaint, the plaintiff averred that plaintiff at all materials times was owner of land situate at Namaoubi ‘B’ village, Busia Parish Dabani sub-county, Busia District.  That sometime back without any colour of right the defendants entered upon the suit land cultivated crops thereon, constructed houses and are now claiming ownership.  The plaintiff further contended that as result of the defendant’s acts he suffered loss and damage.

In response by Written Statement of Defence 1st and 2nd Defendants denied the allegation and averred that they were from time of birth residents of Namaoubi “B” village and the plaintiff has never owned the same.  Defendant claimed ownership by inheritance.

In paragraph 11 they alleged that in 1988 Kinyosi Yowana with Abdallah Makadie tried to re-demarcate the land.  In 1995 Abdallah Makide claimed ownership and sued in RCI of Namaubi and LC decided in favour of their late father Janani Were Ngweno.

In 2007, plaintiff filed a case at LC.II, against Pascal Ogolla Janai, which was referred to court, but defendant P. Ogolla Janai died before the trial was concluded, and then they were summoned in this current case.

Evidence assembled included PW.1 Musa Mukasa Maragwe who said that defendants trespassed on his land, at Namaubi village Busia District, of 3-4 acres.  He got the land in 1957 from Mzee Kinyozi- a mutaka chief by then.  He built thereon.  In 1964 Janai Ngweno from Kenya asked him for a piece of land.  He gave him and planted boundaries.

In 1995, he shifted from the place and entrusted the land to Kinyozi the mutaka chief.  Kinyozi care took the land until when in 2007 plaintiff passed there he found there houses.  One of the houses belonged to Ojambo.  Kinyozi informed him that maybe his neighbour had sold it to him but he didn’t know.  He then went to the LCs did not stop Ojambo from building.  He confirmed that the defendant bought the land in 2007.

PW.2 Ibrahim Wasike stated that Maragwe was owner of the land and he got it from Yowan Najuwa as a donation.  Maragwe brought Janai but witness knew little about Janai.

PW.3 Juma Salim Kalaja was LC.I vice chairman in 1995 of Namaubi.  Abdalla Makadie complained that the land was his.  There was Kinyozi and Ogola who were the neighbours to the land Makadie was claiming but at the time he didn’t know the owner.  Kinyozi was the one keeping it.  Kinyozi when contacted said land was for Maragwe.

DW.1 Byekwaso Oguti (D.4) said he purchased the plot of land from Opio (2nd Defendant) at shs. 500,000/= and paid cash on 7th May 2005.

Opio sold in presence of Ogoola and other LCs.  The agreement was tendered in for identification.

DW.2 Hajuguju Zaka (D.5), said bought land from George Wesonga son of Janai at 1,020,000/=.  This was in presence of Wandera, Kinyozi Siraji.  A sale agreement was made which was tendered for identification.

DW.3 Kagoya Madina, said D2 Opio sold her land on 20.5.2007 for shs. 910,000/=.  A sale agreement was made witnessed by Egesa John a parish chief, and written by chairman LC.I. The agreement was tendered and marked for identification.  She built there and cultivates there.

DW.4 Damiano Omondi said Madina Yazidi (D.3) bought land next to his.  Opio John is his young brother.  Zaaka (D.5) is his neighbour who bought land from George Ngweno- his step brother.  His father Janai Ngweno died in 2003.  Witness was born in Kenya but came to Uganda in 1957 with his father.  He didn’t know how his father acquired the land.  Since 1957 he has been staying in Namaubi village.  They are the ones in occupation.  His father and himself all have permanent houses there.  His father gave out the land upon his death, his father had distributed the land in 3 pieces which he gave out to his children, who later also sold the same.

The witness further stated that the land was surveyed in 1996.  He referred to documents marked as ID4.

DW.5 Opio Janai (D.1) said land belonged to their late father Janai Victor Ngweno.  His father bore him there in 1958.  He lived and grew up on that land and it is him who gave DW.5 and his brother the pieces of  land.  Their father died in 2003 and since his life time never mentioned the plaintiff.  Plaintiff has never lived on the land yet for him he has built thereon a permanent house.  His mother wife to his father died in 1998 and was buried on the suit land.  His father applied to survey the land in 1996.  He confirmed all sale transactions made to D.3, D.4 and while selling land to them.

DW.6 Wanyama Girigori who said had been chairman RC.I Namaba from 1990-2001 confirmed that plaintiff’s land was on different land from that which Janai Victor Ngweno wanted to survey.  The land committee was present.

DW.7 Lubega Godfrey Mukasa was District surveyor since November 2003 said papers showed that in 1996 Janai attempted to survey the land having been given a go ahead by the Uganda Land Commission.  The process was however not completed so the final survey was not done.

With that evidence the learned trial Magistrate made a judgment decreeing the land to the plaintiff; hence this appeal by the defendants.  I will consider the grounds of appeal as argued by the appellants.

1. Ground I : Failure to visit locus

The record indicates that the learned trial Magistrate did not visit locus.

Appellants argue that this omission was an error in law and fact.

Appellant counsel relying on a wealth of decided cases pointed out that such a failure to visit the locus is fatal to the trial of the case.

Counsel referred particularly to MR. ATIM CHARLES & ANOR. VERSUS MRS. ODANGA HADDU HCCS NO.116 OF 2012, and the REGISTERED TRUSTEES OF THE ARCHDIOCESE OF TORORO VERSUS WESONGA REUBEN MALABA & FIVE OTHERS HCCS NO. 096 OF 2009 to emphasise the above point.

Defence counsel chose to differ.  Relying on another High Court decision of MUGERWA MULIISA PAUL & ANOTHER VERSUS TWAHA KIGANDA HCCA 9/2012, where Hon. J. Mugenyi found that visiting the locus is only in deserving cases, and was not necessarily fatal in every case.

The law as to the need to visit locus in my view is agreed on the fact that this practice is a requirement which one should try as much as possible to comply with.  The law has not yet made it mandatory, but by virtue of Practice Direction no.1 of 2007, the Chief Justice, Hon. J. Odoki (as he then was), guided courts on the need to visit locus before making a decision in land matters, for every deserving case.  So what is a deserving case?  It is that case whereby evidence in court alone cannot clarify on the matters in controversy; especially where parties attempt to refer to or describe boundaries, land marks, physical features, neighbours, cultural cites etc.

These descriptions cannot when referred to be assumed to exist on the ground by the trial court, unless it moves to the locus to ascertain the facts as alluded to.  These observations were the concern of the Mugerwa Muliisa Paul and Another holding.  Similarly they were the considerations in the earlier cases of DEO MATSANGA V. UGANDA 1998 KALR which held inter alia that;

“ the purpose of visiting the locus in quo is to cross check on the evidence adduced during the trial.”  The same principle was referred to and discussed in the cases of DAVID ACAR AND ORS VERSUS ALFRED ACAR (1987) HCB 60, YASERI WAIBI V. EDISA BYANDALA (1982) HCB 28, OKOTH OWOR V. SUNDAY MUVAWALA CA 0028/2013, and JAMES NSIBAMBI V. LOVISA NANKYA 1980 HCB.

The gist of all the holdings in those cases is that once court considers evidence in a land matter of such a nature involving descriptive references to features on and around the said land; court ought to visit locus.  When court does not visit the locus in a deserving case, that evidence is lacking and this renders it a fatal omission going to the root or foundation of the trial.  Such a trial is rendered irregular and findings based on it made in error of fact and law.  I therefore do not agree with Respondent’s counsel that the matters in court could be determined without a visit to the locus.  Clearly evidence on record referred to acreage, which needed checking out at locus, neighbours, houses, graves, crops, permanent and semi-permanent structures, attempts to survey by the defendants- facts all which the court grossed over and never checked out by a visit to the locus.  Defence argues that these features could be ascertained from the testimonies of the witness and that the learned trial Magistrate was able to do so.  I disagree and will show that from evidence on record the parties described their rights on the land from different positions.

DW.1 clearly said that he did not know the land the plaintiff was disputing for with him; and did not know plaintiff.  How then could court decide for plaintiff when he has not shown the court the land he was claiming yet he was not the one in actual possession?

Another example is the evidence of DW.4 Damiano Omondi who claimed to have been on the land since 1957, and said that for all that period, his father never mentioned the plaintiff.  He names neighbours.  This evidence is at variance with PW.1 who also claims he got the land in 1957 as a donation from Mzee Kinyozi but mentioned no known neighbours to the land by 1957.

All these facts needed to be checked out at the locus.  The same thing with DW.5 who claimed their mother died on the suit land in January 1998 and was buried thereon.  He said he knew all his father’s boundary marks on this land.  With that type of evidence, there is no way the learned trial Magistrate could conclusively determine the veracity of the evidence without visiting the locus.

This is therefore one of those deserving cases which needed a visit to the locus, in order to determine the rights of the parties thereon.

The learned trial Magistrate did not do so.  This was a fatal omission, an error in fact and law.  This ground succeeds; and as pointed out by counsel for appellants, this appeal would succeed on this ground alone.

However for academic purposes I will determine the other grounds as well.

B. Evaluation of Evidence, Law of Limitation, and Bonafide Purchasers for value without Notice

I have carefully gone through the evidence.  I have also examined the submissions.

I have reached the conclusion that there was a failure by the learned trial Magistrate to properly evaluate the evidence on record.  The learned Trial Magistrate made a finding for the plaintiff in her judgment without visiting locus, and did not have any basis or evidence on which she convincingly found conclusively for the plaintiff.  The reason given in the judgment is “Plaintiff’s evidence is heavier.  This is because he told court how he got the land that is from the Mutaka Chief in the 1950s and PW.2 corroborated this.  The defendants on the other hand were just told by their father Ngweno that the land was his.  They did not know how Ngweno got this land”

The above finding with due respect is contrary to the evidence on record.  The evidence of PW.1 is not conclusive.  He said he came to the land in 1957 and was given a gift by a Mutaka (who did not testify).  PW.2 was not sure of when this donation occurred.  He said in the 60s, yet plaintiff said it was 1957.  This evidence does not corroborate as the learned trial Magistrate stated.  Moreover DW.4 and DW.5 said their father brought them on the land in 1957 and they grew up there, lived there, inherited, built there and were in occupation.  The other defendants by evidence showed they had bought the land, paid for it and had agreements. Was that evidence destroyed by the plaintiff on the balance of probability?  I do not find so.

There is the issue of limitation.  I do not wish to dwell on this matter but the law clearly puts a limit to when land matters should be brought to court.  The evidence on record especially of DW.4 and DW.5 shows that defendants’ rights on that land was being traced to as far back as 1957.  They were burying their relatives on the land as far back as 1998.  Meanwhile a one Yowana Kinyosi who plaintiff alleged was his caretaker since 1987 was looking on as these people acted in alleged trespass!  PW.1 (plaintiff) even claims that in 2007 when he went to check on the land and found defendants in occupation he inquired from Kinyosi how they had built there and he told him that “may be my neighbour sold but he didn’t know,” how could a caretaker merely watch and see neighbours sell land entrusted to him to the extent of feigning ignorance of what transpired?  Therefore if the trespass happened, he does not know when it began- the defence counsel attempts to say it was discovered in 2007.  This is untrue because the land was entrusted according to plaintiff in 1989, yet by 1999, the same plaintiff is testifying that he had disputes, which led to them shifting to Bukholi in 1987 (sic!).  There is evidence that defendants 1 and 2 were claiming this land by 1987 when Plaintiff left for Kenya.  A burial by D.1 and D.2 of their mother allegedly happened in 1998.  The plaintiff’s representative had been watching this alleged trespass happen since 1987.  This is over 22 years.  Clearly this suit was barred by Limitation of time.  I agree with counsel for appellants’ arguments and cases cited of NAMBALU V. EFULAIMU KAMIRA (1975) HCB 221, WYCLIFF NTENDE V. SULAIMINI KITIMBO HCCA 115/1975 in that possession presupposes ownership and one challenging possession must prove better title.

Also SAMSON KAWERE V. ASADI GILEKERE AND OTHERS HCCA 25/1995 and JOHN OITAMONG V. MOHAMMED OLINGA (1985) HCB 86.  These cases are to the effect that:

“Where there is unreasonable delay in asserting or endorsing equitable rights where a person has been in undisturbed possession for 34 years the owner of such land is stopped from claiming possession of this land.”

Furthermore according to the case of NAMBALU V. EFULAIMU KAMIRA (1975) HCB 221-it was held that;

“the Limitation Act applied to actions instituted in Magistrates Courts for the recovery of land including land held under customary tenure, and that it was trite law that Limitation is statutory and simply extinguishes a former owner’s right to recover possession of land leaving some other person with title based on adverse possession....”

These cases are on all fours with this case and in that the defendants were in adverse possession, and plaintiff was caught up by the Law of Limitation.

Finally I agree with appellants’ counsel that the learned trial Magistrate, did not address her mind to the legal doctrine of “Bonafide purchaser for value with notice.....” regarding the rights of Appellants 3, 4 and 5 who purchased their land from Appellant No.2, and others.  This was a fatal omission as there is no evidence of fraud or anything to impeach their title with.

Respondent’s counsel stated that there is no evidence that defendants carried out a search to ascertain good title.  Contrary to Counsel’s submission this evidence is there on record as each of the appellants in evidence led evidence to show that their agreements were witnessed by the neighbours, some by LC.I Chairman and another by the chiefs.  There was evidence of due diligence having been done.  There is ample Evidence on record to support a finding that the appellants 3, 4 and 5 were Bonafide Purchasers for value on the basis of their evidence in chief- even if their agreements were not admitted as exhibits, they were identified and referred to, which corroborated their oral evidence and that of other witnesses.

I for all reasons above find that this appeal succeeds on all grounds.

I do therefore set aside the judgment and orders of the learned trial Magistrate, and replace it with a finding that the plaintiff in the lower court failed to prove the case on the balance of probabilities. Judgment is therefore entered for the Defendants/Appellants.

Costs of the appeal and below granhted to the appellants.  I so order.

Henry I. Kawesa

JUDGE

08.02.2017