Atyang & Another v Aluku & 2 Others (Civil Appeal 26 of 2016) [2023] UGHC 344 (21 February 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT LIRA** LAND APPEAL NO. 026 OF 2016

#### 1. ATYANG FRANCIS 2. OPIO MORRIS ::::::::::::::::::::::::::::::::::: **VERSUS**

#### 1. ALUKU DAVID

2. ANENA JOEL

## 3. OKELLO CHARLES :::::::::::::::::::::::::::::::::::: (BEFORE:HON. JUSTICE ALEX MACKAY AJIJI)

#### **JUDGMENT**

This Appeal arises out of the Judgment of the Magistrate Grade 1 His Worship SERUWO BENJAMIN M, Magistrate Grade 1 in Land claim No. 004 of 2015 delivered on the $09/11/2016$ .

The background of this Appeal is as follows;

The plaintiffs/respondents sued the appellants/defendants in Land Claim No 004 of 2013 for a declaration that they are the rightful owners of land measuring approximately 4 acres situated in Aminolike Village, Atinokok Parish, Abia Subcounty, Alebtong District, a permanent injunction, general damages, costs of the suit and any other relief.

The appellants in their defence denied the allegations against them and stated that they were the rightful owners of the land.

The Magistrate Grade one delivered Judgment on the 09<sup>th</sup> day of November, 2016 and made the following orders;

- 1. The disputed land measuring 4 acres belongs to the plaintiffs. - 2. Although the plaintiffs prayed for general damages, it is their evidence that it is them that allowed the defendants on the suit land in 2010 until 2013 when they wanted the land back. I find general damages of UGX $300,000/$ = only appropriate for the inconvenience suffered from 2013.

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- 3. Court issues a permanent injunction against the defendants and their servants in regards to the suit property which shall take effect 14 days from the date of delivering this judgment. - 4. Costs are awarded to the plaintiffs.

The Appellants being dissatisfied with the Judgment delivered filed this appeal. At the hearing of this appeal, the Appellants were not represented while the respondents were represented by M/s Abwang Otim, Opok & Co Advocates.

The Memorandum of Appeal filed on the 11/11/2016 before this Honorable Court contains the following grounds;

- 1. That the Magistrate Grade 1 erred in Law and in fact when he entertained a claim from the respondents, gave judgment in their favor as against the appellants when indeed the respondents had no cause of action. - 2. That the trial Magistrate erred both in Law and fact when she failed to properly evaluate the evidence on record and rendered judgment and orders against the appellants which occasioned miscarriage of justice.

The respondents filed written submissions which have been considered. The appellants were ordered by this court to file their submissions by the 30<sup>th</sup> day of November, 2019 but they chose not to.

#### Duty of the $1^{st}$ Appellate court

This court being a first appellate court has a duty to re-evaluate the evidence before the trial court and draw its own inference of fact while making allowance for the fact that it did not have the opportunity enjoyed by the trial court of seeing or hearing the witnesses; See BANCO ARABE ESPANOL Vs B. O. U, S. C. C. A. No.8 OF 1998

In re-evaluating the evidence and subjecting it to fresh scrutiny, I will keep in mind the evidence adduced by both parties at Trial in order to resolve the grounds presented in the memorandum of Appeal.

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### Determination.

# Ground one.

That the Magistrate Grade 1 erred in Law and in fact when he entertained a claim from the respondents, gave judgment in their favor as against the appellants when indeed the respondents had no cause of action.

Counsel for the respondents submitted that the respondents' pleadings disclosed a cause of action. He made reference to paragraph 3 of the plaint which stated that the plaintiffs had brought the suit against the defendants for a declaration of customary ownership of land of approximately four acres.

Paragraph 4 detailed the facts constituting the cause of action that is; that the plaintiffs are the customary owners of the land measuring approximately 4 acres situated in Aminolike Village, Atinokok parish, Abia subcounty, Alebtong District. That this land was allocated to them by their father the late Opio Teopila in 1994. That in the year 2010, the first defendant approached them and requested them the suit land for cultivation of maize for two years and that in 2013 when the plaintiffs went to take over their land, the defendants threatened them with pangas.

Counsel further submitted that by their own pleadings in the lower court, the respondents showed that they had a right to possess the suitland which right was violated by the appellants who are liable.

A cause of action is defined as every fact which is material to be proved to enable the plaintiff succeed or every fact which if denied, the plaintiff must prove in order to obtain a judgment. (Cooke vs Gull LR 8E. P 116, Read v **Brown 22 QBD P.31).** It is disclosed when it is shown that the plaintiff had a right, and that right was violated resulting in damage and the defendant is liable. This position has been reiterated in the Supreme Court decision of Tororo Cement Co. Ltd v Frokina International Limited SCCA No.2 of2001.

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The question of whether a plaint discloses a cause of action must be

determined upon perusal of the plaint alone together with anything attached so as to form part of it. See; Kebirungi v Road Trainers Ltd & 2 others [2008] HCB 72, Kapeka Coffee Works Ltd v NPART CACA No. 3 of 2000.

I have perused the record of the lower court and the plaint that is attached thereto and in paragraphs 3-4, the plaintiffs plead that they are the owners of customary land approximately four acres situated in Aminolike village, Atinokok parish, Abia sub county, Alebtong District having obtained the same from their father the late Opio Teopilo in 1994.

In paragraphs $4(d)$ - (e) of the plaint, the plaintiffs describe how the defendants approached them with a request to allow him cultivate maize on the suitland for a duration of two years. When the same period lapsed in 2013 and the respondents wanted to repossess their land, the appellant became hostile towards them making repossession impossible.

Paragraphs 3-4 of the plaint thus portray that there was a right which right was violated and the defendants/appellants were liable.

It is settled that a cause of action arises when a right of the plaintiff is affected by the defendant's acts or omissions. (See; Elly B. Mugabi v Nyanza Textiles Industries Ltd [1992-1993] HCB 227).

I therefore agree with the submissions of the respondents that by their own pleadings in the lower court, the respondents showed that they had a cause of action against the appellants.

I answer this ground in the negative.

## **Ground Two**

That the trial Magistrate erred both in Law and fact when she failed to properly evaluate the evidence on record and rendered judgment and orders against the appellants which occasioned miscarriage of justice.

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PW 1 Aluku David testified that the suitland belonged to his grandfather who bequeathed it to his sons their parents who in turn split it amongst themselves. He further states that the defendants (now appellants) came to them and were given land to cultivate for two years after which they refused to leave.

PW 2 Anena Joel testified that they sued the defendants (now appellants) because of land wrangles. That it is his grandfather Aluku John who left the suitland with his father Opio Theupirus. His father utilized it until 1994 when he distributed it among the three of them and they began utilizing it until 2010 when Atyang Francis came and requested them for some land to grow sorghum. In 2013 when Aluku wanted the land and went to cultivate it, he was arrested and when they went to plough it, the defendants now appellants made an alarm, attacked them and were arrested.

PW 3 Okello Charles testified that the suitland belonged to his father Opio The upirus who also distributed in amongst the three of them in 1994 and the land is 4 acres. He also testified that Atyang came in 2010 and requested for land.

PW 4 Adega John (retired Parish Chief) testified that the suitland was for Aluku John states that the land belongs to the plaintiffs herein the respondents. He also states that he saw Atyang and Opio ploughing the land and he doesn't know if they requested but they started using force.

DW 1 (Atyang Francis) states that he was born on the disputed land situated in Adimi Village. He further states that his father acquired the land through clearing bare ground. The land is approximately four acres and that he started staying on the land in 1994.

During cross examination by PW 1 he stated that he was born in Atinok and its his father that was on the land. During further cross examination by PW2, he stated that he moved from Aminolike to Adimi in 2014.

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DW 2 (Opio Morris) testified that he was born on the suitland which was divided between him and his brother Atyang (DW1). He states there were 6 acres for his late father that he cleared and was using before his death. He doesn't remember when his father died.

He also started using the land with his brother in 1994.

DW4 (Tino Christine) states that there is land which she cleared with her husband but latellr moved to Ogur with the husband. Upon death of the husband, she came back to the land but her sons have refused her to settle. She claims she was given four acres and the sons are using six acres.

I have perused the judgment on record and the magistrate noted with concern the grave inconsistencies in the evidence of the defendants. DW 1 stated that he was born on the disputed land in Adimi but during cross examination he stated that he moved from Aminolike to Adimi in 2014. Dw 2 on the otherhand claims that the acrage was 6 acres and that he and DW1 started using the land in 1994. On the other hand, the plaintiffs' evidence was well corroborated by all the witnesses that testified. They all alluded to the fact that the defendants came to the plaintiffs in 2010 to request for land after which they refused to vacate. They also had a clear understanding of the acreage of the land.

Section 101 of the Evidence Act Cap 6 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

The plaintiffs, herein respondents by their way of evidence proved that the suitland belonged to them. The trial magistrate in his five paged judgment critically analyzed the evidence of both the plaintiffs and defendants and came to a right conclusion that the suitland belongs to the plaintiffs. He cannot be faulted.

I therefore find that the trial magistrate properly evaluated the evidence on record and came to the right conclusion.

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I answer this ground in the negative.

In the final result, there is no merit in the appeal. It is consequently dismissed with costs both in this court and in the lower court.

Dated at Lira this $2$ of $2$ of $2$ 2023

assen

ALEX MACKAY AJIJI

**JUDGE**