THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
(ARISING FROM BUDAKA CIVIL SUIT NO. 63 OF 2011)
MUTEGO MUHAMADI ::::::::::::::::::::: APPELLANT
- ZUBAIRI MULYAKA
- HIKINYI PATRICK ::::::::::::::::::::: RESPONDENTS
BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA
Appellant raised three grounds of appeal. These were that;
- The learned trial Magistrate erred in law and in fact when he rejected the plaintiff’s case.
- Learned trial Magistrate erred in law and facts when he failed to put the evidence as a whole to that exhaustive scrutiny it needs.
- That the decision occasioned a miscarriage of justice.
As a first appellate court, this court has to review the evidence afresh and reach its own conclusions thereon. I have reviewed the lower court record and submissions on record; and evidence as herebelow;
PW.1 Muhammad Mutego, said that his father Malijani Hanoli died D.1 was appointed the caretaker by the clan in 1973. He kept PW.1 in his home. When PW.1 grew and asked D.1 for his property (land) he told him he had mortgaged it to D.2. When clan was summoned D.1 showed them the land which he had partly sold and gave him a small portion which had remained.
PW.2 Christopher Naluya, clan chairman of Bubengo Nalwele, and brother of D.1-Zubairi Mulyaka told court that the Plaintiff was still young and they entrusted him to D.1 as heir and caretaker of the children. When PW.1 grew and demanded for his land it was realized that D.1 had mortgaged it to D.2 and later sold it to D.2. The clan met and resolved that the land be given to plaintiff.
PW.3 Tappi Kasifa, wife of D.1, stated that D.1 is her husband and D.2 her brother. When her brother-in-law Hanoli died D.1, was elected the caretaker of the children. Later when PW.1 demanded for his land, D.1 said he had mortgaged it to D.2.
PW.4 Hadira Abdalla, stated that plaintiff was his brother and D.1 his biological father. D.2 is a villagemate. Plaintiff’s father died and was brought home when D.1 was giving them their shares, plaintiff also claimed for his father’s land. D.1 told him that he had mortgaged the land. He confirmed that land was for plaintiff’s father and D.1 was only a caretaker.
DW.1 stated that he had given plaintiff his share before death of his grandfather Abdalla. Plaintiff later sold off his share. Later he added him another piece, and has no further claim.
DW.2 Ikinyi Patrick said in 2003 D.1 mortgaged his land. He kept on adding him money until when he decided to sale him the land which he accepted and had the land sold to him.
DW.3 Abdalla Hadira stated that their grandfather Abdallah Kamba died, plaintiff grew and his grandfather gave him two pieces of land and a wife. Plaintiff sold off the upper part of his land.
Court visited the locus.
That being the evidence on record the learned trial Magistrate evaluated the same and concluded that on the balance of probability the plaintiff failed to prove that the suit land is his property.
I now resolve the grounds as below:
Ground one: Rejecting plaintiff’s case:
Appellants complained that the Magistrate wrongly rejected the plaintiff’s case.
I have gone through the learned trial Magistrate’s judgment. I noted that the judgment did not review or evaluate the record as a whole. The learned trial Magistrate in merely seven lines on page 2 of his judgment attempted to review the plaintiff’s case. In those lines he did not give any analysis of the evidence and show why he chose to reject it. He then in two paragraphs looked at the defence case and dwelled at length on it justifying why he chose to believe it.
The above evidently shows that the learned trial Magistrate never gave the evidence a thorough scrutiny. The evidence on record in my view satisfied the requirements of section 101 of the Evidence Act. Consistently the plaintiff through PW.1, PW.2, PW.3 and PW.4 showed how his land was mortgaged by D.1 to D.2. also in defence D.1 and D.2 confirm that a mortgage of plaintiff’s land by D.1 indeed happened. The plaintiff satisfied the requirement for proof on a balance of probability. The testimonies of PW.1-PW.4 who all were close relatives to D.1, is more credible than the unverified evidence of D.1 and D.2 and their lone witness DW.3. I agree with appellant’s counsel’s submissions on this ground. I agree that the evidence is overwhelming in support of the appellant. The learned trial Magistrate did not base his decision on the weight of evidence adduced by plaintiff in the original suit, and hence wrongly rejected his case. I uphold ground 1 of this appeal.
Ground 2: Failing to scrutinize the evidence:
In assessing ground 1 above I agree with appellant’s submissions in ground 2 that the learned trial Magistrate did not properly evaluate the evidence on record and put it to exhaustive scrutiny. This ground also succeeds.
Ground 3: Miscarriage of Justice
A decision is said to have occasioned a miscarriage of justice if there has been misdirection by the trial court on matters of facts relating to the evidence tendered or where there has been unfairness in the conduct of the trial resulting to an error being made. This was held in Handodi Daniel v. Yolamu Egongi CACA No. 67, and Matayo Okumu v. FRansiko Amudhe & 2 Ors (1979) HCB. 229.
The above principle is clearly demonstrated by the findings of the learned trial Magistrate. In rejecting the plaintiff’s case without subjecting all evidence on record to proper scrutiny, caused a miscarriage of justice.
I therefore find that the ground is proved.
All in all this appeal has succeeded on all grounds as prayed. The appeal is allowed with costs to the appellant. The judgment and orders of the lower court are hereby set aside and replaced with a finding that the land in question belongs to the plaintiff/appellant; with costs here and below. I so order.
Henry I. Kawesa