Acor Mary and Another vs Apuda William (High Court Miscellaneous Application No. 2 of 2022) [2022] UGIC 26 (9 September 2022)

Full Case Text

The Republic of Uganda High Court of Uganda Holden at Soroti High Court Miscellaneous Application No. Case 002 of 2022 [Arising from Katakwi land Case No. 013 of 2015]

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1. Acor Mary

2. Inout Willliam

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Versus

Apuda William ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

## **Judgment**

## 1. Background:

This Appeal arises out of a judgment of the Chief Magistrate at Katakwi delivered by His Worship Owino Paul Abdonson in katakwi Civil Suit No. 13 of 2015.

The Respondent Apuda William as Plaintiff instituted a Civil Suit at Katakwi Chief Magistrates Court against Acor Mary and Inout Willliam (Appellants) seeking the following: -

a. A declaration that the Plaintiff is the lawful owner of the disputed land with the right to possession.

b. An order for vacant possession of the suit land.

c. General damages for trespass.

- d. A permanent injunction restraining the Defendants, their agents and servants from further trespass. - 30

d. Costs of the suit.

The Plaintiff claimed that he is the customary owner of piece of land situate at Adungulu village, Keelim Parish, Ngariam sub county, Katakwi District measuring approximately 3 acres.

- The Learned Chief Magistrate delivered judgment in favour of the Plaintiff 35 (Respondent) on 20th day of December 2021 and made the following orders: - a. The plaintiff is declared the lawful owner of the suit land - b. Permanent injunction doth issues restraining the defendants and their agents and servants from further trespass. - c. An order of vacant possession doth issues against the defendants. - d. The plaintiff is a warded general damages of shs. $5,000,000/$ = for infringing his rights on the suit land. - e. Costs of the suit is awarded to the plaintiff. - The Appellants being dissatisfied with the judgement of His Worship 45 Owino Paul Abdonson, the Chief Magistrate filed this Appeal. - At the hearing of the Appeal, the Appellants were represented by M/s Obore & Co. Advocates while the Respondent was represented by M/s Erabu & Co. Advocates. - 2. Grounds of Appeal:

On 31st March 2022, Counsel for the Appellants filed a memorandum of appeal with the following grounds:

- a. That the learned trial magistrate erred in both law and fact when he failed to evaluate the evidence on record hence arriving at a wrong decision - b. That the learned trial, magistrate erred in law and fact when he failed to rule that the respondents suit in lower court was time barred.

c. That the decision of the trial magistrate has occasioned a miscarriage of justice upon the Appellants.

3. The Law relating to appeals to High Court:

Civil appeals to the High Court from the decisions of a Magistrates' Court is under Section 220 of the Magistrates Court Act which provides that;

Subject to any written law and except as provided in this section, an appeal shall lie—

from the decrees or any part of the decrees and from $(a)$ the orders of a magistrate' court presided over by a chief magistrate or a magistrate grade I in the exercise of its original civil jurisdiction, to the High Court.

The role of the first Appellate Court has since been resolved in various decisions of court including that of Selle and Another Vs Associated Motor – Boat Ltd and Others [1968] E. A 123 at page 126 wherein Justice Clement De Lestang held that an appeal is retrial and so an 75 appellate court must, while considering an appeal, reconsider the evidence which is on record, evaluate it itself and draw its own conclusions bearing in mind always that it has neither seen nor heard the witnesses and should make due allowance in that respect.

The same principle was re-echoed in the case of *Fredrick J. K. Zaabwe* 80 vs Orient Bank Ltd & 05 Others, SCCA No. 4 of 2006 by the Supreme Court of Uganda.

In Victorious Educational Services Ltd Vs Mega Consults Ltd HCCA No.007 of 2014, Justice Henry Peter Adonyo cited the holding of Gauldino Okello, Ag JSC in the case of Margret Kato & Joel Kato v Nulu Naluwoga SCCA No 03 of 2013 where the Supreme Court of Uganda while citing with approval the English decision in *Coughlan vs Cumberland [1898] 1 Ch. 704*, went on to hold that;

"... even whereas is in this case the appeal turns on $a$ $c)$ question of fact the Court of Appeal (as a first appellate Court) has to bear in mind that its duty is to rehear the case and the court must reconsider the material before the judge with such other materials as it may have decided to admit. The court must make up its mind not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong..."

Further in the case of Banco Arab Espanol -v-Bank $\boldsymbol{d)}$ of Uganda SCCA No.87 of 1998 quoted with approval of the case of Kifamute Henry vs Uganda SCCA No.10 of 1997 *(unreported) it was stated thus;*

We agree that on first appeal, the appellant is $e)$ entitled to have the appellant's own consideration and views of the evidence as a whole and its own decision as a whole. The first appellate court has a duty to rehear the

case and to reconsider the materials before the trial judge. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it".

Accordingly, given the fact that this is a first appeal from the Chief Magistrate's court of Katakwi, this Honourable Court being a first appellate court, will in re-evaluating the evidence on record, subject the same to a fresh scrutiny bearing in mind the holding in **Selle and Zaabwe cases** cited above.

It is the duty of the 1st appellate court to re-evaluate evidence on record and come up with its own conclusion.

- 4. Resolution of the Appeal: - a. Ground 1: - That the learned trial magistrate erred in both law and fact when he 120 failed to evaluate the evidence on record hence arriving at a wrong decision.

PW1 Apuda William testified that, the land was given to him by his uncle Faustino Ekwam who died in 1970 and he has been using the land peacefully until 2010 when the defendants trespassed. That he had gone 125 to Serere for his cousins wedding and when he came back he found D2 had built in the land. He reported to the LC11 chairman of Pakwi Parish since he is the chairman of two parishes. They were both called and found the land did not belong to the 2nd defendant. He was told to remove his house which he accepted and even removed it. The 1st defendant, mother to the 130 2nd defendant appealed and the decision in LC111 court overturned the decision of the LC11 court Ngariam sub county. That Pw1 appealed to the Chief Magistrate and was sent to court to open a fresh case.

In cross examination, he testified that when his uncle brought him on the land, D1 was not in the land and that he did not sue the 1st defendants husband because he had no problem with him.

He also added that the 2nd defendants father husband to 1st defendant was buried on the suit land.

Pw2 Ilokot Ben testified that, Faustino did not have a child and decided to gift the suit land to the plaintiff. the mother of the plaintiff Alio was the sister to Faustino Ekwam. That by that time the 1st defendant was living on her husband's land called Otim. That the 1st defendants husband was buried on the suit land due to the insurgency. That the 1st defendant in 2010 went back to her husband's land. He further testified that there was

a time all people in the village converged on the plaintiff's land including 145 himself Pw2, time reached each of them had to go back to dig on their land but came back to sleep at the plaintiff's home including the defendant.

He further added that, the uncle to the plaintiff was buried on the suit land including his grandparents and the graves were visible.

He also added that, the defendants have no grave in the suit land except 150 that of Otim.

Pw3 Osenyuk Sam testified that, the defendants entered the suit land in 2010 and built two houses on the plaintiff's land and trespassed on 3 gardens of the plaintiff

That Ekwam gave the plaintiff 8 gardens on which 3 are in dispute and $5$ 155 are not disputed. That there are Lira trees on the suit land planted by Ekwam and pw1 and Emidit trees which is natural

Both plaintiff's witnesses all testified that, Ekwam died and was buried in Busoga. The defendants however testified in court in their defence. 160

DW1 Acor Mary testified that, he got married to Otim from whom he inherited the suit land. That Otim was on the suit land and when she produced the 2nd defendant on the suit land in 1967. By then, the plaintiff was still in Amo village. She further testified that, the plaintiff became her neighbour in 1975, he had taken refuge due to the Karamojong insurgency. He came there because his maternal grandmother Adeit who was an aunt to D1's husband. That the defendant has no land in Adungulu and the land he lives on is for Irarak clan.

On cross examination, she testified that her husband died and was buried on the suit land including Otim's father but she does not know where 170 Otim's mother was buried. She states that there is a tree called "ere ere" at the boundary between her and Pw1.

Dw2 Odit Alfred testified that the plaintiff took refuge at Ekwam's home and is the nephew to Ekwam. That the land is for the 1st defendant as she inherited it from her husband who inherited it from his late father Inout.

He also testified that he knows the boundary between the plaintiff's land and suit land. That there is ebyong tree and ekaleyo tree and the plaintiff has now inherited Ekam's land. He further added that the trace of Otim's old homestead is there on the suit land.

He testified that the plaintiff started complaining of the suit land long time 180 ago. That the before pw1 allowed Otim to be buried there were some other people buried already on the suit land and that he does not know the plaintiff was given land.

Dw3 and Dw4 also confirmed D1's testimony and D2's testimony that, the defendant inherited the land from her husband.

Counsel for the appellant submitted that the 2nd Appellant Inout William did not testify in the lower court and as such he was condemned un heard which is against the principle of natural Justice. He went ahead and stated that one of the maxims of equity says "Justice should not only be done but should be seen to be done"

That denying the 2nd appellant an opportunity to testify in the lower court was unfair, unjust and condemned the 2nd appellant without hearing him.

He further submitted that the first appellant buttressed her ownership of the suit land at page 13 of the proceedings which is a confirmation that prior to 2010, the appellants were in occupation of the suit land. That both the defendant's witnesses testified that the Appellants husband was buried on the suit land.

He also emphasised the evidenced of DW2 at page 16 that, during the insurgency, the 1st defendant fled to Soroti and the plaintiff took advantage and entered upon the suit land and that there were traces of Otim's homestead on the suit land.

He further stated that the evaluation of evidence by the trial magistrate was wanting as he allowed Judgement in favour of the respondent in the lower court without factoring in what had transpired at locus. The findings at locus would have helped the magistrate to determine who was the rightful owner.

The respondent in reply stated that court has a wide discretion to determine its own witnesses at any time during the proceedings not limited to summoning during visiting locus in quo and cited the case of

John Kabasomi & Anor vs Brinhan John Civil Appeal No.33 of 210 2012 (Arising from Civil Suit No.122 of 2011).

He further submitted that, at page 7 of the proceedings dated 24,04,2018 and the 2nd appellant fully cross examined Pw1 the respondent, pw2 Ilokot Ben and pw3. That the interest of Dw2 was well catered for by the mother 1st appellant.

In the record of proceedings, the $2^{nd}$ defendant stated that, he was ready to proceed and give his evidence but there is nothing on record which shows that he withdrew that request. Also nothing shows that he was allowed to testify but declined to do so.

In this respect I would strongly disagree with counsel for the respondent, 220 who in his submission, alluded to the fact that since the 1st appellant/ defendant had testified, then her testimony covered those of the 2nd appellant/ $2^{nd}$ defendant since the 1st appellant was the mother of the $2^{nd}$ appellant with the $2nd$ appellant's testimony not going to add any more useful evidence. 225

That argument in my view is pedestrian. It is a cardinal constitutional principal of justice that justice shall not only be done but must be seen to be done.

The $2^{nd}$ appellant/ $2^{nd}$ defendant had a right to give his testimony as a party to the suit and once he informed court his intention to testify then then he should have been afforded the opportunity to do so within reasonableness. Given the fact that he was not afforded such an opportunity, I would conclude that the trial magistrate acted irrationally, unfairly and unjustly, making his final decision in regard to the dispute before to have been arrived at without fully enabling all applicable evidence to be received in court and be fully evaluated as required by law.

Accordingly, the denial of the $2^{nd}$ defendant/ $2^{nd}$ appellant his right to testify was fatal to the final decision of the trial court.

On the issue of visiting locus, it is true it is not mandatory to visit *locus in* quo unless court finds it necessary.

However, the purpose of visiting the locus in quo in a nutshell, is essentially to clarify on evidence already received in court which would enable the trial court understand the evidence better.

It is also intended to harness the physical aspects of the evidence in conveying and enhancing the meaning of oral testimony and thus it is limited to an inspection of the specific aspects of the case as canvassed during the oral testimony in court and also for the purpose of testing the evidence on those points only.

The practice of visiting the *locus in quo* is also to check on the evidence by the witnesses and not to fill in gaps in their evidence for them or lest court may run the risk of turning itself into a witness in the case.

## See: Fernades v Noroniha [1969] EA 506 and Nsibambi v *Nankya* [1980] *HCB* 81.

It should be noted that where it is necessary to visit locus, court should not ignore that so as to confirm the testimony given by the parties.

In the case of Evelyn Even Gardens NIC LTD and the Hon. Minister, Federal Capital Territory and Two Others, Suit No. FCT/HC/CV/1036/2014; Motion No. FCT/HC/CV/M/5468/2017 various factors were pointed out to be considered before the courts decide to visit the *locus in quo*. And such include where such a visit will clear the doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence.

See: Othiniel Sheke V Victor Plankshak (2008) NSCQR Vol. 35, $pg. 56.$

$[10]$

The essence of a visit to *locus in quo* in land matters includes location of 265 the disputed land, the extent, boundaries and boundary neighbour, and physical features on the land.

## See: Akosile Vs. Adeyeye (2011) 17 NWLR (Pt. 1276) pg.263.

In a land dispute where it is manifest that there is a conflict in the survey plans and evidence of the parties as to the identity of the land in dispute. the only way to resolve the conflict is for the court to visit the *locus in quo* See: Ezemonye Okwara Vs. Dominic Okwara (1997) 11 NWLR $(Pt. 527)$ pg. 1601).

- The purpose of a visit to locus in quo thus would eliminate minor discrepancies as regards the physical condition of the land in dispute. It is 275 not meant to afford a party an opportunity to make a different case from the one he led in support of his claims. - According to the facts of this matter, it was necessary for the trial court to visit *locus in quo* to confirm the accuracy of the evidence brought in court. to eliminate the discrepancies as regards to physical location of the land 280 in dispute in order to precisely determine who was the right owner of the piece of land in dispute given the fact that conflicting evidence was received in court that the suit land did not belong to the defendants with the defendants being merely neighbours to the suit land yet the defendants in their pleadings and testimonies received from their 285 witnesses insisted that the suit land was theirs arising from inheritance.

Given this position, it was very necessary for the court to visit the locus in quo to iron out the conflicting evidence as to location of the disputed land, its extent, its boundaries and boundary neighbours, and physical features on the land.

$[11]$

Arising from my finding on the issue of the denial of a party an opportunity to testify and the failure by the trial court to visit locus in this very contentious matter, I am inclined to conclude that there was clearly a mistrial in regard to the dispute between the parties herein requiring fresh trial for all evidence to be received and properly assessed. The interest of justice would thus require that a fresh trial be undertaken to exhaust all evidence required in relations to this matter. These two legal points alone would resolve this appeal.

Accordingly, therefore, this appeal succeeds to the extent of the rationale and my conclusions on Ground 1 alone. It is thus not necessary to consider other grounds.

5. Orders:

- This appeal is allowed with the orders of the lower trial $\overline{a}$ court set aside. - This Honourable Court thus order a retrial of the dispute between the parties herein before a different Chief Magistrate.

- The cost of this appeal to be in the cause.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

9th September 2022