THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

HCT-04-CV- CA- 005-2015  

(ARISING FROM TORORO CIVIL SUIT NO. 76 OF 2012)

(FORMERLY BUTALEJA CIVIL SUIT NO. 43/2009,)

ALICE MUGALA               :::::::::::::::::::::::::::::                       APPELLANT

VERSUS

KESENKE JACOB MAISO ::::::::::::::::::::::::::::::::      RESPONDENT

BEFORE: HON. MR.  JUSTICE HENRY I. KAWESA

JUDGMENT

The  appellant  was dissatisfied  with the Judgment  of  His  Worship Kobusheshe Francis  Chief  Magistrate  Tororo of 22nd  December  2014.

Appellant raised 4 grounds of appeal namely:

1. That the learned trial Magistrate erred in law and fact when he failed to evaluate the evidence properly or at all.
2.  The learned trial chief Magistrate erred in law and fact when he conducted the proceedings at locus in quo perfunctorily.
3. The decision complained against has occasioned a substantial miscarriage of justice.

The  duty  of a first  appellate  court is to re-evaluate  the  evidence  and  make  its own conclusions while reminding  itself  that it  did not have  opportunity  to listen  to the  witnesses. (Uganda  Revenue  Authority  V Rwakasaya Azarious & 2 Ors  CACA 8/ 2007 (Unreported)

I have duly evaluated the evidence on record. I will address the grounds of appeal in the order they were presented.

This is so because the appellant did not file submissions, though given a schedule. Respondents filed theirs and appellants rejoined.

Given the above, this court now finds as follows:

Ground 1: Failure to evaluate evidence

I have examined the evidence before court, the pleadings as filed and the Judgment and findings of the learned trial Magistrate. I do find as follows.

Evidence:

The plaintiff led evidence through PW1, PW2, PW3 and PW4. This was alongside exhibits A, B, C, D, E, F and G. The case for the plaintiff basically was that PW1 Alice Mugala acquired the suit land from her father David Nsereke vide the written document naming her heir dated 18/ 12/ 95. She did not have problems on the land till defendant encroached on the land. She sued the defendant and won him vide court Judgment EXP “D”.

She argued the land she had won over is one and the same, and there is no other land as alleged by defendants. She stated that defendant had built a house thereon and cultivated on it. She called PW2 Kinga Siraje who testified that the land belongs to the plaintiff, who had won over the same land in Tororo court. He confirmed that defendant encroached on the land.

PW3 Lyadda John, said defendant began using the land in 2009 plaintiff complained to the LC against defendant, she won. Daudi  Nkero- father  of  plaintiff upon his death. He  was present  when during the  burial  and  last  funeral  rites the will was read out  and  plaintiff announced heir. He was part of the LC1 Committee which on orders of Grade 1 Court handed over land to the plaintiff.

They handed over the land and planted boundary marks.

The  neighbors –East  Ebuneri  Kasubi, West – Besweri Watala, North- Namatala River , South –Wilson  Rwoda  & Visa  Moses (brother  of  plaintiff).

Plaintiff used the land till 2009 when defendant forcefully constructed there a house. He received a complaint, went to the scene to check and found it true. He also confirmed the Trial Magistrate visited the locus and confirmed the suit land.

DW1- Jacob Kasenke  Maiso  testified that he inherited the  land  from  his grandfather  Asanasio  Kadyali, that   land was passed on to his father  who also  passed it to him. He said that the land was his and he had constructed a house thereon.

He said the neighbors are   North – Nalubale , East  Abuneri Kasubi and  South  Wilson  Pado, West  Besweri Watala. He called DW2- Abuneri  Kasubi  who  claimed  the land  he litigated with plaintiff is different. He claimed the land in dispute is near where he cultivates. He  however  kept  shifting  the positions saying  he had  ever  litigated on it  with plaintiff, at  same  time denying (page  18 of  proceedings).

In cross-examination he said that Tororo court did not announce plaintiff the winner (page 18 of proceedings)

DW3 Yunusu Wamoyo said the land was for Asanasio Kadyali.

He knew this land is now in dispute. He confirmed plaintiff ever litigated with her brother Ikumba and Kasubi over land adjacent to suit land and won.

DW4 Mwereri Fred, stated as that the plaintiff had a dispute in court over land with Kasubi, the land was handed over to plaintiff but is different from the current suit land.

DW5- Josipater Keera said defendant inherited the land from Asanasio Kyadyali. He named neighbors to the land as East – Pooda  Kasubi, West Besweri Bataala, and North Namatala River. In cross-examination he said he did not know the land earlier on litigated upon.

Court visited locus and at locus heard evidence afresh from all witnesses in absence of their  lawyers. At end of the trial court pronounced Judgment in favour of the defendant.

From the above evidence on record, it is clear that as per the evidential burden contained in Section 101, 102,103 of the Evidence Act the burden is upon he who asserts  a fact  to prove it.  Therefore, the  plaintiff had the burden  to prove that that the  defendant trespassed and encroached  on her  land in terms as contained in  paragraph  4(a)- (g) of her  plaint. The standard of proof is on a balance of probabilities.

On the other hand the defendant had the evidential burden to prove as per his written statement of defence under paragraph 4, that he is lawful owner of that land, and as per paragraph 7 that the suit land was different from the land referred to by the plaintiff, and as per paragraph 8 of the written statement of defence, that the suit land has never been subject of civil litigation.

Going by the evidence in court and the findings of the learned trial Magistrate, the following matters are notable:

1. The  plaintiff led ample  evidence  to propose that the land  she sued  defendant for was  the same  land  she  had  litigated over  in Tororo with her  brother. She led evidence  through PW1, PW2, PW3, PW4, Exhibits ‘A’, ‘B’, ‘C’, ‘D’ , ‘E’ ‘G’  and  ‘H’.  In my view, this  evidence  satisfied  the requirement  of  the  evidential  burden as in  Sections 101, 102  and 103 of  the Evidence Act.

However since  defendant sought to prove  the contrary as pleaded  by  him  by his  written statement of defence, then he should  have  specifically  led  evidence  to show that the lands were  different. However, I do find that  the  evidence  of DW1, DW2, DW3 and DW4 was not  conclusive  on  this  matter.  Apart from testifying so, I found the defence evidence contradictory. For example while giving evidence, the witnesses kept on changing the names of the neighbors to the land.

This was specially evidence in the testimony of D2 Abuneri  Kasubi who is brother of  plaintiff and  had been litigating  with plaintiff in the earlier  case. He first told court he was not sure if the land is the same, then said it is, then again in re-examination said it is not. He was not a reliable witness. This is further demonstrated when it transpires from the evidence on record that DW2 having participated in CS 0024/2002, now comes to court as a witness for the defendant, who had also been sued earlier on by the plaintiff for criminal trespass!!

Such evidence cannot be cogent and must be taken with caution .This is against the background of documentary evidence from plaintiff including the Judgment of court in CS 0024/2002- Exhibit P“D”: Hand over  letter to LCS- Exhibit  “F” Attendance list  Exhibit  “ G” and other documents alluded to by  plaintiff.  These include the  will Exhibit  D ‘H’ and  letters  of  Administration Exhibit ‘1’. The sum total of all that evidence is that it was heavy unless controverted by:

1. Evidence  from  defence that the land is indeed different.
2. Defendants to prove that the land is his.
3.  The court’s visit at locus to check all the above information.

From  all the available evidence I agree with counsel  for appellant  that the learned  trial Magistrate  did not  bother  to assess the evidence using above legal  tests regarding  the evidence.  In  his Judgment  he went  on a legal  frolic  of discussing  the plaint (pleadings) in isolation  of evidence adduced by the plaintiff. In the process he attempted to overrule the Judgment of the Magistrate Grade 1, a jurisdiction he did not possess! (See page 5 & 6 of Judgment).

The arguments upon  which  the learned  trial Magistrate  based to make his conclusions were neither  arguments before  him nor evidence, he merely  went  academic . In my assessment of the evidence I do not agree with the findings of the learned trial Magistrate. The evidence led by the plaintiff was good evidence and she discharged her   burden of proof. She   based her case on the earlier litigation in Tororo. She produced the Judgment.

She insisted the land is one and the same. She produced evidence of PW2, PW3 and PW4 who participated in the handing over of this land.

They all showed that defendant only came on the land in 2009.

PW3, told court as a member of the local council that he was present when plaintiff was declared the heir.

The question which arises is that if plaintiff won the case in court, (Tororo) and  she  had been  handed over the land, then why could she  bother  still to sue  defendant?

It was the evidence of D2 that plaintiff did not win the case and that he is the owner of the land and still utilizes it! DW2 had no copy of the said Judgment.

Defendant and is witnesses were not clear on which land it was.  This is clear from DW2 and all the other witnesses like  DW4 who  stated  on page 24 “ I recall I was present   when Chairperson  LC1 Kanti  handed over  the land to the plaintiff in the case between  plaintiff and Kasubi .. the land is not the same as the suit land in this case, the suit land shares a common boundary – the two pieces are different ..”

And  DW5, Josipater Keera who  stated  in cross-examination  at locus ( page  35) “ I do  not know the attendance  for handing over  the land to you, may be you just put me there… I have  never put my  thumb print on  that document  even if the  computer  was to say so, I  would  assume you put it  there  while  I was sleeping …” ( page 35).

On the other hand it comes out clearly from the plaintiff that the suit land is hers.  This is contained in  PW2’s  evidence ( page 5) as a witness to the handover  ceremony  of land  to plaintiff, and PW3 Lyadda John Male (Pages 9-13), who he was the chairman  LC1 and  conducted the handover  of  the land to plaintiff following  a court order , and  in presence  of the  whole village , where after boundary  marks  were  erected- an attendance  list  was drawn and  he signed on it, and  it is  the same  land where the  defendant had constructed the  house. The sum total of this evidence is that defendant and his witnesses told court deliberate lies in order to try and grab the land of the plaintiff.  The evidence on record bears this out. I therefore do believe the plaintiff and her witnesses, as they were credible.

I disbelieve the defendant and his witnesses. The learned trial Magistrate did not address his mind to the evidence on record and instead dwelt on other trivialities. As rightly argued by appellant’s counsel the learned trial Magistrate failed to properly evaluate the evidence. Ground 1 therefore succeeds and is proved.

Ground 2: Conduct of locus

I have looked at the record of proceedings and noted that though court visited the locus, the learned trial Magistrate did not conduct the locus correctly.

According to Practice Direction N0.1 of 2007, it is stated and required under Rule 3 therefore that during the visit to the locus court should:-

1.  Ensure all parties and their witnesses and Advocates (if any) are  present.
2.  Parties and their witnesses adduce evidence at the locus in quo.
3.  Allow cross-examination.
4.  Record all proceedings at the locus.
5.  Record any observations, views, opinion, or conclusions of the court including drawing a sketch plan if necessary.

The aim of the visit is to check the evidence given in court and not to fill the gaps for them as per Waibi V Byandala HCB 28 at 29.

In the case before me it was necessary for  the plaintiff and defendant each  to take court around the land which  each claimed was the suit land  and to see the land which  defendant  claimed  was the subject of the  Tororo  case since   he alleged that it  shared boundaries.

The record of the locus proceedings however shows that court merely listened to evidence and did not go around the land.

There is no record of observations made by the learned trial Magistrate. There is no sketch map showing the location of the alleged lands.   

All the above  were very crucial for a case which  wholly  depended on the findings at  locus, as per the learned  trial Magistrate’s  findings contained  at page 4 last 4 paragraphs of his Judgment .

The learned trial Magistrate referred to observations made at locus which are  not found anywhere on record.

This is fatal. The courts have held consistently that once a court decides to visit locus then the right procedure ought to be followed, and any observation by the trial Magistrate   must form part of the proceedings.

See cases of Marieta Dyer Akile V. Mawadri George HCCA No. 2008 (unreported) and Paineto Omwero V Saulo S/o Zebuloni HCCS N0. 31 of 2010 (unreported) .

Such failure if proved has the capacity to vitiate   the trial rendering the decision  of the learned  trial  Magistrate  null and void.

As argued by counsel  for the appellant , the procedure adopted  by  the learned  trial Magistrate  at locus  did not  follow the right  steps contained in  Practice Direction 1/2007.

I do  agree that the failures pointed out  were fatal  and  did  amount  to procedural  irregularities, since the learned  trial Magistrate  based  on observations and views  he made  at locus which are  not part of the  proceedings. His findings there on are a nullity and cannot be relied on to support the findings he did. This ground therefore succeeds.

Ground3: Miscarriage of Justice:

Having found ground 1 and 2 proved, it follows that the learned trial Magistrate made errors which   amount to a miscarriage of justice.

As per Hadondi Daniel   Vs. Yolamu Ego( CACA No.67/2008) the miscarriage of  justice  is  said to have  been occasioned where there has been a misdirection on matters of  fact  or law and the decision cannot be supported having  regard to the  evidence on record  as a whole

I do find that on the basis of the evidence on record as a whole the learned trial Magistrate’s decision cannot stand. The ground is proved.

All in all this appeal is proved and succeeds on all grounds.  The appeal is allowed.

The decision and orders of the learned Magistrate are hereby set aside and a finding entered for the plaintiff/ appellant with costs here and in the court below. I so order.

Henry I. Kawesa

JUDGE

19.05. 2017