Egeu and Another v Otukei and 2 Others (Civil Appeal 41 of 2018) [2024] UGHC 523 (2 May 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 41 of 2018

(Arising from Civil Suit No. 019 of 2017 of the Chief Magistrate's Court of Katakwi at

Amuria)

- 1. Egeu Joseph - 2. Kedi Joseph

Versus

......................................

**<u>....................................**</u>

- Otukei Martin - 2. Okwi William Francis - 3. Igelat Raphael

Before: Hon. Justice Dr Henry Peter Adonyo

Judgement

(An Appeal against the Judgment and Orders in Civil Suit No. 19 of 2017 of The Chief Magistrate's Court of Katakwi at Amuria by HW Awacnedi Freddie -Magistrate Grade One delivered on 14th 20 September 2018)

# 1. Introduction:

The respondents (then plaintiffs) sued the appellants Okolimo Wilbrod and Akello Janet Akedo (who have since died and were replaced by the appellants) for recovery of the suit land measuring 25 gardens at Abule village, Katine Parish, Abarilela sub-

$5$

county, contending that the suit land is customary land which the $\mathsf{S}$ respondents/plaintiffs inherited from their late father. Ocung Paul.

2. The respondents /then plaintiffs' claim:

The respondents averred that 5 out of the 25 gardens of the suit land was obtained from Opio Honorat through inheritance and the 20 gardens the respondents' father got from Gerepasio Elamu in consideration for the refund of dowry paid after Gerepasio Elamu's daughter called Putum Kelementina who divorced her husband.

The respondents contended that Putum Kelementina was a sister to the late Akello Janet Akido the $2^{nd}$ defendant (appellant) in this suit.

That the late Opio Honorat and late Elamu Gerepasio were biological brothers, and the respondents' father is a cousin to the late Opio Honorat and late Elamu 15 Gerepasio.

That by the time the respondents' father refunded the dowry of Elamu's daughter, Elamu Gerepasio had already died, and it was upon Opio's request that the respondents' father paid eight cows as dowry in consideration for the 20 acres given to him.

That the respondents occupied the land without any problems until the Karamojong insurgency in the late 1980s, when they ran away and left it vacant.

That during the insurgency, the first appellant's father, the late Ocung Juventine, came and settled on an undisputed small portion allocated to him by Opio Honorat.

In 2012, when peace returned, the respondents came back only to find 5 acres of $\mathsf{S}$ their father's inherited land from Opio and the 8 acres their father had allowed the widow of the late Elamu to stay on occupied by the first appellant, the late Okolimo Wilbrod.

Upon inquiry, the first appellant/then defendant claimed to have bought the land from the second defendant, the late Akello Janet Akedo. The respondents' efforts 10 to let the first defendant, the late Okolimo Wilbrod, leave/vacate the land peacefully were in vain.

In early 2017, the second defendant, the late Akello Janet Akedo, claimed more than 12 gardens from the portion the respondents' father acquired from Elamu Gerepasio.

The respondents, therefore, sued to recover the 13 gardens from the 1st defendant, the late Okolimo Wilbrod, that he alleged to have bought from the 2nd defendant, the late Akello, and 12 gardens from the 2nd defendant, given to her by ICU, all totalling 25 gardens

- The late Ocung Paul got the land through his two cousin brothers Opio Honorat and 20 Gerepasio Elamu. - 3. The appellants' / then defendants' claim:

The first defendant contended that he purchased the suit land and was the rightful owner of part of it, measuring 5 acres. He tendered seven agreements of sale in court. In the sixth agreement, dated 17/9/1998, Oraat James Moses sold 5 acres of

land to Ocung Yuventino for one cow, five goats, and shs. $105,000/=$ .

- The $2<sup>nd</sup>$ defendant contended the land she is using belonged to her parents, $\mathsf{S}$ Egerepasio Elamu (her late father) and Amelenia Arootin. That her father had another wife called Icepu Apulmera and her father had divided his land between the two women, each cultivating her portion. - The 2<sup>nd</sup> defendant/appellant contended that Amelenia produced three girls, and Icepu had only one child, a daughter. She averred that her late father did not 10 produce any boy child with the two wives, except he produced one with his brother's wife.

The 2<sup>nd</sup> defendant contended that the plaintiffs came to settle on the suit land due to Karamojong insurgency and when peace returned, they went back save for one of their brothers Okur Christopher who remained behind as a cattle keeper tending the cows of the plaintiffs. The $2^{nd}$ defendant averred that the land sold to the $1^{st}$ defendant was part of her mother's portion, and the one given to the plaintiff's father was from that of her stepmother.

At the trial in the lower court, three issues formed the basis of the trial magistrate's determination of the dispute: whether the suit land belongs to the 20 plaintiffs/respondents, whether the defendants/now appellants are trespassers on the suit land, and the remedies available to the parties.

The trial Magistrate received evidence from the parties and even visited the locus in quo.

The trial magistrate determined issue one in the affirmative by finding that on a 25 balance of probabilities, the plaintiffs had proved to the court that the suit land belonged to them save for the 8 acres that their late father, Ocung Paul, gave to the

- two widows of Elamu Egerepasio. He also found that the 2<sup>nd</sup> defendant cultivated $\mathsf{S}$ the land and planted food crops, and during the locus visit, the court saw several gardens with sorghum and maize plants growing. Thus, the defendants' acts amounted to trespass to land belonging to the plaintiffs. - The trial magistrate then entered judgment for the plaintiffs with the orders that: the suit land measuring 20 acres, (i.e. the 20 acres trespassed on by the 2<sup>nd</sup> 10 defendant and the 5 acres trespassed on by the 1<sup>st</sup> defendant) is declared to be for the plaintiffs the 8 acres of land given to the two widows of the late Elamu Egerepasio is declared to be for the 2<sup>nd</sup> defendant and her sister, Putan Kelementina, in equal shares, a permanent injunction issued to restrain the defendants and their agents from interfering with the plaintiffs' ownership of the 15 suit land, the defendants will give vacant possession of the suit land to the plaintiffs and each party to bear his/her own costs.

The lower court entered judgment for the plaintiffs with no order as to costs, and the appellants/then defendants have now appealed.

#### 4. Grounds of Appeal: 20

The appellants raised four grounds of appeal as follows:

- a) The learned trial Magistrate erred in law and fact when he ignored the issues framed during the scheduling and left them unresolved. - b) The learned trial Magistrate erred in law and fact when he failed to judiciously evaluate the evidence, thereby arriving at a wrong conclusion.

- c) The learned trial Magistrate erred in law and fact when he held that the respondents were trespassers. - d) The decision of the trial Magistrate has occasioned a grave miscarriage of justice.

The appellant prayed as follows, that,

- a) The appeal be allowed. 10 - b) The judgment and orders of the lower court be set aside. - c) The suit land be decreed to the appellants. - d) The costs of this appeal and in the lower court be granted to the appellants.

#### 5. Duty of the first appellate court 15

This is the first appeal from the learned magistrate's decision. The duty of the first appellate court is to scrutinise and re-evaluate all the evidence on record to arrive at a fair and just decision.

This duty was well laid down in the case of Kifamunte Henry vs Uganda SCCA No. 10/1997, where it was pointed out. 20

> "The first appellate court has a duty to review the evidence of the case and to reconsider the material 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 the case Father Nanensio Begumisa and three others vs Eric Tiberaga SCCA 17 of 25 **2000; [2004] KALR 236, the obligation of a first appellate court was pointed as being;**

$\mathsf{S}$

"...under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion."

See also: Baguma Fred vs Uganda SCCA No. 7 of 2004.

6. Power of the Appellate Court:

Section 80 of the Civil Procedure Act, Cap 71, grants the High Court appellate powers 10 to determine a case to its finality. The resolving of this appeal has involved ample consideration of the above legal stated position as to the duty and legal obligation of this Honourable Court as a first appellate court.

## 7. Representation:

M/s Engulu & Co. Advocates represented the appellants, while M/s Erabu & 15 Company Advocates represented the respondents. The parties filed their submissions, and the court is grateful. The submissions have been incorporated in the resolution of this appeal.

This being a civil suit/appeal, it is the appellants' duty to prove their case on a balance of probabilities as is provided for by Sections 101 and 102 of the Evidence 20 Act, Cap 6 and espoused in Nsubuga vs Kawuma [1978] HCB 307.

Also, in the case of Erumiya Ebyetu v. Gusberito [1985] HCB 64, it was held that "where the plaintiff leaves his case in equilibrium, the court is not entitled to incline the balance in his favour. The plaintiff must prove his case against the defendant to the required standard."

$\mathsf{S}$

### 8. Determination of the Appeal:

The appellant's counsel submitted on the grounds in their numerical order, which was followed by the respondents' counsel. I find no reason to depart from the same procedure and as such I have accordingly adopted the same order in determining this appeal.

### a) The learned trial Magistrate erred in law and fact when he ignored the issues 10 *framed during the scheduling and left them unresolved:*

The appellants' counsel, in addition to the ground one, as formulated, contended that the trial Magistrate did not resolve the issues framed at scheduling without any valid reason and went ahead to frame new issues which the parties did not have an opportunity to address.

To counsel, the trial magistrate's error rendered him unable to properly determine the rights of the parties, especially the 1<sup>st</sup> defendant who had claimed to have purchased part of the suit land.

The appellants' counsel contended that whereas the court has the power to amend and frame additional issues under Order 15 rule 5 of the Civil Procedure Rules, the 20 parties needed to be given the opportunity to be heard on the new issues.

In making this assertion, Counsel for the appellants cited the persuasive case of Said Mohmed Said Versus Muhusin Amiri & Muharami Juma Civil Appeal No. 110 of 2020, where the learned justices of the Court of Appeal of Tanzania ordered for revision of a decision of the High Court for reasons that the judge in the High Court framed

$\mathsf{S}$

a new issue during judgment and proceeded to unilaterally resolve it without $\mathsf{S}$ hearing the parties.

To counsel, by the trial magistrate's framing of new issues during his judgment, that act denied the parties a right to be heard on the new issues and automatically caused a miscarriage of justice.

On the other hand, the respondents' counsel contended that 0.15 Rule 1(5) Civil 10 <u>Procedure Rules</u> oblige the trial magistrate to frame issues.

The respondents' counsel asserted that the trial magistrate is allowed to amend or strike out the framed issues at any time before passing its decree, which is a free exercise and/or duty of the trial court so long as the issues stem from the pleadings or evidence and bring out the points in controversy.

To that end, the respondents' counsel contended that it was not fatal for the trial magistrate to frame his own issues or abandon the issues framed at the scheduling of the matter because the court was able to ascertain the rights of parties from the evidence on record before court respectively and that the non-consideration of the $1<sup>st</sup>$ issues framed by the $1<sup>st</sup>$ trial magistrate was not fatal at all.

From the record of the proceedings of the lower trial court, it can be garnered that the matter before the trial court was scheduled on 12<sup>th</sup> January 2018 and five issues were formulated for determination and these were:

- whether the first defendant inherited part of the suit land from his father, $i$ . - whether the first defendant is a bonified purchaser and, if so, whether it 25 ii. formed part of the suit land,

- whether the suit land was the land the plaintiff's father acquired from D2's iii. $\mathsf{S}$ father - *whether D2 has any interest in the suit land and;* iv. - what remedies are available. V.

From the judgment of the trial magistrate, three issues framed for the resolution of the dispute and these were; 10

- whether the suit land belongs to the plaintiffs/respondents, $i$ . - whether the defendants/now appellants are trespassers on the suit land, and; ii. - the remedies available to the parties. iii.

The framing of the three issues which appear to depart from the earlier issues framed during scheduling is the issue here.

For civil matters, the law in regard to the framing of issues is Order15 Rule 1(5) of the Civil Procedure Rules. It provides;

At the hearing of the suit the court shall, after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material propositions of law or fact the parties are at variance, and shall thereupon proceed to frame issues on which the right decision of the case appears to depend.

Further under Order 15 Rules 5(1) and (2) of the Civil Procedure Rules, the trial court is empowered to amend or strike out the framed issues at any time before passing the court decree in the following terms;

(1) The court may at time before passing a decree amend the issues or frame $\mathsf{S}$ additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The court may also at any time before passing a decree strike out any issues that appear to it to be wrongly framed or introduced. 10

The argument of counsel for the appellant herein is that the issues upon which the trial court relied upon to determine the suit before it was not the same as the ones which were agreed upon during a case scheduling conference held on 12<sup>th</sup> January 2018. That because that was so, then the appellants were denied the opportunity

to address the court on the new issues that determined the matter before the trial 15 court.

That this was so because the 1<sup>st</sup> defendant (now appellant) was prejudiced since he had claimed to have purchased the suit land. To that end, counsel argued that the new issues framed rendered the trial court not to be able to determine the rights of the parties properly.

I have had the occasion to examined each of the issues framed which were used to determine the matter and I note that they were formulated in line with the pleadings of the parties.

For instance, the respondents' / plaintiffs' claim was against Okolimo Wilbrod and Akello Janet Akedo (both of who had since died and were replaced by the appellants) 25 for recovery of the suit land measuring 25 gardens at Abule village, Katine Parish, Abarilela sub-county.

The contention in the suit was that the suit land was customary land which the $\mathsf{S}$ respondents/plaintiffs inherited from their late father, Ocung Paul.

This claim sits on all fours with the trial court-formulated issues and is in accordance of Order 15 rules 5 (1) and (2) of the CPR which empowers a court to amend issues or frame additional issues where it thinks fit with the rider that any or all such

amendments or additional issues should be necessary for determining the matters in 10 controversy between the parties.

This position of framing issues was similarly considered in the persuasive decision by Hon Justice Stephen Mubiru in Mundua v Central Nile Transporters Association (Miscellaneous Civil Revision No. 0003 of 2017) [2017] UGHCCD 177.

In that case, the learned judge observed that; 15

> "Framing of issues is not adjudicatory process nor it is a decisional process in itself. Framing of issues in the trial of the suit facilitates adjudication and decision in the case. They are framed to identify the crux areas of controversy and focus on them. The object of framing issues is to shorten the arena of dispute, and to ascertain the real dispute between the parties. The issues can be framed or altered at any stage thus framing of issues has to be a free exercise so long as the issues stem from the pleadings or evidence and bring out the points in controversy. It is in the interest of all the parties that appropriate issues encompassing the entire controversy and focusing the material aspects thereof are framed. Since the settlement of issues is the discretion of the trial Court, it cannot be interfered by this court, merely because one of the parties is displeased

$12$

## with the procedure adopted by the trial court. The file therefore should be returned to the trial court to conclude the proceedings."

Whereas, Hon. Justice Stephen Mubiru in the case above largely interpreted the law already alluded to, he emphasised the trial court's discretion to frame issues geared towards ascertaining the real dispute between the parties and observed the appellate court's cautiousness in interfering with the discretion of the trial court in that regard.

In the case of Outa Charles Omoda versus Agwang Joyce Lucy Civil Appeal No. 25 of 2020, I similarly considered the issue of framing of issues and also cited the case of Mundua v Central Nile Transporters Association (supra).

- In *Outa Charles Omoda* (supra), whereas I faulted the trial magistrate's failure to 15 inform the parties in the judgment of his amending to strike out of or the adding on the issues earlier framed, there was no prejudice of any party's rights of addressing court on any matter before the court that was caused by the amended issues and for that reason, I did not interfere with the trial magistrate's discretion in that regard as I concluded that the framed issues therein which were used to decide the matter 20 were all were framed from all or any of the following; - i. allegations made on oath by the parties, - allegations made in the pleadings and; ii. - iii. the contents of documents produced by either party. - Similarly, I find that since the trial court in this matter correctly considered the 25 conditions precedent which I have listed above in determining the matter before it in the process of its exercising its discretion as provided for by Order 15 rules 5 (1)

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- and (2) of the CPR, I would conclude herein that firstly, the trial magistrate correctly $\mathsf{S}$ exercised its powers as provided by the law to amend and strike out issues and secondly, all the issues so formulated by the trial magistrate encompassed all the matters in controversy between the parties with the only manifested fault being its failure in explaining the reasons for his departure from the earlier formulated issues in its judgment which I find minor and not prejudicial to any of the party's rights at 10 all. Based on the above reasoning, ground one fails. - b) *The learned trial Magistrate erred in law and fact when he failed to judiciously evaluate the evidence, thereby arriving at a wrong conclusion:*

This ground of appeal was not properly formulated because the wording was not

- precise. This is because under Order 43 Rule 1(2) of the Civil Procedure Rules, it is a 15 requirement of the law that a round in a memorandum of appeal ought to set forth, concisely and under distinct heads such grounds of objection to the decree appealed from without any argument or narrative, and the grounds shall be numbered consecutively. - This ground of appeal as formulated which states that "The learned trial magistrate 20 erred in law and fact when he failed to judiciously evaluate the evidence, thereby **arriving at a wrong conclusion**" in my considered view is not concise. It is so general and vague as it does not point to the specific evidence before the court that the appellants are alluding to, which the trial magistrate erred in law and fact to judiciously evaluate thus arriving at a wrong conclusion. 25

A ground of appeal should not be narrative. A ground of appeal must challenge a holding, a ratio decidendi, and specify points wrongly decided.

- This was equally the position of the Court of Appeal in the case of **Celtel Uganda** $\mathsf{S}$ Limited T/A Zain Uganda v Karungi (Civil Appeal No 73 of 2013) 2021 UGCA 93 where it was categorically stated a ground such as the one in the instant appeal of "... the learned trial magistrate erred in law and fact when she failed to properly evaluate the evidence on the court record, leading to a miscarriage of justice" when assessed in - view of <u>Rule 86(1)</u> of the Court of Appeal Rules which is similarly worded as Order 10 43 rule 1(2) of the Civil Procedure Rules, did not specify the points wrongly decided and a such was too general.

In that case, the Court of Appeal went on to point out that a ground in a memorandum of appeal must specify in what way and in what specific aspect of the decision being appealed against did the court that made the decision go wrong.

In arriving at that conclusion, the Court of Appeal relied on the Supreme Court decision in Ranchobhai Shivbhai Patel Ltd and Another vs Henry Wambuga and Another Civil Appeal No. 06 of 2017 (unreported), wherein the Supreme Court while considering the import of Rule 82(1) of the Supreme Court Rules, which is also similarly worded as Rule 86(1) of the Court of Appeal Rules pointed out that an 20 impugned ground of appeal which was worded as follows: "The learned Justices of the Court of Appeal erred in law and in fact when they failed to evaluate the evidence on record and thereby arrived at a wrong conclusion was too general and does not specify in what way and in which specific areas the learned Justices of Appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived 25

at by the learned Justices of Appeal

Given the Supreme Court decision cited above, which advances the rejected ground of appeal that that is similar to the impugned ground one in consideration, I am of

- the considered view that ground one of this appeal which faults the trial court's $\mathsf{S}$ failure in law and, in fact, to judiciously evaluate the evidence, thereby arriving at a *wrong conclusion* without specifying the subject matter of the case to which this evidence relates is very narrative and not concise. - This ground does not set out how the trial magistrate failed to evaluate such evidence, and since no instances of evidence are pointed out in which the trial 10 magistrate is alleged to have wrongly evaluated, it does then contravene Order 43 rule 1 (2) of the CPR and is accordingly wrong in law for which reason I would have struck it out. Ground Two of this appeal would thus fail.

## c) The learned trial Magistrate erred in law and fact when he held that the *appellants were trespassers:*

Counsel for the appellants submitted that trespass was neither pleaded nor proved by the respondents in their evidence and it was never contended by any of the parties, to that end, counsel wonders where the trial Magistrate got the issue of trespass and that by delving in the same issue of trespass, the trial court granted the respondents reliefs which they did not seek for in their plaint which was erroneous and contrary to the case of Ms. Fang Min Versus Belex Tours and Travel Limited Civil Supreme Court Civil Appeal No. 06 of 2013 at page 29, 30 and 31 in which the court held that a party cannot be granted relief he has not claimed in the plaint.

Counsel contends that the evidence on record shows that the respondents were not in possession of the suit land at the time they filed this suit or even at the time the 25 time the appellants are said to have entered the suit land but that it was the appellants who were in possession. Counsel also cited the case of Justine E. M. N Lutaaya Vs Stirling Civil Engineering $\mathsf{S}$ *Company SCCA No. 11 of 2002* for the proposition at page 7 that it is only a person who is in possession of the land that can sue in trespass.

Conversely, the respondents' counsel contended that the respondents in para 6 (p) and para6(s) of the plaint pleaded trespass to the extent that in around 2010 after the death of their brother one Okure Christopher, it was when the 1<sup>st</sup> defendant.

10 the late Okolimo Wilbrod trespassed on the 13 and 5 gardens, respectively.

Counsel also contended that in para. 6(s) of their plaint, the respondents pleaded that their cousin sister one Putan Kelemetina whose dowry was refunded by their father in 2013 reported the trespass and forcible entry to LC1 of the area by the 1<sup>st</sup> defendant but death threats were issued against her.

Counsel contended that the respondents were in possession of the suit land before the insurgency, after which the 1<sup>st</sup> appellant, who knew of their possession, entered on the respondents' land in their absence and purported to enter into land transactions with the 2<sup>nd</sup> defendant and her son, who all knew well.

Counsel asserted that the 2<sup>nd</sup> appellant, in her evidence, admitted that the 20 respondents' father paid eight cows as a refund of the dowry of her biological sister Putan Kelemetina and that Opio gave the suit land to the respondent's father, which land was for her father, late Elamu.

Counsel for the respondents averred that among the prayers/relief sought in the plaint was a declaration that the appellants be declared trespassers, among other 25 reliefs sought.

In my view, the major contention of the appellants is why the trial magistrate $\mathsf{S}$ resolved the issue of whether the appellants are trespassers on the suit land even though, to counsel, no evidence was adduced in court to show that the respondents were in possession.

Upon my perusal of the plaint, I find that the respondents' claim as couched under paragraph 5 was for recovery of approximately 25 gardens, an order for a permanent injunction, vacant possession, general damages and costs of the suit.

The facts upon which the cause of action arose as is garnered from the plaintiffs' pleadings under paragraphs 6 (f), $(p)$ and $(s)$ are that;

- a) That the late Opio Honorat (the biological brother to late Elamu) consulted his cousin brother one late Ocung, father to the plaintiffs to relieve the suit land by refunding the dowry, which indeed the plaintiff's father did and the land *remained for the plaintiffs.* - b) That around 1980, the plaintiffs now took possession of the suit land, built a home on it and cultivated it. - c) That the plaintiff's father relocated the two widows of late Elamu to approximately eight gardens 191 the old homestead to where the late Iningo was buried because he could not chase them away. - d) That due to the Karamojong insurgency, the plaintiffs took off for refuge in Jinja and left the suit land vacant. - e) That around 1980-81, the 1<sup>st</sup> defendant came to the land of Opio Honorat (brother to late Elamu) and paternal uncle to the plaintiffs to stay temporarily where he was given land measuring approximately 8 gardens next to the swamp.

The aforementioned paragraphs, together with paragraph 6 (p) of the plaint, infer a $\overline{5}$ plea of trespass to the extent that in around 2010 after the death of the brother of the plaintiff, that is, one Okure Christopher, is when the 1st defendant, the late Okolimo Wilbrod, trespassed on the 13 and 5 gardens, respectively.

In their plaint, the plaintiffs prayed for a declaration that the defendants were trespassers on the plaintiff's land. So far, according to the plaint, the plaintiffs indeed 10 alluded to the trespass of the defendants/appellants and also made a prayer for a declaration contrary to the appellants' counsel's contention that they did not plead and pray for the same.

Also, according to the evidence adduced, the 2<sup>nd</sup> appellant admitted that the respondents' father paid eight cows as a refund of the dowry of her biological sister 15 Putan Kelemetina and that Opio gave the suit land to the respondent's father, which land was for her father, late Elamu.

In respect of this, the 1<sup>st</sup> respondent told the court that in 1980 when the widows and Opio were alive, his brother, Simon Engole settled on the suit land and that later the $1^{\ensuremath{\text{st}}}$ respondent' father also joined on the suit land who also brought the $1^{\ensuremath{\text{st}}}$ respondent's mother.

The 1<sup>st</sup> respondent further told the trial court that he built on the suit land in 1986 before he joined police.

The 2<sup>nd</sup> respondent also corroborated the 1<sup>st</sup> respondent's evidence that in 1980 his elder brother Simon Engole constructed a home on the suit land and began living there and later the 1<sup>st</sup> respondent too built there in 1986.

Likewise, PW4 Kelementina Putan testified that the whole of their father's land was $\mathsf{S}$ given to the respondents' father after a refund of the eight cows.

From the evidence of these witnesses, it is clear to me that the trial court correctly found that the respondents enjoyed possession of the suit land before the Karimojong insurgency and only fled same thereafter which condition enabled the appellants to move onto the suit land that belonged to the respondents.

In the case of Justine E. M. N Lutaaya -v- Stirling Civil Engineering Company. C. A No. 11 of 2002, it held that "trespass to land occurs when a person makes an unauthorised entry upon the land and thereby interferes or purports to interfere with another person's lawful possession of that land. Needless to say, the tort of trespassing on land is committed not against the land but against the person who is in actual or

## constructive possession of the land."

Because evidence was led to prove that the respondents' father had been given the suit land in exchange of the cows, I am of the considered view that he owned the land because also evidence was led to prove that the respondents who inherited the land also took possession of it and even built on it before the Karimojong

insurgencies.

In law, possession can be actual or constructive and in this case by the time the appellants got onto the land, it was already in the possession of the arespondents, therefore an action of trespass was rightly maintained and found in favour of the respondents as against the appellants. Therefore, ground three fails.

c) The decision of the trial Magistrate has occasioned a grave miscarriage of justice:

In the case of Matayo Okumu Versus Fransiko Amudhe [1979] HCB 229, It was held $\overline{5}$ that "substantial miscarriage of justice occurs where there has been misdirection by the trial court on matters of fact relating to evidence tendered or where there has been unfairness in the conduct of the trial."

Addedly in the case of Olanya James Versus Ociti Tom & 3 Others Civil Appeal No. 064 of 2017, Stephen Mubiru, J was of the view that "a miscarriage of justice occurs when it is reasonably probable that a result more favourable to the party appealing would have been reached in the absence of the error." I agree and would have nothing to add to the same.

In this appeal which relates to the case before the trial court, I find that no miscarriage of justice was occasioned onto the appellants as a result of the findings 15 of the trial court. Ground 4 equally fails.

9. Conclusion:

All the grounds in this appeal have failed, with the result that this appeal is found to lack any merit. It is thus dismissed accordingly.

## 10. Orders: 20

- This appeal is found to lack merit and it is dismissed. - The Judgment and Orders of the lower trial court the judgment and orders in Civil Suit No. 019 of 2017 of the Chief Magistrate's Court of Katakwi at Amuria by HW Awacnedi Freddie, delivered on 14<sup>th</sup> September 2018, is upheld. - 25

The costs in this court and the below is awarded to the respondents

I so order.


Hon. Justice Dr Henry Peter Adonyo

Judge

02<sup>nd</sup> May 2024