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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
FROT PORTAL
HIGH COURT CIVIL APPEAL NO. 18 OF 2003
(ORIGINAL CIVIL
SUIT NO MSD 45 OF 2001 OF THE CHIEF
MAGISTRATE’S COURT OF MASINDI AT
HOIMA)
ASIIMWE EDWARD .......................... APPELLANT/DEFENDANT
VERSUS
REV. CANON KAKONGORO ................. RESPONDENT/PLAINTIFF
BEFORE: HON. JUSTICE LAMECK N. MUKASA
JUDGMENT:
The appellant Asiimwe Edward was the defendant in the original suit
Masindi Court Civil Suit No: MSD 45 of 2001. In the original
suit the
respondent Rev. Canon Elisha Kakongoro, who was the plaintiff, sought, inter
alia, for an order evicting the appellant
and other occupants from the land
situated at Kabuye – Kitoma Village Kihukya Parish, Busiisi Sub-county,
Hoima Road.
The respondent’s evidence before the trial court was
that he acquired the suit land from one Mazinga who had given it to him
in 1959.
The land was demarcated by poles and trees planted there when he acquired the
land. The boundaries of the land had been
demarcated by the said Mazinga in the
presence of one Kaahwa. The trees planted had grown into big trees and on them
he had put
barbed wire to fence the land. The respondent’s case was that
the appellant or his cows had broken the barbed wire and was
committing acts of
trespass on the land. Further he claimed that he was offered a lease over the
land by the Uganda Land Commission
but the appellant had stopped the surveyors
from surveying the land, thus preventing the respondent from obtaining a
Certificate
of title to the land. The respondent further testified that there
was a part of the original Mazinga’s piece of land which
was given to the
respondent, which Mazinga gave to the Appellant and is still vacant.
The
appellant’s testimony before the trial court was that he is a son of
Yosamu Byakutaaga and a grandson of Mazinga. That
the suit land was their clan
land given to him by his father who had inherited it from Mazinga. That
Mazinga, had at the respondents
request, only allowed the respondent to
temporary stay on the land without building thereon a permanent house. The land
where the
respondent was allowed to temporary stay had been demarcated by Rukoni
Trees, which had grown into big trees. The respondent denied
any claim to the
land whose boundaries are marked by the Rukoni Trees which had grown into big
trees. His interest was in the land
newly enclosed by barbed wire and Mitoma
trees. That the respondent was grabbing more land than had been given to him.
In his judgment the learned trial Magistrate identified the main issue
before him for determination as being how much land was the
respondent occupying
undisturbed or uninterrupted in peaceful enjoyment for a period of over 12
years. That once this was established,
the appellant would not be allowed to
make up having slept on his rights beyond what the law can allow.
In
his judgment the learned trial magistrate found that the respondent was
occupying about ⅔ of the suit land and ordered the
appellant to be evicted
therefrom. He further ordered the appellant to pay ⅓ of the costs of the
suit. The appellant filed
this appeal upon the following grounds:-
1. That the learned Magistrate erred in law and in fact in granting the suit land to the respondent on the premises that the respondent had stayed onto the suit land for more than 12 years without any evidence to that effect.
2. The learned Magistrate erred in extending and granting 50 meters of the land from the one originally given to the Respondent by the Appellant’s grandfather as evidenced by the mature Rukoni trees.
3. The learned Magistrate erred in finding that because the Respondent had planted beans and maize planted on the suit land such was conclusive evidence that the Respondent had been in occupation for more than 12 years.
4. The learned Magistrate erred in finding that the appellant had slept on his rights, when in fact the Respondent had taken advantage of the fact that the appellant had gone for an in –service course at Uganda Management Institute to grab the appellant’s land.
5. The learned Magistrate erred in law and in fact by holding in favour of the Respondent, after rightly observing that there was no evidence that the late Mazinga had given the suit land to the Respondent, but instead there was evidence that it was the undisputed land measuring approximately 2.5 acres which had been given to the Respondent.
6. The learned Magistrate erred in law and in fact in believing the evidence of the wife of the Respondent after rightly observing that she had not been privy to the proceedings on the date the late Mazinga gave land to the Respondent and further erred by holding in favour of the Respondent on the basis of such evidence.
7. The learned Magistrate erred in law in holding that the Respondent/Plaintiff had proved that it was more probable that the Respondent/Plaintiff occupied ⅔ of the said land without showing the parameters of how the ⅔ factor was arrived at.
8. The learned Magistrate erred in holding that the Appellant/Defendant pay ⅓of costs to the suit to the Respondent/Plaintiff.
In his submissions counsel for the appellant handled grounds 1, 2, and 3 together, grounds 4,5, and 6 individually and then 7 and 8 together. I intend however to handle grounds 1, 2, 3 and 4 in that order then grounds 5 and 7 together then 6 and lastly 8. This being a first appellant court it has a duty to re-evaluate the evidence adduced before the trial court as a whole by giving it fresh and exhaustive scrutiny and then draw its own conclusion of fact and determine whether on the evidence the decision of the trial court should stand. See Pandya V/S R (1957) EA 336, Seller & Anor V/S Associated Motor Board Co. Ltd & Others (1968) EA 123.
In the first ground the appellant contends that the learned Magistrate erred in law and in fact in granting the suit land to the respondent on the premises that the respondent had stayed onto the suit land for more than 12 years without any evidence whatsoever. The trial Magistrate in his judgment stated:
“I believe plaintiff’s evidence and that of his witness that he has occupied the land for over 12 years undisturbed except that the area beyond the road leading to the plaintiff’s home that is about fifty meters (50) from the road leading to the plaintiff’s home from the main Road ---- had no signs of occupation by the plaintiffs for the period of over 12 years. The poles of barbed wire seen relatively new ------ . Though cattle were seen on that piece of land, it is more probable that cattle has recently been put there. The reasons one that considering the land about 2.5 acres where also cattle is looked after, this land is surrounded by Rukoni trees, making a natural paddock that the trees are now big trees. If the plaintiff had occupied the piece of land I am referring to where I found cattle, the same kind of fences would have been visible, and even if cut down the stalks of such an old fence would be visible.
---- it is therefore believed that the defendant’s departure for study
was taken advantage of by the plaintiff to fence land
that the plaintiff did
not occupy before”
The learned Magistrate goes on to conclude as
follows:-
“I resolve this issue by saying that the plaintiff is lawful owner of the part of the suit land having proved to this court that it is more probable he occupied about ⅔ of the suit land than not.”
The respondent’s evidence is that one Mazinga had a piece of land
of which he gave the respondents a portion in 1959. The
fact that Mazinga gave
a portion of his piece of land to the respondent was admitted by the appellant
in his testimony though according
to him it was for temporary occupation and
secondly that the respondent came to the land in 1964. The appellant in his
testimony
stated
“—The plaintiff came to our land in 1964. Rev. Kakongoro was given a place, well demarcated; he was to stay there temporarily. The demarcation of Rukoni Trees has been there for over 30 years. They are now big trees. Rev. Kakongoro was given land which is in the confines of the Rukoni ---- I have no claim on the land demarcated by the Rukoni. I still respect the wishes of my grandfather ----“
This suit was filed on 12th October 2001, a period far beyond
12 years whether computed from 1959 or 1964. Therefore the learned Magistrate
made a correct finding
that the respondent had been on the land for more than 12
years. Further the learned Magistrate finding was not in respect of all
the
suit land but a portion thereof the location of which he gave in his judgment.
This first ground of appeal fails
The second ground of appeal is that
the learned Magistrate erred in extending and granting 50 meters of land from
the one originally
given to the Respondent by the Appellant’s grandfather
as evidenced by the mature Rukoni trees.
I have herein above already
quoted the learned Chief Magistrate finding in this regard. My interpretation
of the learned Magistrate
finding above is that the approximately 50 meter
stretch of land as described above was not within the land originally occupied
by
the Respondent. At the locus in quo the learned Magistrate drew a sketch
plan which I have studied. On the sketch plan he indicated
a road marked as
leading to the plaintiff’s home. At the left of the road is a spot
marked A1. Then moving further left
for a distance marked 50m is a spot marked
B1. Then moving from point B1 upwards towards the area described as
Bukya’s land
is a spot marked C1. From the trial Magistrates findings as
quoted above and the sketch map the 50 meter piece of land would be
that land
between spot A1 and B1 up to C1 on the sketch map.
However, the learned
Magistrate further down in his judgment contradicts himself. He drew up yet
another sketch map within the judgment.
On it he does not indicate spot A1 and
B1. He however indicates the road to the respondent (plaintiff’s) home.
From the
road to the left he indicates a stretch of 50 meters which would be the
stretch A1 to B1 on the sketch plan drawn at the locus in
quo. He also
indicates the spot C1. He shades all the area to the right from spot C1 and the
spot marked B1 on the original sketch.
Then he concludes as follows:-
“What is proved before me is that the plaintiff has occupied land (suit
land) partially as I am to describe. That is the land
from point A1- B1 –
C1. This includes the land about 2.5 acres surrounded by Rukoni trees, the
land where the new home is,
the crops, the pine trees, the road leading to the
house but not beyond the palm leaves trees at the commencement of the valley.
----“
Then below the sketch plan within the judgment, the learned
Magistrate states:-
“Shaded is declared plaintiff’s occupied land and the unshaded remains defendant’s inherited land”
I find the learned Magistrates final description contradicting his
earlier findings. The decision had the effect of even giving the
50 meters
piece of land to the plaintiff. The second ground of appeal therefore
succeeds.
Regarding the third ground of appeal the learned
Magistrate’s statement was:
“The plaintiff has a house now on the land and pine trees and garden on the land, for crops including beans, maize and some bananas.”
This was a statement of a finding that the Respondent had gardens of
beans and maize among other crops on the suit land. I however
fail to see where
the learned Magistrate based his decisions on the existence of the two crops on
the land. His finding that the
respondent had stayed on a portion of the suit
land for a period over 12 years was based on other evidence among which was the
appellants
admission that his grandfather the late Mazinga, had in 1964 allowed
the respondent to occupy a portion of the late Mazinga’s
original piece of
land. This ground fails.
In the forth ground the appellant contends that
the learned Magistrate erred in finding that the appellant had slept on his
rights,
when in fact the Respondent hand taken advantage of the fact that the
appellant had gone for an in-service course at Uganda Management
Institute to
grab the appellant’s land. The Respondent’s testimony before the
trial court was that he had occupied the
suit land since 1959 on a grant from
the late Mazinga. This is corroborated by PW2 Rachael Kakongoro, the
Respondent’s wife
and PW3, Tito Mbahereki Dorotyo, brother of the
Respondent who testified that he accompanied the Respondent when he was given
the land by Mazinga. According to the appellant the Respondent had come to the
land in 1964. However, the appellant gave his testimony
on 11th
September 2002. If the Respondent came to the land in 1959, the Respondent must
have been about one year old. On the other hand
if the Respondent came in 1964,
then the appellant was only six years. Since he must have been born in 1958.
Thus, a minor and
it was his testimony that it was his late father Byaruhanga
who had informed him of how the Respondent had come to the land. Therefore
all
appellant’s statements with regard to how and when the Respondent came to
the land was hearsay and inadmissible. However,
DW4, Edisa Kimanywenda who
testified that he is the son of the late Mazinga and was around when land was
given to the respondent
said that is was in 1964. This is corroborated by DW2,
Yubu Kitangaza, who was a neighbour to Mazinga and still a neighbour. Also
by
DW4Evais Kabahukya, brother of the appellant who testified that he was 52 years
on the date of his testimony, that is 13th March 2003 and a young boy
when the Respondent came to the land in 1964. That is about 14 years old. One
is capable to remember
what he had seen at that age.
Section 5 of the
Limitation Act provides:
“No action shall be brought by any person to recover any land after
the expiration of twelve years from the date on which the
right of action
occurred to him or her or if it first occurred to some person through whom
he/she claims to that person”
This suit was filed on
12th October 2001. If the Respondent had unlawfully entered the land
whether in 1958 or 1964 and the appellant land wanted to bring an
action in 2001
to recover the land clearly his action would have been time barred by the
Limitations Act.
In the instant case the original suit was instituted by
the Respondent seeking an eviction order, general and exemplary damages for
trespass and costs. In his written statement of defence the appellant denied
the alleged act of trespass and raised a defence of
rightful entitlement to the
area beyond the piece of land given to the respondent in 1964 by the
appellant’s grandfather Mazinga
for temporary occupation. Throughout his
testimony the appellant disclaimed interest in any land given to the respondent
by the
late Mazinga. Further in his pleadings the appellant did not raise any
counter claim. Therefore at no stage had the appellant brought
any action for
recovery of land. Therefore section 5 of the Limitation Act was of no
application in the instant case.
The trial Magistrate statement in
his judgment was:-
“--- the real question to determine is how much land was plaintiff
occupying undisturbed or uninterrupted in peacefully enjoyment
for a period of
over 12 years. Once this land is established, certainly the defendant would not
be allowed to wake up having slept
on his rights beyond what the law can allow,
(see limitation Acts 6 (now section 5).”
The trial Magistrate
finding was that the respondent had adduced evidence to show that he had
occupied a portion of the land for over
twelve years. His worship also found
that there was another portion of the land which the respondent had failed to
prove was under
his occupation for the period of over twelve years. It is this
particular portion which the learned Magistrate identified as being
in dispute.
In respect to that land the learned Magistrate stated:-
“—It is not doubted that the suit land was land of defendants
grandfather which land defendant inherited and had his
relatives like Edisa,
Kinanyerenda, Bukya and Salia. It is therefore believable that the
defendant’s departure for study was
taken advantage of by the plaintiff to
fence the land that the plaintiff did not occupy before.”
His
conclusion was that “the plaintiff has occupied land (suit land) only
partially—“
The learned Magistrate in referring to the twelve
years limitation period he was using it as a guiding principle. That had the
appellant
filed a suit to recover that portion of the land which the respondent
had occupied for over twelve years wouldn’t his claim
been caught up by
the provisions of the limitation Act. Using that yard stick the learned
Magistrate on the evidence on record came
to a right decision in respect of a
portion of the suit land. His find was not in respect of the entire land. It
excluded the land
which he found had been encroached upon by the respondent
while the appellant was away at college. Therefore this ground
fails.
The lower court having resolved as outlined above the remaining
major issue before it was that of boundaries separating the two portions.
This
brings me to the grounds 5 and 7 which I will handle together. The fifth ground
is that the learned Magistrate erred in law
and in fact by holding in favour of
the respondent after rightly observing that there was no evidence that the late
Mazinga hand
given the suit land to the Respondent, but instead there was
evidence that it was the undisputed land measuring approximately 2.5
acres which
had been given to the Respondent. In ground seven the appellant contends that
the learned Magistrate erred in law in
holding that the Respondent/Plaintiff had
proved that it was more probable that the Respondent/Plaintiff occupied ⅔
of the
said land without showing the parameters of how the ⅔ factor was
arrived at.
In his submissions before the trial court counsel for the
appellant prayed to court to find that land in the mature Rukoni trees should
be
adjudged as belonging to the plaintiff (respondent) and land outside that but
encompassed in a barbed wire fence is not the property
of Rev. Kakongoro.
Counsel further submitted that the plaintiff (respondent) had gone outside what
he was given and planted pine
trees. He conceded that the pine trees were over
and above 12 years. And he accordingly, taking into consideration the
provisions
of the Constitution (1995), the Land Act and the Limitation Act,
further conceded that court find that the and on which the pine
trees stand be
adjudged the property of the plaintiff (respondent).
In his testimony the
respondent stated that when he was given the land in 1959 its boundary was
planted with trees which have over
time grown into mature trees. PW3 Tito
Mbahereki testified that he accompanied the Respondent when the acquired land.
That boundary
of the land was planted with Muwawura and Rukoni trees which are
still there.
The appellant’s evidence was that the land given to
the respondent was enclosed within a boundary marked out by Rukoni trees
about
30 years old. That while he was away for studies the respondent extended the
land occupied by him and enclosed the encroached
on land in a barbed wire fence
on Mitoma trees. His claim was to this land which was clearly distinct from the
original land as
the fence around it was young about one year old. His
testimony was corroborated by the other defence witnesses. DW4 Edisa
Kimanywernda
a son of the late Mazinga further stated that the respondent was
not to go beyond the wild palm tree. In the proceeding at locus
the learned
Magistrate stated:-
“I can recognize the boundaries of the land
given to the plaintiff. There are many Rukoni trees around the land”
The learned Magistrate held:
“What is proved before me is
that the plaintiff has occupied about 2.5 acres surrounded b y Rukoni trees, the
land where the
new house is, the crops, the pine trees, the road leading to the
house but not beyond the palm leaves tree at the commencement of
the
valley.”
The trial Magistrate while at the locus in quo drew a
sketch plan which has the distinct features explained hereinbelow. There is
an
area which is shaded indicated as free land about 2.5 acres and as undisputed.
This is the area agreed by all parties as enclosed
in the old Rukoni trees. On
the evidence on record the learned Magistrate rightly found that this was the
land originally given
by the late Mazinga.
At the inner most edge of that
land is located an old home of the respondent and further above beyond the house
is a new house of
the respondent. Beyond the old house but to the inner side
opposite the new house on the hill one pine trees. Beyond the pine trees
at the
extreme boundary is a palm leaves tree. From the palm tree backwards on the
side where the undistributed land is located
in the valley wherein there is a
forest between the forest and the new house are crop gardens.
The
evidence on record shows that overtime the respondent went beyond the land
granted to him by the late Mazinga. That is the land
where pine trees are, the
crop gardens, and the hose together with the road leading to the house. I base
my finding on the sketch
plant drawn at the locus by the trial Magistrate, the
evidence of DW4 brother of the late Mazinga, who stated that the respondent
was
not to go beyond the wild palm tree. That is considered together with the
concession by the appellant’s counsel in his
submitting at the lower court
that pine trees be adjudged as the property of the Respondent as they were
clearly older than 12 years.
The 50 meters strip of land from the left hand
side of the road to the Respondent house was found with no signs of the
Respondent’s
occupations for a period of 12 years by the trial Magistrate.
The learned Magistrate findings and sketch drawn at the locus should
be adhered
to. Therefore, the boundary line should follow the road to the
respondent’s house, move uphill to enclose in the
pine trees proceed down
to the valley at the palm tree, so that the land to the right hand side is for
the respondent and the land
to the left is that which the appellant is entitled
to.
There is no evidence on record of any measurements or survey of the
land having been undertaken. The sketch plan was neither drawn
on scale. I
therefore do not find any parameters of how ⅔ for the respondent and
⅓ for the appellant were arrived at
by the learned Magistrate. I find the
sketch in the judgment contradictory to the sketch drawn at the locus. The
sketch at locus
should be the one to follow since it was based on what was being
observed at the material time when it was drawn. Therefore those
two grounds of
appeal succeed.
Regarding the sixth ground wherein the appellant
contended that the learned trial Magistrate should not have believed the
evidence
of the Respondent’s wife after observing that she had not been
privy to the proceedings on the date the late Mazinga gave the
land to the
respondent and further erred in holding in favour of the respondent on basis of
such evidence. Rachael Kangoro’s
evidence regarding the boundary of the
land was that it was planted with Rukoni, Mutoma, and Emiko trees. That to the
west their
land extended up to near a mango tree on Kahuka’s land and to
the east it went up to the stream and to a well downward. Looking
at the sketch
plan drawn at the locus the boundary as extended up to the stream at the back of
which were the fresh barbed wire poles
which was found to be only about one to
two years old. It therefore included the land found to have been encroached on
by the respondent
while the appellant was away at college. The learned
Magistrate, as the evidence of the Respondent and PW3. Tito Mbakereka Dorolijo
did show, rejected and rightly so, the said witness’s evidence as to
boundaries. However, it was her testimony that she had
moved in to occupy the
land with her husband. They were married in 1957. Therefore she could
competently give evidence regarding
the occupation of land and the developments
thereon which dated beyond 12 years. The learned trial Magistrate was in fact
able to
observe such developments on his visit to the locus. This ground
fails.
The last ground of appeal is that the learned Magistrate erred in
hold that the appellant/Defendant pays ⅓ of costs of the suit
to the
Respondent/Plaintiff. The law governing costs in suits is laid down in section
27 of the Civil Procedure Act. Under the
section the award of costs is in the
complete discretion of the judge and cost should follow the event unless the
Judge for good
reason order other wise. Such discretion should be exercised
judicially. See Prince J.D.C. Mpunga Ruhindi V/V Prince Solomon Iguru &
Others SCCA No 18 of 1994.
The respondent’s case was that the
appellant or his cows broken the barbed wire fence around his land and that the
appellant
had stopped the surveyors from surveying the respondent’s land
over which he had been granted a leave. The record shows that
the respondent
had intended to survey land beyond the portion he was actually entitled to. It
was found that the respondent had
extended his land to the barbed wire fence
which was beyond the land he was entitled to. In actual fact it was the
respondent according
to the evidence on record and the finding of the trial
Magistrate who had committed acts of trespass. In the circumstances I find
that
the learned Magistrate did not properly exercise his discretion when he ordered
the appellant to pay ⅓ of the costs to
the respondent, there was no
justification for it. The order as to costs should have followed the event.
This ground succeeds.
In the final result I make the orders
below:
1. The file be referred back to the Magistrate Grade I, Hoima to go to the locus in the presence of the parties and their respective counsel and the local authorities of the area of location of the suit land to mark out the boundary line, guided by the sketch plan drawn at the locus by the trial Magistrate such boundary line to follow the road leading to the Respondents home, move uphill to enclose within the respondent’s side the pine trees and proceed down to the valley at the palm tree.
2. The appellant is awarded costs both at this court and the court below.
Lameck N. nsubuga
JUDGE
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