Azinya v Vuzi (Civil Appeal 27 of 2021) [2024] UGHC 770 (22 August 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT ARUA

# CIVIL APPEAL NO. 0027 OF 2021

# (ARISING FROM CHIEF MAGISTRATE COURT OF MOYO AT ADJUMANI)

# (ARISING OUT OF CIVIL SUIT NO. 25 OF 2013)

AZINYA BENARD .................................... 10

#### **VERSUS**

VUZI SIOMON ................................... BEFORE HON. JUSTICE COLLINS ACELLAM

### $15^{\degree}$

$25<sup>'</sup>$

#### **JUDGMENT**

#### **Introduction**

This is an Appeal against the decision of Her Worship Nantaawo Agnes Shelagh the Magistrate Grade 1 of Adjumani vide Civil Suit No. 25 of 2013 dated 13<sup>th</sup> of November 2020 wherein she entered judgement against the Appellant on terms that; the Respondent is the rightful owner of the suit land and is entitled to vacant possession. He also awarded the Respondent costs and

General damages to a tune of 2,000,000/= (Two million Ugandan shillings only) of the suit.

The Appellant being dissatisfied with this judgement, appealed to this court seeking that the Judgement and Orders of the lower Court in Civil Suit No. 25 of 2013 be set aside, an order that the Appellant is the rightful owner of the suit land and an order that the Appellant be awarded both costs of the Appeal and that of the lower court.

Between 2013 to 2015 the Parties underwent mediation, consented and the Appellant withdrew the case, however the respondent applied to review the consent and on 15th December 2016, the same was set aside and the matter was fixed for hearing. Another Magistrate declared all the previous consents and decree to be non existent since there was no consent judgment on file and

thus stated that the ruling of review was made in error and thus decided to hear the suit denovo 30 under Civil Suit No. 26/2016.

#### **Background**

In the Lower Court, both parties were self represented. The Appellant brought a suit against the $\overline{a}$ Respondent for Vacant possession of the Suit land, permanent injunction and cost of the suit 35 and declaration that the Appellant is the rightful of the Suit land located in Pakondo Anzoo Village, Palemo Parish, Adropi Sub- County, Adjumani District. In the Plaint, the Appellant averred that the suit land belonged to Juakino Odori of Pakondo Anzoo Village who was the grandfather to the Appellant. That when his grandfather died his mother inherited the suit land. That the Respondent is his neighbour and that he was aware of the boundaries. That the 40

$\mathcal{L} \mathcal{L}$

$\mathsf{S}$

$\mathcal{L}^{\mathcal{A}}$

- Appellant settled on the suit land and has been using it for farming since 1982. That when the $\mathsf{S}$ Respondent started encroaching on the suit land, the elders of the village were informed but he continued trespassing on to the suit land. The Respondent on the other hand in his Written Statement of Defence contended that the suit land is their customary land on which his father Mzee Simone Koroko Ette settled since 1947 and on which he was born in 1949 and that Juakino - Odori was just a squatter. That when Juakino died in mid seventies, he left an heir the late Albino $10.$ Drani who survived with some children who are currently staying with their Uncles at Ogo;o in Arinyapi Sub - County and that Anyaja the son of Drani could be the rightful heir of Juakino Odori not the Appellant. The Respondent further claims that he and the Appellant neighbours and the piece of land on which Juakino built was offered by his father. That he is very much - aware of the boundaries of their customary land. That the Appellant only came to settle on the 15 suit land after the death of his grand father in 1982 and that by then the Respondent had already had proper settlement on the suit land. That the claim that he is encroacher and trespasser are not true and logical. He then prayed that court makes judgement in his favour for retention of their customary land, permanent eviction of the Appellant from their customary land and

nullification of the cost of the suit. 20

$\mathcal{C}^{\mathcal{A}}$

- At the trial, the following issues were set down for determination; - 1. Who is the rightful owner of the suit land? - 2. What remedies are available to parties?

**NOTE:** During the fresh hearing, the Plaintiff (Azinya Benard) was referred to as the Defendant and his witnesses were referred to as DW... instead of PW... and the Defendant (Vuzi Simon) 25 was referred to as the Plaintiff and his witnesses were referred to as PW... instead of DW...

#### The Appellant's evidence in the court below

In the lower court, the Appellant relied on 4 witnesses including himself as DW1. Azinya Bernard, DW1 in his testimony stated that the Respondent is his neighbor. He testified that his mother took him to Pakondo Anzo village and that he grew up from the suit land. That the suit 30 land belonged to his grandfather Joachim Odori and then his mother Tereza Kodia inherited it from the grandfather. He also stated that the suit land is 50-60 acres and that he is the one utilizing the land for cultivation. That the Respondent had never used the suit land. That he does not know why the Respondent is claiming his land yet there is a clear boundary between

- their land. He then stated that he is not related to the Respondent. He further stated that, when 35 he first instituted the matter in 2013 against the Respondent, they agreed in mediation, but the Respondent started building on part of the Appellant's land he filed this suit. He then stated that the Respondent has continued cultivating on the suit land and even destroyed the Appellant's heap of yams. DW2, Lwaju Keli Mawa, testified that he knows the Appellant as a - parish mate and the Respondent because of the land dispute, that the suit land is about 20 80 40 Acres and that the land was left to him by his late grandfather. That him and the Respondent - are all using the land for cultivation. That on 14<sup>th</sup> July 2012, he got a letter from the elders about the dispute calling him for the meeting on 15<sup>th</sup> July 2012 to resolve the meeting. He then stated that the elders resolved this dispute in favor of the Appellant and that the Respondent planted - cassava on the suit land. DW3, Mondia Gilbert, testified that he knows both parties as village 45 mates and there in court because of a land dispute of 40 acres and that the suit land belongs to

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- the Appellant who inherited it from maternal Uncle Juakiro Odori in 1982. She then testified 5 that the Respondent was using the land when Azinya (Appellant) had gone for work. That Vuzi is using the land for cultivation. That the Appellant came to ask the Respondent why he was utilizing the Appellant's land, and the Respondent had no answer which sparked off the dispute. DW4, Ebema Onzia, that he knows both parties that the Respondent's grandfather was his good - 10 friend, and the Appellant is his nephew and that the suit land is measuring approximately 80 acres and that she neighbors the suit land to the east. That the suit land belongs to the Appellant, and he has been using it in cultivation and that the Respondent trespassed on the suit land and started digging a pit latrine. That the Respondent stays on the suit land, Azinya's grandfather gave 3 acres to the Respondent's grandfather.

# The Respondent's evidence in the lower Court.

In the lower Court, the Respondent presented 4 witnesses including himself as PW2 to support his case. PW1, Ajio Carolina, testified that she is a sister to the Respondent and the Appellant is her sister's son and she knows the dispute between the two. She stated that the Appellant has a grudge with his uncle (Respondent). She then testified that a meeting was called to settle the 20 dispute, but the Appellant never turned up. That the suit land belongs to the Respondent and that it was the Respondent's father that called the Appellant's grandfather to come and settle with him on the same land. She also stated Benard is staying on the land which the Respondent's father gave to the Appellant's grandfather. That the Respondent is the one occupying the suit

- land. PW2 Vuzi Simon the Respondent, testified that he knows the Appellant as his nephew. $25.$ That disputed land is approximately 40 hectares. That the suit land is their family land which was left to him by Simon Koreko who was his biological father. That on the suit land, the Appellant is his neighbor on the western side. That he uses the land for cultivation part of it for grazing. That in 2012, the appellant started trespassing on the Respondent's land and that the - 30 Respondent reported the Appellant to the elders. PW2 testified that the Appellant never stopped trespassing he continued even in 2013. The Respondent testified that he is settled on the disputed land, and he is not contesting the 36 acres but what is in dispute is the 4 acres. PW3, Koma Vicho testified that the two parties were in Court because the Appellant wanted to grab the Respondent's land measuring about $1\frac{1}{2}$ miles which the Respondent inherited from his - 35 father. That the Respondent is the one using the land. PW4, Kalega Andrew, testified that the suit land measures 15 acres and that currently the land belongs to the Respondent. And he is the one currently using the suit land for cultivation and that to date it is the Appellant who is cultivating on the land after trespassing on the Respondent's land.

### Judgement of the Court below

In her judgement dated 13<sup>th</sup> November 2020, H/W Nantaawo Agnes Shelagh found that the 40 suit land belonged to the Respondent (Vuzi Simon). She then ordered Azinya Benard to vacate the suit land or be evicted therefrom, she issued a permanent injunction restraining the Appellant and his agents from further trespass on the suit land awarded damages of UGX $2,000,000/$ = and costs of the suit.

AMA

#### Duty of the 1<sup>st</sup> Appellant Court

$\mathsf{S}$ The duty of the 1<sup>st</sup> Appellate Court was well stated by the Supreme Court of Uganda in its land landmark decision of Kifamutwe Henry vs Uganda, SC, (Cr) Appeal No. of 2007 where it held that;

> "The appellate court has duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate court must make up its own mind not disregarding the judgement 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 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 Nankya vs Nsibambi (1980) HCB 81. In considering this appeal, the above legal provisions are taken into account.

#### Representation and hearing

$20$ The Appellant was represented by *M/s Mwina*, *Wananda & Co. Advocates* while the Respondent was represented by *M/s Ederu & Gama Advocates and Solicitors*.

Counsel for both parties filed their written submissions as directed by court. I have carefully read, considered the pleadings and advised myself on the evidence and submissions of both parties.

#### 25 The grounds of appeal:

The Appellant being dissatisfied with the decision of the lower Court filed an Appeal on grounds that:

- 1. The trial Magistrate erred in law when she failed to properly evaluate the whole evidence on record thereby arriving at a wrong conclusion. - 2. The learned Trial Magistrate erred in law and in fact when she disregarded the Appellant's evidence that he inherited the suit land from his mother who inherited it from his grandfather and has been in possession since. - 3. The Learned Trial Magistrate erred in law and fact when she held that despite the above act, the suit land belongs to the Respondent. - 4. The Learned Trial Magistrate erred in law and fact when she held that the appellant was a trespasser on the suit land. - 5. The Learned Trial Magistrate erred in law and fact when she disregarded the Appellant's evidence that him and the Respondent are neighbors with clear boundary separating their lands. - 6. The learned Trial Magistrate erred in law and fact when she awarded the Respondent unjustified damages in the form of general damages.

#### Arguments of Counsel for the Appellant.

Counsel submitted on issue 2, 3, and 4 jointly into heads of argument that is; error in law and how the Trial Magistrate erred in fact. In respect to erring in law, counsel in his written submissions submitted that trespass to land occurs when a person directly enters upon another's land and that trespass is supposed to solve possessory and not ownership interests in land. That in the instant case the Appellant is the one who instituted the suit of trespass against the

$\Delta$

$\mathsf{S}$ Respondent for invading his territory to which he was in current possession and that the Appellant adduced evidence and presented witnesses to prove the same. In respect to error in fact, Counsel for the Appellant submitted that, no evidence was led by the Respondent to prove that he held possession of the suit land and neither did any of his witnesses but rather confirmed that the Appellant is in possession of the suit land. Counsel therefore submitted that the appellant has been in possession with his people on the suit land for so long without any 10 disturbance and that the only interference was that the Respondent used court to extend his boundaries to the Appellant's land.

Counsel for the Appellant in his written submissions decided to handle ground 1 and 5 together. And briefly in respect to those grounds Counsel submitted that the parties had a consent which

- in his opinion was adopted by court as a consent judgement and that court can only intervene 15 where the consent was influenced by illegalities, fraud, collision, or mistake and that none of these were present in this matter. Counsel further submitted that in the agreement dated 8<sup>th</sup> of October 2013 both parties agreed on the demarcations and boundaries of the suit land, both parties agreed and signed and a mediation report dated 17<sup>th</sup> of October 2013 was presented to - court showing clear demarcations of the boundaries of the suit land and as a result the suit was 20 withdrawn. Counsel further submitted that from the evidence of both parties it is clear that the issue between the Parties is in relation to demarcations/ boundaries and that had the Trial Magistrate properly evaluated the whole evidence on record as shown above, she would not have arrived at a wrong conclusion. In respect to ground 6, counsel for the Appellant submitted that - it is settled law that general damages re compensatory in nature and are meant to make good any $25$ non-monetary loss, inconvenience or injury suffered by a claimant as a result of the acts of the other party to a suit and that they are discretional and that in this case there was no evidence led by the Respondent to show that there was any non-monetary loss suffered by him as a result of the Appellant's actions that would justify the grant of general damages to the tune of UGX 2 - 30 million. Counsel further averred that it was actually the Appellant that suffered loss and inconvenience as a result of the Respondent's digging of holes, destroying his crops hence the institution of the suit. Counsel then prayed that the suit be allowed.

### Arguments of the Respondent's Counsel

In respect to ground 1, Counsel submitted that it is too general to pass the test of a ground of 35 an appeal and prayed that same be struck out and cited the case of *Attorney General Vs Florence* **Baliraine** to fortify his submission.

Counsel then responded to grounds 2 and 4 jointly, relying on different authorities, Counsel submitted that in the instant case it is not in dispute that the Appellant claims customary ownership of the suit land by inheritance, but the Appellant failed to prove his ownership of the

suit land. Counsel further submitted that the Appellant's evidence is contradictory and 40 inconsistent. Counsel for the Respondent also contended that the Appellant left the land in 1986 to join the army and as such was not in possession of the suit land so he cannot claim trespass and that therefore was only left to claim for recovery of possession of the suit land which is time barred. Counsel then submitted that ground 5 of the amended Memorandum of Appeal

45 is misleading and should be equally struck out and that even if the parties were to be neighbors,

the available evidence is that both had separate pieces of land whose boundaries the Appellant $\mathsf{S}$ overstepped and still would not be the lawful owner of the suit land but a trespasser.

In respect to ground 6, Counsel submitted that the Respondent suffered natural and probable consequences as a result of this case from 2013 to 2020 when the judgement from the lower court was made for which the Respondent was entitled to general damages. Counsel then prayed that this court find that this appeal has no merit.

### Determination of Court

The duty of this court as a first Appellate Court is to evaluate the evidence on record, thus conducting a retrial and arrive at its own conclusion. See Kifamutwe Henry vs Uganda, SC, (Cr) Appeal No. of 2007

- From the outset I must observe that the proceedings and part of the record of appeal was so badly 15 organized that it is difficult to follow. The proceedings keep referring to the Plaintiff as the defendant and the defendant as the Plaintiff which creates confusion and makes the story not come out properly. It is difficult to tell whether that is what the Trial Magistrate recorded or the whole confusion was a result of bad typing. - Furthermore, the court visited locus in quo on 28<sup>th</sup> October 2016 and compiled a record of what 20 transpired there at. However, the records on the locus visit were not as exhaustive to give this court a clear picture of what the suit land looks like. Both parties were self-represented and needed court's guidance while at the suit land, but the lower court did not seem to ask for any clarifications especially on the true size of the suit land since both parties and their witnesses had - contradicting estimates during the trial. The record of the locus in quo does not even show if 25 the witnesses were reminded that they were on oath or that they were sworn in and if any questions were indeed asked by court concerning what the court ultimately observed. It is just showing random statements by the parties. And during the visit court seems not have made any observations backed by the evidence given by the witnesses and if it was compiled at all then it is - missing on record. The record also doesn't have a sketch of the suit land made during the locus 30 in quo which is necessary to give this court a view of what it actually looks like. See procedure of locus in quo under Order 18 Rule 14 of the Civil Procedure Rules.

Additionally, there seems to be a decree from a consent that is claimed to have been made by the parties but the same was not endorsed by this court as a consent judgement. So even though counsel for the Appellant keeps referring to it, it is hard for this court to consider it.

The confusion stretches even up to the trial magistrate's judgement when she keeps referring to the parties as counter plaintiff and counter defendant throughout her judgement without actually according an explanation to the same which makes it hard for this court to give a fair scrutiny of the evidence.

It would therefore be very dangerous to base any judgement on this type of record. It leaves court 40 to speculate what the magistrate was trying to say or which party the trial magistrate was indeed referring to. This would eventually be a miscarriage of justice. It would therefore be hard for this court to rely on such a record in order to form its own mind on the case.

In my opinion, this occasioned a miscarriage of justice on the Appellant due to the errors of the 5 judicial officer who presided over the trials and the numerous contradictions and inconsistencies in both Parties' evidence. This appeal is therefore allowed and a retrial necessary.

In the case of Otto Francis & 7 others vs Orach Owiny (Civil Appeal No.47 of 2017 [2019) UGHC 76 Justice Stephen Mubiru stated that an order for retrial is an exceptional measure to

- which resort necessarily be limited. A trial de novo is usually ordered by an appellate court when 10 the original trial fails to make a determination in a manner dictated by law. A retrial should not be ordered unless the following conditions are met; that the original trial was null or defective; that the interests of justice would require it, that the witness who had testified were readily available to do so again should the retrial be ordered, and no injustice will be occasioned to the - other party if a retrial is ordered. That these conditions are conjunctive and not disjunctive. The 15 context of each retrial is unique.

I find that in the instant case, there is need to correct significant errors that occurred during the trial as evidenced in my analysis above and this can only be cured by a retrial.

I therefore set aside the whole trial Magistrate's judgement and decree and order a retrial before another Magistrate and both parties to meet their costs in the lower court and in this court. 20

I so Order

$22$ day of Signed, dated and delivered this ...... $..., 2024$

**Collins Acellam**

**JUDGE**