Ankwa v Agwokotho & Another (Civil Appeal 26 of 2018) [2024] UGHC 1004 (3 October 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 0026 OF 2018

# (ARISING FROM CIVIL SUIT NO. 0064 OF 2012)

## ANKWA SALVE VINCENT OKECHA:::::::::::::::::::::::::::::::::::: **VERSUS** 1. CHRIS AGWOKOTHO ODUBI (Legal Representative of GILBERT OROM)

2. OYENYGIU HENRY:::::::::::::::::::::::::::::::::::: 15

## BEFORE HON. JUSTICE COLLINS ACELLAM

(Appeal from the judgement and orders of His Worship Tibayeita Edgar Tumusiime, Magistrate Grade 1 at Nebbi dated 28<sup>th</sup> August 2018 in Civil Suit No. 0064 /2012) 20

JUDGEMENT OF THE COURT:

### **Brief introduction**

This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that; a) The appeal be allowed, and the judgement and orders of the Learned Trial Magistrate be quashed and set aside.

b) Judgement be entered in favor of the appellant that the appellant is the owner of the suit land.

c) Costs of the appeal and in the court below be awarded to the appellant.

### Grounds of Appeal

The grounds of Appeal as seen in the Memorandum of Appeal state; 35

- The Learned Trial Magistrate erred in both law and fact when he failed to properly $\mathbf{1}$ evaluate the evidence on record and thus came to a wrong conclusion that the suit land belongs to the respondents thereby occasioning the appellant a miscarriage of justice. - The Learned Trial Magistrate erred in both law and fact when he believed the 40 $2.$ respondents' evidence which were full of glaring contradictions and inconsistencies to hold that the suit land belongs to the respondents thereby occasioning the appellant a miscarriage of justice.

The Learned Trial Magistrate erred in both law and fact when he allowed the $3.$ 45 respondents to depart from their pleadings that the land belongs to them thereby occasioning the appellants a miscarriage of justice.

### Grounds in Opposition

In opposition to the Appeal, the Respondent did not file written submissions and there 50 is no affidavit of proof of service on record.

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#### Representation $\mathsf{S}$

During the trial, the Appellant was represented by M/S Donge & Co. Advocates whereas the Respondents were self-represented according to the Record and Memorandum of Appeal.

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I have had the opportunity to peruse through the file inclusive of all pleadings and their Annextures. Counsel for the Appellant filed their submissions which I have duly put into consideration to come up with this decision. I shall now proceed to enlist the grounds of appeal in contention. I note that the Respondents did not file their written submissions as there is no affidavit of service to prove effective service on them. The

15 Appellants also filed no Rejoinder on record.

### Ground 1

The Learned Trial Magistrate erred in both law and fact when he failed to properly evaluate the evidence on record and thus came to a wrong conclusion that the suit land belongs to the respondents thereby occasioning the appellant a miscarriage of justice.

In his submission, the Appellant submits that the findings of the Learned Trial Magistrate were based on conjecture and improper evaluation of the evidence on record,

- there was no evidence adduced that the appellant's father gave the land to Katherina and 25 Kalimera unconditionally or at the trial that the suit was time barred. The Plaintiff (Appellant) discharged the burden on him and proved on a balance of probabilities that he is the customary owner of the suit land having been given the same by his father Vicensio Anyolitho in 1980. The Respondents' claim was not that they were given the land, it was that they are the customary owner of the suit land having inherited it from - 30 their father Owile. There was no evidence on record that the appellant's father gave the land unconditionally to Katherina and Kalimera. The Respondents' family were all using the suit land with the permission of the Appellant and his father and were therefore licensees on the suit land which license lapsed when Benedicta was stopped from using - the suit land and she accepted and left the suit land. Neither of the Respondents is using 35 the suit land and none has ever used the suit land and there were glaring inconsistencies in their case which were grave and went to the root of the case which should have been ignored. - There is no response from the Respondents. 40

### **Consideration of Court**

# Duty of the first Appellate Court.

- The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. Then it must make up its own mind not disregarding 45 the judgement appealed from but carefully weighing and considering it, see the decision in Kifamunte Henry vs Uganda SCCA No. 10 of 1997. - In the first ground of appeal, the trial Magistrate is faulted for having failed to properly evaluate the evidence on record regarding inconsistencies and contradictions in the 50

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respondent's evidence and failure to analyze the evidence adduced thus occasioned a 5 miscarriage of justice on the appellant.

In the case of Odong Jackson V Odongkara Joe HC Civil Appeal No. 110 of 2018, Court stated that; "It is settled law that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being 10 rejected. Minor ones unless they point to deliberate untruthfulness will be ignored (see Alfred Tajar v. Uganda, EACA Cr. Appeal No.167 of 1969, Uganda v. F. Ssembatya and another [1974] HCB 278, Sarapio Tinkamalirwe v. Uganda, S. C. Criminal Appeal No. 27 of 1989, Twinomugisha Alex and two others v. Uganda, S. C. Criminal Appeal No. 35 of 2002 and Uganda v. Abdallah Nassur [1982] HCB).

- 15 The gravity of the contradiction will depend on the centrality of the matter it relates to in the determination of the key issues in the case. What constitutes a major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material, i.e. "essential" to the determination of the case. Material aspects of evidence vary from case to case but, - generally in a trial, materiality is determined on basis of the relative importance between the point 20 being offered by the contradictory evidence and its consequence to the determination of any of the facts or issues necessary to be proved. It will be considered minor where it relates only on a factual issue that is not central, or that is only collateral to the outcome of the case." - In the instant case, the respondents' claim in their Written statement of defence was that 25 they were the customary owners of the suit land having inherited it from their father Owile who also inherited it from his father called Ndrunga, DW1 testified in court that his elder brother Okello Bonifansio was digging the land in 1948 for a long time then left it to his sister Sabina Amonditho in 1950 and Sabina went back to her home towards - the end of 1950, in 1963 his sister Catherine Akwiya and her husband came back and 30 DW1 handed over the suit land to her, who became old and left the land to Detha Obedigui the sister of D2, then later the Plaintiff started cultivating the suit land in 2002, DW2 (D2) testified in Court that his auntie Catherine Akwiya in 1994 while she was about to die, she gave land to his brother called Themu, who gave it to his sister Obedigui Benedicta, cultivated it till 2011 when they saw the Plaintiff cultivating part of the land. - 35 Mateo Adubango (DW1) testified that the suit land was for D1's grandfather called Omile then D1's father inherited it and D1 also inherited it from his father and concluded that the suit land belongs to Themu. Whereas the Plaintiff (Appellant) maintained a consistent testimony that the suit land was first owned by his grandfather - Ngangeyo who died and left it to his father Vincensio Anyolitho and that his father gave 40 him the suit land in 1980 before his death in 2008. he added that when his father gave him the land, it was Catharina and Kalimera using it and they used it until 2011, that in 2010, his father had stopped them from using the land but he found Benedicta on it but she accepted to leave after harvesting her cassava in 2011 then he started using the land and the 2<sup>nd</sup> Respondent sued him. 45

There is no evidence adduced to prove that the plaintiff's father gave the suit land to Katherina and Kalimera unconditionally as he kept checking in on them and eventually stopped them from using the land and they left. Benedicta came onto the land without his permission, and he asked her to leave which she did after the harvesting of her cassava

50 in 2011, and the Appellant was able to start utilizing the suit land. The evaluation of evidence done by the trial court leaves some conclusions made unexplained or reasoned

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- out with the law; for instance, the conclusion that the appellant's father completely gave the land to Katherina and Kalimera and left no claim by his family, limitation cuts out $\mathsf{S}$ the claim of the appellant for the suit land, and that the respondents are in occupation of the suit land. - The court record does not reflect a locus visit report for this court to make an assessment on the status of the suit land, reference to locus in the judgement only mentions the 10 location of the suit land and its neighbors. These were material contradictions, and they were never explained by the witnesses therefore should not have been ignored by the trial court. This undermined the credibility of the respondent's case in their tendency to point to a deliberate attempt at obscuration of the matters in controversy. 15 - However, I opine that the evidence available on record is not sufficient to determine the lawful owner of the suit land. I therefore cannot completely opine that the suit land belongs to the appellant as the record of appeal does not reveal who is in current occupation of the suit land or whose story is more believable than the other, a retrial - 20 would be in order in the circumstances.

Ground 1 therefore partly succeeds and partly fails.

The Learned Trial Magistrate erred in both law and fact when he believed the respondents' evidence which were full of glaring contradictions and inconsistencies to hold that the suit land belongs to the respondents thereby occasioning the appellant a miscarriage of justice.

In ground 1, the appellant discussed evaluation of evidence and also covered the contradictions and inconsistencies in the respondents' evidence at the trial which is also the main point in this ground 2.

I opine that this Court's resolution in ground 1 also resolves ground 2. 35

Ground 2 accordingly fails.

### Ground 3

The Learned Trial Magistrate erred in both law and fact when he allowed the respondents to depart from their pleadings that the land belongs to them thereby 40 occasioning the appellants a miscarriage of justice.

In his submission, the Appellant submits that under Order 6 rule 6 of the Civil Procedure Rules and the case of Appollonia Nakirya & Anor V A. G [2006]1 HCB 65, parties are bound by their pleadings during the trial. The respondents in the trial court filed a written statement of defence stating that they inherited the suit land from their late father Owile who also inherited it from his father called Ndrunga. They however departed from their pleadings while testifying at trial and stated that the suit land belongs to them, the first Respondent's elder brother Okello Bonifansio was digging the land in 1948 for a

long time then left it to his sister Sabina Amonditho in 1950 and Sabina went back to 50 her home towards the end of 1950, in 1963 his sister Catherine Akwiya and her husband

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came back and DW1 handed over the suit land to her, who became old and left the land to Detha Obedigui the sister of D2, then later the Plaintiff started cultivating the suit $5$ land in 2002, DW2 (D2) testified in Court that his auntie Catherine Akwiya in 1994 while she was about to die, she gave land to his brother called Themu, who gave it to his sister Obedigui Benedicta, cultivated it till 2011 when they saw the Plaintiff cultivating part of the land. Mateo Adubango (DW1) testified that the suit land was for D1's grandfather called Omile then D1's father inherited it and D1 also inherited it from his 10 father and concluded that the suit land belongs to Themu. This was a complete departure from their pleadings and is contrary to Order 6 rule 7 as new grounds were raised by the respondents without applying for amendment of pleadings.

# Consideration of Court.

On perusal of the Record of proceedings under the Record of Appeal filed, all the facts stated above by Counsel for the Appellants are correct. The Respondents in their WSD filed clearly stated that they owned the suit land as they inherited it from their father who got it from their grandfather. Then while on oath testifying in Court, DW1 stated that it was first cultivated by his elder brother who kept kept transferring it till when the party occupied it, and DW2 stated that it was owned by his brother Themu who inherited it from his auntie Catherine.

In the case of Muwakanya Elias V Kakombe Fabiano HC Civil Appeal No. 0059 of 2019, Court stated that; "The Civil Procedure Rules under Order 6 rule 7 provide that; 'No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading.' It is my considered opinion that this was a clear departure from the pleadings as illustrated above and which is prohibited by law. It is trite law that parties are bound 30 by their pleadings and this position was affirmed in the cases of Jani Properties Ltd V Daressalaam City Council (1996) EA 281 and Struggle Ltd V Pan African Insurance Co. Ltd (1990) ALR 46-47, wherein Court rightly observed that; 'the parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record moreover, the court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by 35

them. No party can be allowed to depart from their pleadings."

In the instant case, the trial Magistrate erred in law when he found and relied on the evidence adduced by the respondents that Themu owned the suit land as testified by DW2 other than proving that they owned the suit land through inheritance from their 40 father as stated in their WSD. As such, I find that the respondents departing from their pleadings offends Order 6 rule 7.

This ground therefore succeeds. 45

Accordingly, in line with the resolution of ground 1, I find that the evidence on record is insufficient to determine who the actual owner of the suit land from either the appellants or the respondents.

I therefore dismiss this appeal, set aside the judgement and orders the Learned Trial Magistrate and order a retrial of this matter before a different judicial officer.

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I so order. $\mathsf{S}$ $662024$ ...................................... Dated at Arua this....(................................ $\overline{\phantom{a}}$ $10$ Collins Acellam JUDGE