Edikat and Another v Atiang (Civil Appeal 22 of 2022) [2024] UGHC 628 (28 June 2024)

Full Case Text

The Republic of Uganda

The High Court of Uganda at Soroti

Civil Appeal No. 0022 of 2022

(Arising from Civil Suit No. 041 of 2018 of Katakwi Chief Magistrates Court)

1. Edikat David 10

<pre>....................................

2. Otim Samson

Versus

Atiang Elizabeth ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

Judgment on Appeal

1. Introduction.

This appeal arises from the judgment and orders of the Chief Magistrates Court of Katakwi at Katakwi delivered on the 19th of December 2022 by H/W Abalo Agnes Oneka Magistrate Grade One.

## 20 2. Background.

Alemukori John the respondent's husband filed civil suit no. 41/2018 against the appellants for recovery of land measuring 1½ acres situated at Ajokopir village, Alogook parish, Katakwi sub-county, Usuk sub-county in Katakwi District, a permanent injunction restraining the defendants, general damages and costs of the suit.

His claim was that he acquired the suit land by way of purchase in 1981 from Acurumo Filbert and since then he had been in quiet possession of the suit land

$\mathsf{S}$

- $\mathsf{S}$ not until 2018 when the appellants entered the suit land and cultivated 11/2 gardens interfering with his quiet possession of the suit land. That at some point around 2004 Acurumo litigated with the Alemukori at Katakwi sub-county whereupon he produced the sale agreement between them and the matter was dismissed in favour of Alemukori. That the appellants with full knowledge that - the land belongs to Alemukori moved ahead and cultivated the suit land which 10 act not only annoyed but aimed at depriving him of his rightful ownership of the same.

Alemukori John passed on in September 2020 and his widow Atlang Elizabeth substituted him in the matter.

- The respondents in their joint WSD denied the above allegations contending that 15 the $2^{\text{nd}}$ appellant acquired 100 acres of land including the said $1\frac{1}{2}$ acres by way of purchase from Yafesi Okolimo in 1981. The appellants further contended that the suit land is half an acre and not one and a half acres as claimed by the respondent. That the 1st appellant is in full occupation of the suit land by way of - cultivation for a period of 20 years having been given the same by his father the 20 2nd appellant. That the respondent first attempted to encroach on the said piece of land in 2012 and the 2nd appellant reported the matter to the LC2 court of Aliakamer parish where Alemukori John was summoned but refused to attend the LC2 court proceedings and continued to trespass on the land in question. - The trial Magistrate having heard the matter entered judgment in favour of the 25 plaintiff now respondent with the following orders; - a) The plaintiff is declared the rightful owner of the suit land located at Guya Guya village, Alogok parish in Katakwi district. - b) An order of vacant possession is issued against the defendants and those claiming through them.

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- c) A permanent injunction is issued restraining the defendants, and their $\mathsf{S}$ assignees/legal representatives or anyone claiming through them from trespassing on the suit land forthwith. - d) General damages of Ug. Shs 4,000,000/= (Four million shillings) awarded to the plaintiff. - e) Costs of the suit awarded to the plaintiff. 10

The appellant dissatisfied with the above judgement and orders appealed to this court on the following grounds;

- The learned trial Magistrate erred in law and fact when she ignored the i. grave inconsistencies in the plaintiff's evidence thereby arriving at a wrong decision. - That the learned trial Magistrate erred in law and fact when she ii. failed/refused to evaluate DEX2 which prejudiced the defendant's case. - That the learned trial Magistrate erred in law and fact when she awarded iii. the plaintiff general damages which were neither pleaded nor proved thereby causing injustice to the appellants. - The trial Magistrate erred in law and fact when she found that the iv. defendants were trespassers despite evidence that the suit land was unoccupied. - The decision of the trial Magistrate has occasioned a grave miscarriage of V. - 25 justice.

## Duty of the 1st appellate court.

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

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own conclusion as was held in Father Nanensio Begumisa and Three Others v. Eric $5$ 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 10 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 15 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.

20 4. Representation.

> The appellants were represented by M/s Engulu & Co. Advocates while the respondent was represented by M/s Legal Aid Project of the ULS. This matter proceeded by way of parties' written submissions and the same have been considered in the determination of this appeal.

- 25 5. Determination. - a) Ground 1.

The learned trial Magistrate erred in law and fact when she ignored the grave inconsistencies in the plaintiff's evidence thereby arriving at a wrong decision.

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- Counsel for the appellants submitted that the respondent's evidence in the lower $\mathsf{S}$ court was full of inconsistencies and contradictions and the same ought to have been rejected as it could not support the respondent's case to the required standard. The sum of counsel's submissions is that there were inconsistencies in the respondent's evidence on the location and size of the suit land, nature of the - dispute over the suit land and the consideration that was paid for the suit land. $10$ That the respondent testified that she had 4 houses on the suit land however the locus visit revealed that that the suit land was vacant and none of the features described by the plaintiff in evidence were visible on the land.

Counsel for the appellants submitted that the above inconsistencies should have led to rejection of the respondent's evidence.

Counsel for the respondent in reply highlighted the respondent's evidence regarding the purchase of the suit land by Alemukori, use of the same and encroachment by the appellants. Counsel added that there were contradictions in the appellants' case regarding the suit land, its features and location.

20 $\mathbf{i}$ . Evidence on record.

The respondent testifying as PW1 stated that the appellants have been her neighbors for 41 years. That her husband Alemukori bought the land from Acurumo Filbert in 1981 at shs. 4000/= and the suit land comprises of 12 gardens and she has the sales agreement. She further stated that she has forgotten the figures in the agreement, it's her husband who bought the suit land. She stated that she had 4 houses one semi-permanent and others grass thatched, there are Itira, Ekwakwa, Ekum and Epeduru trees thereon. The appellants entered her land in 2014 claiming it to be theirs, both her and the appellants are not using the disputed part.

- PW2 Ipurare Charles testified that Alemukori was his brother and the dispute $\mathsf{S}$ between the parties is a land boundary. His brother bought the suit land from Acurumo at shs. 4000/= in 1981. That the appellants encroached on his brother's land by going beyond the boundary in 1989 and his brother reported to LCII Court in a year he does not remember. There are sisal plants separating the appellants' land from his brother's land. - 10

PW3 Bonifasio Okore testified that the suit land was bought by the late Alemukori for 7000/= in a year he doesn't remember and he was present as a witness. Alemukori cultivated the land and built houses on the same.

PW4 Acurumo Filbert testified that the 2nd appellant bought land from his brother Okolimo and for him he sold his land to John Alemukori at shs. 7000/=. The sales 15 agreement between him and Alemukori was admitted in evidence as PEXH1. That the land he sold to Alemukori was three gardens and the respondent is currently using the same. His brother sold half a garden to Otim. During cross-examination he stated that he led the planting of boundary mark between Alemukori and Otim Sam. That if Otim has used more than half a garden he will be in the wrong.

DW1 the 2nd appellant Otim Sam testified that the suit land measures approximately 20 gardens and it belongs to him having bought it from Okolimo Yafesi in 1981 at shs. 4,000/=. That he has been using the land since 1981 through cultivation, construction and has even buried his people (grandmother and children) there. He stated that the conflict is over a garden and it started in 2019 25 but they litigated in 1981. He further stated that on 8th May 2005 he together Alemukori resolved a boundary dispute.

DW2 the 1st appellant Edikat David testified that the land is for his father the 2nd appellant and he has been using the land for over 20 years. That the 2nd appellant bought 25 acres of land from Yafesi Okolimo on 08/04/1981.

DW3 Eliauresio Ogel testified that the suit land is one garden and it is for the 2nd $5$ appellant who bought from Yafesi Okolimo.

DW4 Ochodio Samson testified that the suit land which is half an acre was sold to the 2nd appellant by Okolimo in 1981 and he was present. That the land sold was 80 by 80 meters.

A locus in quo visit was conducted by the trial court on the 24th of November 10 2022, suit land was found to be in Guya Guya village formerly Ajokopir, the respondent described the suit land and the appellants confirmed that it's the same land they have interest on. PW4 Acurumo Filbert confirmed that it was the land he sold to respondent's late husband Alemukori, the 2nd appellant claimed that the same piece was sold to him by Okolimo brother to Acurumo but 15

Acurumo said he was not aware of the same.

PEX1, the sales agreement dated 11/07/1981 indicates that Acurumo Filbert sold his customary land to Alemukori at 7,000/= on Saturday 11th July 1981. This agreement indicates that Alemukori cleared this sum three installments in the

presence of various witnesses. 20

> This land is described to be towards the water logged area but between the following;

- From the old homestead near a tree called Ekwakwa towards or up to the $\dot{I}$ . water logged area. - From the cattle track area starting from a tree called Ecomai up to the ii. 25 boundary with Opirian and Edeet.

During locus PW4 Acurumo identified the suit land as the same he sold to Alemukori and the locus map indicates that the suit land is neighbored to the south by Opirian and the west by the swamp.

The appellants on the other hand tendered in DEX1 a sale agreement dated 8-4-5 1981. This agreement is very brief indicating that Yafesi Okolimo sold land to Samusoni Otim at the cost of 4000/= in the presence of Erenegio Apunyo and Samusoni Onyait.

The respondent to prove ownership of the suit land adduced evidence of four witnesses and PEX1 showing that her late husband Alemukori purchased the suit 10 land from PW4 Acurumo Filbert in 1981. The agreement as noted above clearly shows that Alemukori bought customary land from Acurumo and paid for same in three instalments, PW4 Acurumo confirmed in his testimony and at locus that he sold the land to the late Alemukori.

The appellants on the other hand testified that the suit land was sold to the 2nd 15 appellant by Okolimo Yafesi the brother to Acurumo. In support of this they tendered in DEX1. Unlike the respondent the appellants never led the testimony of any witnesses to this transaction, PW4 Acurumo brother to Okolimo in his testimony stated that his brother sold half a garden to the 2nd appellant. Acurumo

stated that he was not present during the transaction but he was told by his 20 young brother Samson Onyait. Apart from this, there is no clear description of what land was sold to the 2nd appellant by Okolimo and DEX1 is insufficient in this regard as it does not describe location of the suit land.

The trial magistrate noted in her judgement after analysing PEX1 and DEX1 that the former had all the features of a transactional document amongst which are 25 the parties to the transaction, the description of the land, witnesses to the transaction and signatures of the parties while latter did not describe the land sold, the parties to the transaction and the witnesses never signed the said document and none of them testified in court. She further noted that given that both transactions are stated to have happened $\overline{5}$ in 1981, PEX1 looked old and part of it was torn while DEX1 did not stand the taste of time considering the period it is stated to have been written in.

I agree with the above observations of the trial magistrate and after having considered the evidence on record, I find that the respondent sufficiently proved

that her late husband bought the suit land in 1981, Acurumo from whom he 10 bought the land testified as PW4 and tendered the sales agreement which clearly described the suit land and further confirmed during locus that the suit land was sold to the respondent's husband.

The appellants on the other hand failed to adduce sufficient evidence to prove that the 2nd appellant purchased the suit land in 1981 from Okolimo, DEX1 was 15 of no evidential value in the determination of this matter.

Counsel for the appellant submitted that the respondent contradicted the location of the suit land, with the pleadings stating that it is in Ajokopir village yet in her testimony she stated that it was in Guyaguya village.

I find that this is a minor contradiction which is explained by the locus in quo 20 proceedings, as these indicate that the location of the suit land is Guyaguya village formerly Ajokopir.

Counsel also noted another contradiction on the price at which the late Alemukori bought the suit land, that she testified that the land was bought at

4000/= while PW3 stated that the land was bought at 7000/=. 25

Once again I do not find this a major contradiction for the simple reason that the respondent was not present during the transaction which was entered by her late husband and did not know much about the suit land.

The only reason she testified in court was because she substituted him upon his $\mathsf{S}$ demise and in doing so tendered in the sale agreement which sufficiently proved the transaction.

Having analysed the evidence on record I find that the respondent proved her claimed on a balance of probabilities and the trial magistrate rightly found her as the owner of the suit land. This ground accordingly fails.

b) Ground 2.

## That the learned trial Magistrate erred in law and fact when she failed/refused to evaluate DEX2 which prejudiced the defendant's case.

Counsel for the appellants submitted that DEX2 was a very important document

in which the appellants settled a boundary dispute over the suit land with the late 15 Alemukori. That this document corroborates PW2's testimony that the dispute is over a boundary and had the trial magistrate considered it the judgement would have turned out different.

In reply counsel for the respondent stated that during the locus visit court observed that none of the features were visible and the appellants did not even 20 show the boundary that was planted in 2005.

DEX2 is document dated 08-May-2005 with the reference as settlement of boundary between Alemukori John, Otim Sam and Ilemukorit Stephen. The document indicates that the dispute was settled in presence of neighbours and they had wrangles on the side of Otim and Ilemukorit Stephen.

The respondent in her testimony stated that the appellants left the agreed boundary and entered her land.

This document does not clearly describe who exactly had encroached on the other's land and even if it had, it does not show the location of the land and no

evidence was given whether in court or at locus regarding the boundary agreed $\mathsf{S}$ upon in 2005 and the current dispute.

There is thus no clear connection between DEX2 and the current dispute, if the parties wanted court to rely on the same they should have led definite evidence on the boundary set in 2005, its location or features and if the same related to

the current suit who violated the agreement and what manner. 10

Without these specifics the trial court would have been misdirected if it relied on DEX2 to resolve the dispute between the parties. This document was therefore of no evidential value in the determination of this matter and the trial magistrate rightfully ignored it in her analysis. This ground accordingly fails.

15 c) Ground 3.

## That the learned trial Magistrate erred in law and fact when she awarded the plaintiff general damages which were neither pleaded nor proved thereby casing injustice to the appellants.

Counsel for the appellants submitted that while the respondent pleaded general damages she did not lead any evidence to support her claim. That the award of 20 general damages is guided by the principle of "restitution in integrum" and the award of 4,000,000/= to the respondent was not justified.

Counsel for the respondent in reply submitted that the evidence on record shows that the appellants were aware of the respondent's interests on the suit land and

interfered with the same. 25

> That victims of wrong are entitled to compensation under Article 126 (2) (c) of the Constitution.

That the trial Magistrate rightfully and judiciously exercised her discretion when $\overline{5}$ she awarded general damages to the respondent and there is no need to interfere with the same.

In this instance the appellants who were neighbours to the respondent and her late husband and were well aware of their interest in the suit land, entered upon their land and forcefully started cultivating the same.

This resulted in a court action and an injunction on the land whereby the respondent was stopped from using the suit land till the suit was concluded in 2022. This kind of inconvenience which was aimed at depriving the respondent of her land cannot be ignored by this court.

The respondent and her late husband were deprived of the use of their land in 15 the pendency of the suit and so I would find that the award of general damages Shs. 4,000,000/= justified in this instance and such I will not interfere with the trial court's discretion in that respect. This ground accordingly fails.

d) Ground 4.

## The trial Magistrate erred in law and fact when she found that the defendants were 20 trespassers despite evidence that the suit land was unoccupied.

Counsel for the appellants submitted that the locus proceedings do not indicate any occupation of the suit land by the appellants and the trial magistrate actually indicated that none of the features described by the parties were visible instead it was a bushy land with thorny trees and other species.

Counsel added that the judgment indicates that the there is no activity and as such no trespassers, how then did the trial court conclude that the appellants were trespassers on the land which has no activity on it.

- The late Alemukori in his pleadings stated that since he purchased the suit land $\mathsf{S}$ in 1981 he had quietly possessed the same till 2018 when the appellants entered the suit land and cultivated 1½ gardens thereby interfering with is quiet possession. - PW1, the respondent and widow of the late Alemukori testified that the appellants trespassed on her land in 2014 claiming it to be theirs whereas not. $10$ During cross-examination by the 1st appellant she stated that she did not how long the father the 2nd appellant had cultivated her land. She further stated that it was the 2nd appellant who cut the *Itira* tree and forcefully cultivated the suit land. - The 1st appellant in his testimony stated that the respondent sued him over the 15 land he had ploughed but currently none of the parties are using the suit land due to the court injunction issued by court in 2020.

Trespass to land occurs when a person directly enters upon another's land without permission and remains upon the land, places or projects any object

upon the land. The Supreme Court in Justine E. M. N. Lutaaya vs Sterling Civil 20 Engineering Co. SCCA No.11 of 2002 held that trespass to land occurs

> "when a person makes an unauthorized entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land".

The Court further in that case added that the tort is committed not against the 25 land, but against person who is in actual or constructive possession of the land.

The Court of Appeal in Sheikh Muhammed Lubowa versus Kitara Enterprises Ltd CA No. 4 of 1987 observed;

- "... in order to prove the alleged trespass, it was incumbent on the appellant to prove that the disputed land indeed belonged to him, that the respondent had entered upon that land and that that entry was unlawful in that it was made without his permission or that the respondent had no claim or right or interest in the land." - In this instance the respondent on a balance of probabilities proved that the suit 10 land was bought by her late husband Alemukori. She also testified without contradiction that the appellants entered on the same in total disregard of her interest thereon.

The appellants do not dispute entering upon the suit land, the only dispute was the capacity in which they entered the same and having found that they had no 15 interest thereon any prior entry on the suit land by way of cultivation amounted to trespass.

The fact that the locus visit showed the land to be unoccupied does not change the fact that the appellants had earlier entered on and cultivated the same without having an interest thereon.

This so because by the $1^{st}$ appellant's testimony, the only reason they were not found to be using the land during locus was because of the existence of a court order of injunction issued in 2020 and by implication, it would mean that had the trial court not issued the said temporary injunction the appellant would have been found to be in occupation of the suit land during the locus visit.

Invariably and for the reasons given above, I would find that the trial magistrate was right to hold the appellants as trespassers on the suit land as prior to the court order of injunction the appellants had actually trespassed on the suit land by cultivating it forcefully. This ground accordingly fails.

$\mathsf{S}$

## e) Ground 5.

$\mathsf{S}$

The decision of the trial Magistrate has occasioned a grave miscarriage of justice. Having determined grounds 1 to 4 in the negative this ground subsequently fails.

6. Conclusion.

This appeal fails on all rounds and thus lacks merit. It is accordingly dismissed with costs to the respondent. The judgment and orders of the lower court are 10 accordingly upheld.

7. Orders.

- a) This appeal lacks merits. - b) It is fails on all grounds. - c) It is dismissed accordingly. - d) The judgment and orders of the lowers trial court upheld. - e) The costs of this appeal and in the lower trial court awarded to the respondent.

I so order.

$25$

Hon. Justice Dr Henry Peter Adonyo

Judge

28th June 2024