THE REPUBLIC OF UGANDA

IN THE SUPREME OF UGANDA

AT MENGO

(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA,
JJ.S.C.)

CIVIL APPEAL NO 9/2002 BETWEEN

ERISAFANI MUDDUMBA :::::::::::::::: :::::::::::::::
APPELLANT

AND

WILBERFORCE KULUSE :::::::::::::::::::::::::::::::::::::::
RESPONDENT

(Appeal from the judgment of the Court of Appeal at Kampala (G.M.
Okello, A.E Mpagi-Bahigeine, and J.P. Berko, JJ.A) dated 9.4.99
in Civil Appeal
No. 8/98)

JUDGMENT OF ODER, JSC

This is a third appeal. It is against the judgment of the Court of Appeal,
dismissing appellant's appeal from the High Court. The
High Court had dismissed
the appellant's appeal from a decision of the Grade I Magistrate's Court of
Kamuli.

The case arose from a dispute over a "Kibanja" piece of land. During 1984,
the appellant tried to evict the respondent from the kibanja.
The respondent
successfully sued him in a Grade II Magistrate's Court at Nawanyago in Civil
Suit No. 3/87. The appellant appealed
to the Chief Magistrate's Court in Jinja,
in Civil Appeal No. 79.88. On 6/5/91 the Chief Magistrate ordered a retrial.
However, on
6.5.91, the same Chief Magistrate, for unexplained reasons, directed
the appellant to file a new suit against the respondent in a
Grade I
Magistrate's Court at Kamuli. The appellant did exactly that in Civil Suit
10/91. He lost the suit, and appealed to the High
Court at Jinja in Civil Suit
No. 4/91. He lost that appeal, too. Consequently, he appealed to the Court of
Appeal which also dismissed
his appeal. He then filed an appeal to this Court
before leave to appeal had been obtained from the Court of Appeal as required by
section 7 (2) of the Judicature Act. The appeal was struck out. It was
subsequently reinstated after leave of the Court of Appeal
had been obtained on
30/7/2001. When the appeal was called for hearing on 13/11/2003, the appellant
applied to adopt his original
memorandum of appeal to this Court. The respondent
consented, and the Court granted the application.

In this Court the appellant conducted his case personally as a pauper without
assistance of counsel.

The grounds of appeal are set out in the memorandum of appeal as follows:

"l. The Honourable Justices of Appeal erred in failing to subject evidence
adduced in lower court to sufficient fresh and exhaustive
scrutiny.

2. The Honourable Justices of Appeal erred by not taking the law of
limitation Act of Uganda as important and without mind to the
period which I
have occupied the land in dispute which is over 67 years and I have permanent
crops and a permanent house built in
1950.

3. The Honourable Justices of Appeal erred for not taking falsehood,
contradiction and discrepancy in the respondent's case and of
the judgment of
Lower Court seriously which caused
injustice."

Ground 1 of appeal is a repetition of ground of appeal in the Court of
Appeal, which was abandoned before that court. The appellant,
nevertheless
argued that ground, but it was difficult for me to make sense of what he said.
He partly referred to the respondent's
evidence in Civil Suit No. 3/87, heard by
the Grade II Magistrate of Nawanyago, in which the respondent was the plaintiff
and the
appellant the defendant. With respect to the appellant, the evidence in
that case is irrelevant to the present appeal, which originated
from the suit
the appellant instituted against the respondent in the Grade I Magistrate's
Court in Kamuli. The appellant further
submitted that the Court of Appeal erred
to hold that the respondent had inherited the land in dispute although he did
not have a
certificate of title to it, and to have accepted the evidence of
Amisi, the respondent's DW2 at the trail that he, Amisi had sold
the land at
Shs: 400/= in 1944, to the respondent's father, Musalirwa, and the respondent
inherited the land from his father. This,
the appellant contended, contradicted
the respondent's evidence that his father, Yusufu Musalirwa, occupied the suit
and after the
"Kisoko" Chief had asked him for a "Kanzu" and Shs: 300/= of which
the respondent's father paid Shs: 180. In the circumstances, the
appellant
submitted that the Court of Appeal erred to have accepted the evidence of the
respondent's witnesses without scrutinizing
it. The appellant further submitted
that the Court of Appeal erred to have accepted the respondent's evidence that
the appellant
got the suit land through the Kyabazinga of Busoga in
1959.

In ground 3 the appellant repeated the submission he had made under ground 1,
criticising the Court of Appeal for believing the respondent's
evidence to the
effect, inter alia, that he (the respondent) inherited the suit land in 1964. If
that was true, the appellant contended,
then the respondent occupied the land
for 20 years before he instituted a suit for trespass against the appellant in
the Grade II
Magistrate's Court in 1987.

Mr. Ligga, the respondent's learned counsel argued grounds 1 and 3 together.
He submitted that the High Court as the first appellate
court in this case was
alive to its duty in that capacity and subjected the evidence in the case as a
whole to a fresh scrutiny,
reevaluated the evidence and reached its own
conclusion as it was entitled to do. It upheld the trial court on its findings
of fact.
Learned Counsel contended that the first appellant court fully weighed
all the evidence before the trial court and came to the conclusion
that the
respondent owned the suit land. The Court of Appeal as the second appellate
court did the same and upheld the findings of
the first appellate court.

I shall first consider grounds one and three of the appeal together, and
subsequently ground two. On the issue of evidence I must
however, point out from
the outset that the evidence relevant to this appeal is the one adduced in the
appellant's suit before the
Grade I Magistrates' Court. The evidence adduced in
the respondent's suit in the Grade II Magistrate's Court is absolutely
irrelevant.
This really, is stating the obvious, but it is necessary to do so in
view of the appellant's submission I have above referred to.

I am unable to agree with the appellant's submissions under grounds one and
three of the appeal. With respect to the appellant his
criticism of the Court of
Appeal that it did not scrutinize the evidence in the case and, by implication,
that if it had done so,
it would have rejected the respondent's evidence and
accepted the appellant's evidence instead, is unjustified. The Court of Appeals
the second appellate court in this matter. As such, it could only depart from
the concurrent findings of fact by the trial Magistrate's
Court and the
appellate High Court if special circumstances justified it doing so. This is
trite law on the role of a second appellate
court regarding findings of
fact.

In his judgment the learned High Court appellate judge properly directed
himself on the duty of a first appellate court as being,
inter alia, to subject
the evidence as adduced in the trial court to fresh and exhaustive scrutiny and
come to its own conclusion.
The learned appellate judge then examined in detail
the evidence adduced by the various respective witnesses of the appellant and
the respondent, and concluded:

"It was the above outlined evidence that formed the basis of the learned
trial magistrate's judgment. In his judgment, he gave reasons
why he disbelieved
the plaintiff and believed the defendant. He came to that decision after
considering all the evidence as given
by both sides. His reasons are to be found
on pages 7 and 8 of the typed copy of his judgment. With due respect to the
learned counsel
for the plaintiff/appellant I do not agree with him that when he
said that the learned trial magistrate never gave reasons for his
decision. I
have examined and considered all the evidence on record and I have come to the
conclusion that the decision reached by
the trial court was in no way contrary
to the weight of evidence as suggested by the learned counsel for the appellant
in this submission."

The learned appellant judge also considered alleged contradictions and
discrepancies between the respondent's evidence and that of
his witness Amisi
Balyawangu (DW2) regarding whether the respondent's father paid Shs: 300 or Shs:
400 for the suit land, and regarding
when the respondent acquired the disputed
piece of land. On this, the learned appellate judge concluded:

" I have failed to discover any material discrepancy in the evidence as
established by the defendant's/respondent's witnesses. Even if
there were some
minor contradictions, those could be explained away as some of these things
happened same 50 years ago."

The learned Lady Justice A.E
Mpagi - Bahigeine, J.A, wrote the lead judgment with which both the two other
members of the Coram in
the Court of Appeal agreed. The learned Justice of
Appeal, rightly so in my view, upheld the findings of fact by the learned
appellate
judge to which I have referred in this judgment and concluded
thus:

"There is overwhelming evidence that the appellant got access to the
respondent's land in 1959 on the pretext of setting up a shop
to assist people
around as Mr. Liiga narrated'. This is when he set up a permanent house. This
was through the assistance and influence
of the Kyabazinga. The appellant was
not allowed or meant to take the whole land. It is important to note that it was
the respondent
who sued him first. Secondly, the appellant ought to have been
able to define his boundary with the respondent, but he could not.
The Paucity
of the appellant's evidence tilts the evidence against him. Evidently, this is
why counsel said he had a difficult case.
No wonder counsel concentrated his
attack on the case put forward by the respondent forgetting the rule of law that
the plaintiff
wins on the strength of his case and not on the weakness of the
defence. Both lower courts properly and minutely examined the evidence
and
reached the correct conclusion. I find no merit in the appeal and would dismiss
it forth with."

I am unable to fault the
learned Justices of the Appeal on that conclusion. Grounds I and 3 of the appeal
should, therefore fail.

The appellant's submission on ground 2 is that the Court of Appeal never took
into account the provisions of the limitation Act whereas
the trial Magistrate's
Court did. In his judgments, the learned trial Magistrate framed the issues in
the case. The first issue was
whether the plaintiff's action was barred by any
law. The learned Grade I Magistrate answered that issue in the affirmative,
finding
that the plaintiffs claim was barred by section 6 of the Limitation Act.
In his appeal to the High Court, the appellant attacked
that finding in the
third ground of his appeal. The learned appellate judge considered the evidence
and the arguments of parties
on the issue and concluded:

"In his evidence, the plaintiff/appellant told the Court that the
defendant/respondent started encroaching his land some time in 1984
and that is
the date when the tort complained of commenced. Since this suit was filed on
sometime on 17/5/91 by then only 5 years
had expired and that did not attend the
provisions of sections 3 and 6 of the limitation Act. As the case arose in 1984
the plaintiff
was not time barred both for recovery of the land and in his
action for the tort of trespass. I hold that the learned trial magistrate
was
wrong in holding that the plaintiff/appellant was caught up by the provisions of
the limitation Act. The third ground of this
appeal is accordingly up
held."

The appellant's appeal to the Court
of Appeal was based on three grounds of appeal.

The first ground was abandoned. The remaining two grounds concerned alleged
contradictions in the evidence of the respondent's witnesses
at the trial. The
issue of limitation of time was not raised in the memorandum of that appeal, nor
was it canvassed in, or considered
by, the Court of Appeal, rightly so in my
view. The issue did not arise on appeal because the appellant had failed to
prove his case
on the facts supporting his case. I, therefore find no merit in
ground 2 of the appeal, which should fail. In the result, I would
dismiss this
appeal.

On the issue of costs in this appeal, the respondent's learned counsel
recalled that the appellant appealed to the Court of Appeal
as a pauper, but he
did not do so in appealing to this court. The learned counsel, nevertheless,
suggested that there should be no
order for costs. I accept the suggestion, and
would make no order for costs.

Before I leave this case, I would like to comment on the highly irregular
procedure with which the Chief Magistrate who handled this
case dealt with it.
The case went before her as Civil Appeal No. 79/88 in Jinja. She heard and
allowed the appeal and ordered a retrial
as follows:

"Accordingly the appeal is allowed and a retrial is herewith ordered to
enable both parties to be heard. It is further ordered that
the suit be filed in
a Magistrate's Court at Kamuli and same to be heard by a magistrate Grade II at
Kamuli station."

One year later, the record reads:

"6/5/91 both parties present. Chairman RC III Mr. Waibi and Moses Kalngu
Secretary RC III both parties and they have been advised
to open up a new suit
as the order of this court was on 6/2/90. The party which appealed in the name
of Mudumba should institute
a case in Grade I court

Kamuli as soon as possible.

Signed Mwonsha F. (Mrs) Chief Magistrate 6/5/91

There is no explanation regarding who moved the Court on 6/5/91; in what
capacity the Chairman and Secretary R.C III attended court
on that occasion; why
a new suit should have been instituted in stead of an order made for a retrial
of the original suit; why the
new suit should be instituted by Mudumba, who was
the original defendant in the suit before a Grade II Magistrate; and why the new
suit should be instituted before a Magistrate Grade I and not before a
Magistrate Grade II if it was proper for a new suit to be
instituted.

With the greatest respect to the Chief Magistrate concerned (as she then was)
this was a very strange procedure. Fortunately, it appears
to have caused no
miscarriage of justice to any of the parties.

As the other members of the Court also agree that the appeal should fail and
with the order I have proposed, the appeal is dismissed
and there is no order
for costs.

JUDGMENT OF TSEKOOKO. JSC:

I have read in advance the judgment prepared by my learned brother, The Hon.
Justice Oder, JSC and I agreed that the appeal should
be dismissed with no order
as to costs.

JUDGMENT OF KANYEIHAMBA, J.S.C.

I have read in draft the judgment of my learned brother, Oder, J.S.C, and I
agree that this appeal should be dismissed. I also agree
with the order he made
as to costs

JUDGMENT OF A.N. KAROKORA JSC

I have read in draft the judgment prepared by my learned brother, Oder J.S.C,
and I agree with him that this appeal should be dismissed.
I also agree with the
orders he has proposed.

JUDGMENT OF J.N.MULENGA, JSC.

I have read in draft the judgment prepared by my learned brother, Oder JSC,
and I agree with him that this appeal should be dismissed.
I also agree with the
orders he has proposed.

Dated at Mengo this 22^nd day of June
2004.