Emorut v Anyango and 4 Others (Civil Appeal 43 of 2023) [2024] UGHC 555 (20 June 2024)

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0043 of 2023

(Arising from Civil Suit No. 0014 of 2019)

Emorut Vincent (Suing through a lawful attorney) :::::::::::::::::::::::::::::::::::: 10

## Versus

- 1. Anyango Dinnah - 3. Moko Nakalet :::::::::::::::::::::::::::::::::::::: - 15 4. Asolo Stephen - Ojilong Michael

2. Odeke Charles

## Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

Judgement on Appeal

## 20 1. Introduction.

This is an appeal from the judgement and orders of the Chief Magistrates Court of Soroti at Soroti delivered on the 30<sup>th</sup> day of August 2022 by Her Worship Aanyu Margaret, Chief Magistrate.

## 2. Background.

The respondents filed Civil Suit No. 0014 of 2019 against the appellant for 25 trespass on land located at Apopang Village, Amaseniko Parish, Kapalebyong Subcounty, Kapelebyong District measuring approximately 50 gardens/acres, a

declaration that the respondents are the rightful owners of the suit land, a $\mathsf{S}$ permanent injunction, general damages, vacant possession, interest and the costs of the suit.

The respondents' claim was that at all material times are the rightful and lawful owners of the suit land customary land holding upon inheriting the same from

the late Imalingat Clement the past original owner who died on the 16<sup>th</sup> day of 10 October 2010.

That the respondents are all members of the same family of the late Imalingat, with the 1<sup>st</sup> respondent being his wife and the 2<sup>nd</sup> to 5<sup>th</sup> being his children.

That this family has been in occupation and possession of the suit land for a very long time, the $1^{\rm st}$ respondent's in-laws and grandparents to the $2^{\rm nd}$ to $5^{\rm th}$ 15 respondents were also born, died and were buried on the suit land.

That it was only in the period of the Karamojong insurgency of 1980s displaced late Imalingat Clement and the family from the suit land and when the insurgency ended they all came back to settle on their land, like before.

That when the late Imalingat and the plaintiffs returned after the insurgency, the 20 appellant had trespassed on the suit land and resisted late Imalingat's rightful occupation of suit land.

The matter went to L. C.1 Courts of Apeluk and Apopong villages and in both LC1 courts Imalingat won the case, the appellant appealed to the LC II Court which still found for Imalingat, however, despite this the appellant did not respect these decisions and kept resisting Imalingat's occupation of the suit land by forcefully entering the same in 2008 and 2016.

The appellant in his written statement of defence denied the above allegations contending that the appellant is the customary beneficial owner of the suit land

and has at all material time utilized, cultivated and or been in quiet and peaceful $\mathsf{S}$ possession of the same for over 40 years without interference from any person and as such he has never trespassed on the respondents' land.

He further contended that the suit land forms part of the estate of his father the late Otedo Andrew who had in turn inherited from his own father the late Itelait and they are both buried on the suit land.

That he was born on the suit land in 1954 and has grown up on it and has at all material times possessed the same, and there are no judgements or decisions from the LC Courts as alleged by the respondents and if there were any they were a nullity.

- The Trial Magistrate having heard the matter entered judgement in favour of the 15 plaintiffs now respondents with the following orders; - Judgement is hereby entered against the Defendant. i. - II. It is hereby declared that the Plaintiffs are the customary owners of the customary land comprised in Apopong Village, Amaseniko Parish, Kapelebyong Sub-county, Kapelebyong District measuring approximately 50 gardens/acres. - The Defendant is a trespasser to the said land above in ii. iii. - Permanent injunction is hereby issued restraining the Defendant and or iv. his agents and or any person(s) claiming under him from further trespassing on the suit land. - The Defendant to pay to the Plaintiffs general damages of a sum Ugx. V. 10,000,000/= (Ten Million Shillings Only). - Interest to accrue on 'v' above at court rate from the date of judgment vi. until payment in full. - 30 vii. The Defendant to pay costs of this suit.

- $5$ The defendant now appellant dissatisfied with this judgement appealed to this court on the following grounds: - 1. The Learned Trial Magistrate erred in law and fact when she ignored the evidence on court's record and therefore arrived at a wrong conclusion when she found that the Respondents/Plaintiffs are the owners of the entire suit land. - 2. The Learned Trial Magistrate erred in law and fact when she ignored the evidence of PW1, PW2, PW5, PW6, PW7 & PW8 confirming that the defendant was not on the suit land and thereby arriving at a wrong finding that the defendant was a trespasser on the suit land. - 3. The Learned Trial Magistrate erred in law and fact when she found in her locus notes that court went through the entire 50 gardens yet rain interrupted the locus exercise when it rained heavily leaving court to only look at the area of about 5 acres covered by the few home stead and active cultivation. - 4. That the Learned Trial Magistrate erred in law and fact when she failed to 20 evaluate the evidence on record and therefore arrived at the wrong conclusion when she ignored the evidence of existence of an injunction which was confirmed by PW8. - 3. Duty of the $1^{st}$ appellate court. - This Honourable Court is the first appellate court in respect of the dispute 25 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 own conclusion as was held in Father Nanensio Begumisa and Three Others v. Eric - Tiberaga SCCA 17 of 2000; [2004] KALR 236. 30

The duty of the first appellate court was well stated by the Supreme Court of $5$ 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 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 heard the witnesses and where it finds conflicting evidence, then it must weigh

such evidence accordingly, draw its inferences and make its own conclusions. 15 See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

In considering this appeal, the above legal provisions are taken into account.

4. Representation.

The Appellants were represented by M/s Menya & Co. Advocates while the 20 respondent was represented by Asire & Co. Advocates.

- 5. Determination. - a) Grounds 1 & 2.

- The Learned Trial Magistrate erred in law and fact when she ignored the evidence on court's record and therefore arrived at a wrong conclusion when she found that the Respondents/Plaintiffs are the owners of the entire suit land.

The Learned Trial Magistrate erred in law and fact when she ignored the evidence of PW1, PW2, PW5, PW6, PW7 & PW8 confirming that the

defendant was not on the suit land and thereby arriving at a wrong finding that the defendant was a trespasser on the suit land.

Counsel submitted that from the respondent's pleadings, they relied on trespass to constitute a cause of action and that question to be asked is whether at the time of filing Civil Suit No. 0014 of 2019 from which this appeal arises the appellant was a trespasser on the suit land given the evidence.

Counsel submitted that it is apparent that a sound court should have found that the case before her was redundant was not supposed by any evidence of trespass at the time of filing neither was there any threat to trespass and the case was purely filed to inconvenience the appellant and should have been dismissed for want of cause of action against the appellant.

Counsel further submitted that a cause of action as espoused in *Tororo Cement* Co. Ltd vs Frokina International SCCA No. 02 of 2021 is 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 judgement.

- 20 He added that the position of the law is that trespass to land occurs when a person makes an unauthorised entry upon another's land and remaining upon such land or placing any material objects upon it in each case without lawful justification. He relied on Justine E. M. N Lutaya v Stirling Civil Engineering Company, SCCA No. 11 of 2002. - Counsel for the appellant submitted that a perusal of judgement clearly shows 25 that the Trial Magistrate totally ignored the evidence on court's record and found that the defendant was a trespasser on the suit land, thereby occasioning a miscarriage of justice.

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Counsel for respondents in reply submitted that it is the testimony of PW1, PW2, $\overline{5}$ PW5, PW6, PW7 and PW8 that the appellant entered the suit land in 2009 by cultivating rice in one garden when the suit land was in possession of the respondent and the appellant never controverted that testimony.

Counsel added that the trial court rightly found that the Appellant is a trespasser and for one to succeed in action of trespass on has to prove ownership and lawful 10 entry. The respondents discharged the burden and proved that the suit land belongs to them and equally discharged the burden and proved that in 2009 the appellant entered the suit land by cultivating rice.

- 6. Determination: - In Justine E. M. N. Lutaya v Stirling Civil Engineering Company Ltd [2003] UGSC 39 it 15 was found that;

"Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass."

It was further stated that;

"Trespass to land is a continuing tort, when an unlawful entry on the land is followed by its continuous occupation or exploitation. Proof of such continuous unlawful occupation, is sufficient proof of trespass, even if the date it commenced is not proved."

In this instance the respondents in their plaint in Civil Suit no. 014 of 2019 brought $\mathsf{S}$ a claim against the appellant for trespass on land located at Apopong village, Amaseniko Parish, Kapelebyong sub-county in Kapelebyong District.

Under paragraph $5(f)$ and $(g)$ of the plaint it is stated that when the late Imalingat who was the husband to the 1<sup>st</sup> respondent returned to the suit land with the respondents after the insurgency they found when the appellant had

trespassed on the suit land and the issue was reported and raised up with the LC1 Courts of Apeluk and Apopong villages which decided in favour of the late Imalingat.

Under paragraph 5(I) of the plaint it is also stated that the appellant after the ruling in 1986, from then there was calm on the suit land till 2008 when the 15 appellant again forcefully entered the suit land when it was in Imalingat's possession.

That the matter was again then taken to the LC courts which decided in favour of Imalingat.

That from 2009 till 2016 there was calm on the suit land when the appellant in 20 the company of others again showing dissatisfactions went back to their usual tricks and forcefully entered the suit land leading to the filing of Civil Suit No. 014 of 2019 from which this appeal arises.

The respondent's evidence on record as testified to by PW1 to PW9 all point to the fact of the appellant gone to the suit land in 2009 and forcefully cultivated 25 rice thereon with PW1 during cross-examination testifying that in 2009 after the appellant forcibly cultivated rice in her garden the matter was reported to the LC court which heard it and resolved the matter against the appellant who then stopped his cultivation and had not continued the said cultivation to date.

 $\mathsf{PW2}$ who is the $2^{\mathsf{nd}}$ respondent corroborated this in his testimony in cross- $\overline{5}$ examination. Also PW5 Asolo Stephen in cross-examination confirmed that the appellant has not been on the suit land for over 30 years.

The 5<sup>th</sup> respondent (PW6) also in cross-examination testified that their case was filed in 2019 and that the appellant was not on the land and had never stepped on the same.

During re-examination he maintained this adding that it is the respondents who were freely using the suit land.

PW7 Epiru Justine in cross-examination stated that the appellant is not a resident of Apopong village and that he is not on the suit land and has never built on the

same. He further stated that ever since he was born the defendant has never 15 lived nor built on the suit land and he only cultivated it once in 2009 when he trespassed on the same, however, he was chased away and stopped from cultivating the land in 2009.

PW9 Osujo John in cross-examination also stated that the appellant is not on the 20 land.

The above is the testimony as regards to both ownership and trespass.

I will first consider the ground of trespass found in the second ground.

In manner of speaking, trespass is defined as any interference with the position of land without lawful justification. Trespass could be committed in two ways,

either by the person himself or herself entering the land of another person or 25 doing the same through some material, tangible object stairs, throwing stones on another person's land or driving a nail into his wall or leaving debris on the roof.

The essential ingredients of trespass to land are that transgressor is in exclusive possession of the land, the transgressor entered into that land or

remained there for however short time, and such entry was without any lawful $\mathsf{S}$ iustification.

Accordingly, trespass may be committed by wrongful entry, by remaining on the land, by placing things in another's land or by animal trespass. In some circumstances trespass may be even aerially.

- Trespass, be trespass over land or by placing things on one's land is a tort of 10 continuous nature and gives rise to actions from day to day so long as it continues with the right to action continuing from day to day until the cause of trespass is removed or until it is abated. A trespass does not continue the very day on which he was disposed by the trespasser. - In Uganda, trespass can take different forms, including trespass to goods, 15 trespass to the person, and criminal trespass. Let's delve into each: - Trespass to goods occurs when someone wrongfully possesses goods. $\mathcal{L}^{\mathcal{L}}$ Anyone except the rightful owner who interferes with such possession can be held liable for trespass to goods. - Trespass to the person involves intentional interference with a person's body or liberty. It includes three main forms of assault, that is threatening or attempting to harm someone physically, battery which is actual physical harm caused to another person and false Imprisonment which is unlawfully restricting someone's freedom of movement. - Criminal Trespass occurs when someone enters property or land in 25 possession of another with the intent to commit an offense or to intimidate, insult, or annoy anyone. It involves unauthorized entry onto premises or direct interference with possession.

## See: Mitti Vs Ssewagude & 3 Ors (Civil Suit No.449 of 2016) and Adrabo v Madira $\mathsf{S}$ (Civil Suit No. 0024 of 2013) [2017] UGHCLD 102.

From the above evidence it is clear that the respondents' claim of trespass could not be maintained simply because the appellant was not forcefully on the suit land in 2019 when the head suit was filed for he ceased being so in 2009 after he was stopped from cultivating the same.

Trespass as noted above is an unlawful entry on the land is followed by its continuous occupation or exploitation. In this instance the respondents were in possession of the suit land when the appellant trespassed on the same in 2009, and planted rice, at this point the respondents had the right to sue for trespass

- as against the appellant and as per their testimonies, the LC court got involved 15 and the appellant immediately stopped his tortious act and after this point the appellant was never seen on the suit land again. This means that there was no continuation of the tort of trespass so as to constitute a cause of action in 2019 when the respondents filed their suit in the lower court. - This is because by virtue of the provisions of Section 3 (1) of Limitation Act Cap 20 80 of the Laws of Uganda actions for tort such as trespass cannot be brought after the expiration of six (6) years from the date on which the cause of action arose.

A cause of action is disclosed when it is shown that the plaintiff had a right, and that right was violated, resulting into damages and the defendant is liable. See: 25 Tororo Cement Co. Ltd vs Frokina International Ltd; Civil Appeal No. 21 of 2001.

In this instance, the appellant entered the suit land in 2009 but there after he was stopped and was not on the suit land in 2019 when the respondents filed Civil Suit No. 14 of 2019.

- This means that while the tort of trespass as a cause of action was tenable against $\mathsf{S}$ the appellant in 2009, it ceased to be so when the appellant vacated the land and was not in it in 2019 when the instant suit was filed. Thus trespass could not be maintained by the respondents without evidence of continuous unlawful entry or use of the suit land. - Consequently, while I do agree with the trial Magistrate that the appellant was a 10 trespasser on the suit land in 2009 as his entry to it was unlawful with the cause of action in trespass subsisting from 2009 to 2015, but after 2025 the same ceased to be so.

It was thus inappropriate for the trial magistrate to make a finding that the appellant was a trespasser in 2019 and make an award of general damages based 15 on a finding that he was a trespasser yet the cause of action of trespass in trespassed had ceased to exist way back in 2015 by virtue of the Limitation Act. Accordingly, Ground 2 of this appeal succeeds in that regard.

Regarding the first ground of appeal this court finds the same is too general and offends the provisions of Order 43 rule (1) and (2) of The Civil Procedure Rules $20$ which require a memorandum of appeal to set forth concisely the grounds of the objection to the decision appealed against.

Appellate courts usually frown upon the practice of advocates setting out general grounds of appeal that allow them to go on a general fishing expedition at the

hearing of the appeal hoping to get something they themselves do not know. 25

Even without being general I noticed that counsel for the appellant focused his submissions on the issue of trespass and did not contest the finding of the trial magistrate on ownership of the suit land.

- I will therefore not make findings on ownership of the suit land by the $\mathsf{S}$ respondents as the same was duly handled by the trial magistrate and no specific objection on ownership has been raised in the appellant's submissions. - 7. Ground 3.

- The Learned Trial Magistrate erred in law and fact when she found in her locus notes that court went through the entire 50 gardens yet rain interrupted the locus exercise when it rained heavily leaving court to only look at the area of about 5 acres covered by the few home stead and active cultivation.

Counsel for the appellant submitted that the trial Magistrate in her assessment of the record concluded that the respondents had proved their case on the 15 balance of probabilities against the appellant that they are the customary owners of the suit land. Counsel sneaked in submissions, the issue of ownership of the land which I have ignored as being matters being raised from the but not based on what was decided assessed and decided upon in the lower trial court.

Regarding the locus visit counsel, submitted that the locus was not properly 20 conducted as only about 5 acres of land had been inspected by court before it started raining with the court being disrupted and never returned to complete the inspection of the entire 50 gardens and that this fact is reflected in the locus map which only shows a straight line with a few structures on the sides and does not capture the other angles of the suit land or its neighbours. 25

Counsel also submitted that the trial Magistrate needed to and was in fact expected to walk around the entire 50 gardens that form the suit land, call witnesses of both parties which did not happen and as such locus was badly handled and the resultant evaluation could not give a fair decision.

Counsel for the respondent in reply submitted that Counsel for the appellant's $\mathsf{S}$ submissions fell short of demonstrating to court what miscarriage of justice was occasioned to the appellant.

I would agree with the respondent that counsel for the appellant failed to stipulate how the locus in quo visit occasioned a miscarriage of justice to the appellant.

Furthermore, this ground of appeal offends the provisions of Order 43 rule (1) and (2) of the Civil Procedure Rules which require a memorandum of appeal to set forth concisely the grounds of the objection to the decision appealed against without any argument or narrative. It is argumentative and narrative thus would be accordingly dismissed.

- 8. Ground 4. - That the Learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record and therefore arrived at the wrong conclusion when she ignored the evidence of existence of an injunction which was confirmed by PW8.

The injunction referred to by the appellant was regarding an injunction on the suit land that was made in 1997 by the RC as mentioned in the testimony of PW8, however this injunction did not prove ownership of the suit land. Counsel for the appellant also failed to submit how the same was relevant to the determination of the matter in the lower court. This ground is accordingly dismissed.

9. Conclusion.

This appeal fails on grounds 1,3 and 4 except but succeeds on ground 2 as regards trespass.

10. Orders.

- a) This appeal fails on al ground except Ground 2 in regard to trespass. - b) The judgment of the lower court is upheld save in regard orders on trespass and general damages which are accordingly set aside. - c) The cost of this appeal to be borne by either party. - d) The cost in the lower trial court to be borne by the appellant.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

20<sup>th</sup> June 2024

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