Aluin v Acoda (Civil Appeal 41 of 2022) [2024] UGHC 593 (26 June 2024)

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0041 of 2022

(Arising from Kumi Civil Suit No. 011 of 2019)

Aluin Yason :::::::::::::::::::: 10 ....................................

## Versus

Acoda William ::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::

(Appeal from the judgment and orders of the Chief Magistrates Court of Kumi at Kumi delivered on the 30<sup>th</sup> day of August 2022 by H/w Maloba Ivan, Magistrate Grade One)

$5$

Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

## Judgment on Appeal

## 1. Background.

This appeal arises from the judgment and orders of the Chief Magistrates Court of Kumi at Kumi delivered on the 30<sup>th</sup> day of August 2022 by H/W Maloba Ivan, Magistrate Grade One.

Acoda William (The respondent) filed Civil Suit No. 011 of 2019 against Aluin Yason (the appellant) for recovery of land measuring 2 (two) gardens located at Kajamaka cell, Ongino sub-county, permanent injunction, general damages and costs.

The facts constituting the claim were that at all material times Acoda William (The $\mathsf{S}$ respondent was the rightful owner of the disputed land having acquired the same by way of purchase from Opolot Yakobo with 1 cow and 30,000/ $\neq$ in 1989.

That he had used the suit land right from the time of purchase in 1989 until 2002 when Aluin Yason (the defendant), now the appellant started disturbing and trespassing onto the suit land claiming the same.

That the appellant has been charged several times for criminal trespass and he strongly contended that the two gardens being referred to by the appellant as his is totally misguided and there was a lot of evidence to prove that the respondent bought the suit land.

The appellant in his written statement of defence denied the above allegations 15 contending that the suit land has never been the property of the of the late Opolot Yakobo, who he acknowledges was his son-in-law, and who he contended, however, had no right to sell it.

He further contended that the suit land rightfully belongs to him having inherited the same from his father the late Adoili Ibrahim in 1952 and he has utilised the 20 land for so many years for cultivation.

That it is the respondent who forcefully trespassed on the suit and has stubbornly refused to stop its use to date.

The matter was heard and determined by trial magistrate who in his judgement found for the plaintiff, now respondent and issued the following orders; 25

- a) The disputed land measuring approximately two (2) gardens at Kajamaka cell/village, Kapolin Parish, Ongino sub county, Kumi District are for the plaintiff. - b) That the defendant is a trespasser on the suit land.

- c) A permanent injunction does issue against the defendant and his agents from any act of dealing on the disputed land. - d) General damages of Ugx. 3,000,000/= (Three million shillings) is awarded to the plaintiff as general damages. - e) Each party to bear their own costs.

$\mathsf{S}$

- The appellant was dissatisfied with the judgement and orders of the trial 10 magistrate and so he appealed to this court on the following grounds; - a) The appellate court failed in its duty as the first appellate court to reappraise the evidence on record thus reaching an erroneous decision which occasioned a miscarriage of Justice. - b) The trial Magistrate erred in law and fact when it decreed the suit land to 15 the respondent in total disregard of the appellant's evidence of purchase. - c) The trial Magistrate erred in law and fact when he relied on a document which was not produced in court by the respondent. - d) The decision of the trial court has occasioned a miscarriage of Justice. - 2. Duty of the first appellate court. 20

This Honourable Court is the first appellate court in respect of the dispute between the parties herein and is obligated to re-hear the case which was before the lower trial court by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and to re-appraise the same before coming to its own conclusion as was held in Father Nanensio Begumisa and Three Others v. Eric Tiberaga scca 17 of 2000; [2004] KALR 236.

The duty of the first appellate court was well stated by the Supreme Court of Uganda in its landmark decision of Kifamunte Henry Vs Uganda, SC, (Cr) Appeal No. 10 of 2007 where it held that;

"...the first appellate court has a duty to review the evidence of 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"

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor 10 heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and make its own conclusions. See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

In considering this appeal, the above legal provisions are taken into account.

3. Representation. 15

> The appellant was represented by M/s Legal Aid Project of the Uganda Law Society while the respondent was represented by M/s Ewatu & Co. Advocates.

> This matter proceeded by way of written submissions and the same have been duly considered in its determination.

- 4. Determination. 20 - a) Grounds 1 & 2. - The appellate court failed in its duty as the first appellate court to reappraise the evidence on record thus reaching an erroneous decision which occasioned a miscarriage of Justice. - The trial Magistrate erred in law and fact when it decreed the suit land to 25 the respondent in total disregard of the appellant's evidence of purchase.

The first ground was reframed by the appellant's counsel in their submissions to read: That the trial Magistrate erred in law and fact when he failed to reappraise

$\mathsf{S}$

the evidence on record thus reaching an erroneous decision which occasioned a $\mathsf{S}$ miscarriage of Justice.

While this is not the proper procedure for amending grounds of appeal, I will allow the same in the interest of justice.

Counsel for the appellant submitted on the burden of proof and the principles of evaluation of evidence relying on Havinder Jhass Sing Vs Rosemary Asea H. C. C. A 10 No. 08 of 2016, UgaChick Poultry Breeders Ltd vs Tadjin Kara CACA No. 2/97 and Kifamunte Henry Vs Uganda, SCCA No. 10 of 1997 and sections 101 and 102 of the Evidence Act.

Counsel submitted that the appellant clearly presented his case on the balance of probability which version the respondent failed to shake.

Counsel further stated that the Appellant and his witnesses uncontrovertibly and consistently testified from the evidence and testimony of DW1, DW2, DW3, DW4 and DW5 that it is evidently clear that in 1998 when the Appellant came back from Kidongole in Bukedea where he had sought refuge due to the insurgency,

he found the Respondent was occupying his land and when he approached the 20 respondent as to how he was occupying his land, the Respondent instead went and opened a case of criminal trespass against him.

That the Appellant was born and raised on the suit land which had been given to him by his father the late Adoli Ibrahim in 1952 before his death in 1958.

That the appellant had run to Kidongole for refuge due to the insurgency in the 25 1980's and left no one behind and when he returned when peace had been restored, he found the Respondent utilizing the suit land and also had no knowledge on whether Opolot had sold to the Respondent any land.

Counsel further submitted that the Respondent lied to court when he said the $5$ sale agreement was lost in his house in 1991 and that he had bought the suit land in 1989.

Counsel argued that in 1989, the insurgency in the area was in its peak and under normal circumstances no one purchases land during such a period when everyone was seeking refuge and without most of the neighbors, Local 10 authorities of the area where the land is located being present and or witnessing the same.

Further counsel submitted that annexure A that was attached on the witness statement of the respondent does not show where the appellant signed as there

was no evidence to show that Epolot took over that land from the appellant 15 making the transaction the respondent was relying on as idle talk.

Counsel additionally submitted that there was no evidence adduced by the Respondent that Opolot Yakobo sold the land in dispute to him and he also failed to adduce evidence that the suit land was given to Opolot Yakobo or that there

was a mutual understanding between the two for payment of dowry as a refund 20 to him his having married the appellant's daughter Asio Florence and that the marriage between the two had failed.

That the Appellant and his witnesses proved through testimony of having no knowledge whatsoever of the purported failed marriage and the refund of dowry.

That the respondent accordingly failed to discharge the duty to prove on the 25 balance of probabilities that the suit land was his property but rather he was a land grabber.

Counsel for the respondent in reply reproduced the evidence in the lower court submitting that it was his considered opinion that the respondent and his

- witnesses proved his case on the balance of probabilities that the land belonged $\mathsf{S}$ to the respondent while the appellant's testimonies with that of his witnesses were riddled with a lot of contradictions and inconsistencies such as the year when he came back after the insurgency and whether he had knowledge on the sale by Epolot or not. - Counsel further added that the trial learned Magistrate upon reappraising all the 10 evidence on record judiciously at pages 8 and 9 of the judgement found that although the respondent did not produce the land sale agreement between him and late Epolot Yakobo, the respondents witnesses were all firm and all confirmed having witnessed the transaction between late Epolot Yakobo and the - respondent and that the said late Epolot Yakobo acquired the said land as a result 15 of the dowry refund in 1989 which he sold to the respondent.

In support of this assertion, counsel for the respondent pointed out that the respondent did tender in the lower trial court PEX.1,2,3,4&5 which are documents indicating his several efforts in trying to protect his right of ownership of the suit land.

That on the other hand there was no proof adduced in court that the appellant at any one time since 1990 tried to have the respondent leave the suit land after returning from Kidongole in 1990 as alleged yet this was a year after the purchase of the suit land.

Counsel finally submitted that this Honourable Court should concur with the trial 25 court that the respondent lawfully acquired the suit land from late Epolot Yakobo who also acquired from it the appellant and prayed that these grounds fail.

The Evidence on record in respect of this matter as gleaned from the lower trial court record is summarised as follows;

The respondent testifying as PW1 stated that he acquired the suit land by way of $5$ purchase from the late Epolot Yakobo for the consideration of one black cow and Ugx. 30,000/= in 1989 in the presence of the appellant, Odeke Peter, Kaladi Jennifer, Obotol James, Akurut Edisa, Elungat Yonasan, Odeke Darlington, Enguriat s/o Elungat, Ariko Stephen, Olicho Bosco, Aluin Kokas, Akurut Elizabeth, Ogole Joseph and Olupot William. 10

That it was the appellant who looked for him to purchase the suit land from the late Epolot Yakobo and a land purchase agreement was executed between him and Epolot authored by Amaidel Martin but the same got lost with all his other documents during the insurgency in 1991.

- During cross-examination he maintained that he bought the land from Epolot 15 Yakobo who told him that he got the same as a result of attachment in default of refund of dowry. He further stated that the appellant himself told him the same and he first saw the appellant in 1989 when he came to him stating that his son in law wants to sell the land. - This respondent's testimony was corroborated by PW2 Odeke John who is 20 neighbor to both parties and son of the late Epolot Yakobo. He testified that his father married appellant's sister called Asio Florence but the two got a misunderstanding in 1989 prompting Epolot Yakobo to demand a dowry refund of 18 cows. That he together with his father approached the appellant who agreed to the debt and offered land in exchange for the refund of the dowry, 25 which land is the suit land.

That the appellant showed and handed over the suit land to Epolot Yakobo and that even the appellant then led them to the respondent as a buyer whom he knew and in the same year the respondent bought the suit land from Epolot Yakobo for one cow and Ugx. 30,000/= with the knowledge of the appellant who $\mathsf{S}$ also signed the on the land purchase agreement as a witness.

PW3 Kaladi Jennifer, a neighbor to the respondent and daughter to Epolot Yakobo corroborated PW2's testimony adding that the cow was kept at her home as she was also Yakobo Epolot's daughter and that the purchase agreement was also made at her home written by the late Amaidel Martin.

PW4 Akurut Elizabeth neighbor to the respondent and niece to the appellant corroborated the dowry refund and sale of the suit land in 1989 as testified to by the respondent and his witnesses and who during cross-examination added that it is not true that the appellant ran away from the land because of the insurgency rather that he sold some of gardens and went to Kidongole to enjoy himself.

PW5 Olupot William also corroborated the respondent's evidence adding in cross-examination that when the appellant came back after the insurgency he stayed on his land where he had built and not the one in dispute and the one where he had built was his land.

During re-examination PW5 stated that the respondent is on the land the 20 appellant gave to Epolot Yakobo.

PW6 Osire Barnabas also corroborated the evidence of the respondent adding that in 2010 he chaired the LC II Court proceedings and the appellant agreed to give the respondent one cow and Ugx 30,000/=.

The appellant on the other hand testifying as DW1 stated that the respondent 25 came to cultivate his land measuring two gardens when he had left to seek refuge in Kidongole. He claimed he was born and raised on the suit land, he was given approximately four (double) gardens by his father Adoili Ibrahim in 1952 before

his death in 1958. He stayed on the land and only left in 1987 during the $\mathsf{S}$ insurgency but came back in 1998.

During cross-examination he stated that when he came back in 1990 he found the respondent cultivating his land and he reported him to different clan leaders. He denied there being any problem during the subsistence of Epolot's marriage

to his daughter Asio and that he never refunded any dowry. That he only heard 10 of Epolot selling the land in a meeting and he doesn't believe that Epolot sold the land to the respondent because he did not give him any land.

DW2 Akurut Anna Margaret wife to the appellant stated that she married the appellant in 1960 and stayed on the suit land.

During cross-examination she stated that they came back to the suit land in 1998 15 and found the respondent on their land, the appellant then reported him to the LC1 Kareu. She also denied the existence of a dowry refund regarding one Asio who is her daughter.

DW3 Akol Simon son to the appellant corroborated the appellant's evidence.

DW4 Ochola James' testimony was similar to DW3, however, in re-examination 20 he confirmed that the respondent purchased the said land in the absence of the Inyakoi clan.

The trial court visited locus in quo and both parties agreed on the boundary of the land. The appellant claimed that there were two graves of Monica and Adioli

Isout that the respondent cleared. 25

> Court observed that there were two mango trees on the suit land which the respondent had stated as features on the land.

It further observed that the land was vacant with no activity being undertaken $\mathsf{S}$ by either party and that there were no graves on the land as alleged by the appellant.

The trial court having considered the evidence given by both parties as well their Counsel's submissions framed the main issues for determination as whether the

appellant gave the suit land to the late Epolot Yakobo as a dowry refund in 1989 10 and whether Epolot Yakobo thereafter sold the same to the respondent.

From the findings of the trial court, there was no contention that the suit land was once property of the appellant having been given the same by his father Adioli in 1952. That what was in dispute was whether the appellant later gave it out to Epolot Yakobo as dowry refund.

From his testimony, the respondent clearly states that it was the appellant who approached him with the late Epolot Yakobo and it was the appellant who asked him to buy the suit land.

This testimony as noted above was corroborated by all the witnesses of the 20 respondent who are also neighbors to the suit land as well as the relatives of the late Epolot Yakobo.

The daughter and son to Epolot Yakobo all confirmed that they were present when the marriage between Asio daughter of the appellant and their father Epolot Yakobo failed and he sought a dowry refund which the appellant accepted

to do so and offered in lieu of the 18 cows paid to him as dowry, the suit land. 25 These witnesses also witnessed the sale of the gardens from Epolot Yakobo to the respondent and were all firm in their testimonies which remained unchallenged during cross-examination in regard to those facts.

The appellant on the other hand only denied that the marriage failed but adduced $\mathsf{S}$ no evidence to this effect unlike the respondent.

I find that the PID1 which were the proceedings and judgement before the LC II Court of Aakum Parish in 2010 are sufficient to answer the question on whether the appellant gave the land to Epolot. These proceedings were only admitted as

- identified for lack of the original however I find that given that they were 10 tendered in by the LC II Chairman at the time Osire Barnabas who testified as PW6, the same should have been marked as an exhibit as Section 60 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence with section 62 of the Evidence Act defining - secondary evidence to mean inter alia copies made from or compared with the 15 original, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with those copies and oral accounts of the contents of a document given by some person who has himself or herself seen it. (Emphasis mine) - In this instance PID1 was copy of the LC II Court proceedings and judgment 20 between the respondent and the appellant in 2010.

PW6 chaired the LC11 court meeting and confirmed the existence of the same document and the decision therein. The same ought to have been admitted by the trial court especially since the appellant did not deny the existence of the

same. 25

> On the first page of those proceedings, the appellant in his statement states that he stopped the respondent from ploughing. He adds that he wants his gardens back because he got the one cow and 30,000/= which the respondent gave Mr. Epolot Yakobo his in-law. When questioned by the respondent as to why he


allowed Epolot Yakobo to sell his garden yet he was present as a witness he $\mathsf{S}$ answered that the reason was to pay Epolot's debt.

I find that these proceedings corroborate the respondent's testimony that he bought the suit land from Epolot Yakobo in 1989 in the presence of the appellant. I further find that the absence of the land sale agreement, notwithstanding, the

- respondent sufficiently proved on a balance of probability that the suit land was 10 sold to him in 1989 after Epolot Yakobo had received the same as a dowry refund from the appellant. The appellant failed to prove that this transaction did not happen and even that no failed marriage between his daughter Asio and Epolot ever occurred. - Counsel for the appellant fronted the argument that the respondent's claim was 15 a lie because there is no way he bought land during the insurgency which was a period of unsafety.

That argument cannot be adopted by this court for as noted by the trial court there was no evidence that transactions were barred during the insurgency as PID1 proceedings confirms.

Furthermore, for a court to find that because of the insurgency land transactions were an impossibility, there would have to be other cogent evidence to prove that such a transaction could not occur due to the said insurgency but none was offered by the appellant.

Indeed, the appellant's own niece called Akurut Elizabeth who testified as PW4 25 and is neighbour to the respondent told court that the appellant never went to Kidongole as a result of any insurgency but he sold several pieces of land and merely relocated to Kidongole on to come back later to claim the land he had already given to Epolot Yakobo.

- The above facts being so, I would find that the trial magistrate rightly evaluated $5$ the evidence on record and found that the respondent rightfully was the owner of the suit land which he bought from Epolot Yakobo who got it from the appellant as a dowry refund. Grounds 1 and 2 accordingly fail. - b) Ground 3.

## The trial Magistrate erred in law and fact when he relied on a document which was 10 not produced in court by the respondent.

The essence of the appellant's submissions herein is that the respondent did not adduce evidence that the Epolot Yakobo sold him the suit land.

The determination of Grounds 1 and 2 above sufficiently determines this grounds and as such I will not delve into it again. It fails also accordingly as there was 15 documentary proof in terms of PID1 which was unfortunately not tendered in court which ought to have been so and oral accounts of the contents of the sale agreement given by those who saw and participated in the transaction such as PW3 Kaladi Jennifer who is a neighbour to the respondent and daughter to Epolot

- Yakobo who testified to the fact of the purchase agreement being written by the 20 late Amaidel Martin and written from her home and she saw it. That being so, ground 3 similarly fails. - c) Ground 4.

## The decision of the trial court has occasioned a miscarriage of justice.

- Having determined grounds 1 to 3 in the negative this ground automatically fails 25 - 5. Conclusion.

This appeal is found to lack merit and the same is dismissed with each party to bear their own costs.

## 6. Orders.

$5$

This appal fails on each and every ground as it is found to be unmerited. it is thus dismissed accordingly and the following orders issued;

- The appeal is dismissed as it lacks merits. - The judgment and orders of the lower court are accordingly upheld. $\overline{\mathcal{L}}$ - The costs of this appeal and those in the lower trial court awarded to the respondent.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

26<sup>th</sup> June 2024

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