Esomu Ebalu v Orit (Civil Appeal 35 of 2022) [2024] UGHC 906 (15 August 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 35 of 2022

(Arising from Civil Suit No. 5 of 2013)

Esomu Ebalu Martin :::::::::::::::::::::::::::::::::::: 10

Versus

Orit James ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

#### Judgement

(An appeal against the judgment and orders of the Magistrate Grade One of the Chief Magistrates' *Court of Katakwi at Amuria delivered on 15<sup>th</sup> June 2022)*

1. Introduction:

$5$

Orit James who was the plaintiff (now respondent), as a holder of letters of administration to the estate of the late Eitu Yuventino, sued Esomu Ebalu Martin, the defendant (now appellant) seeking a declaration that he is the rightful owner of the land situated at Ocorikoit/Olilai village, Amootom Parish Okungur Sub-county, formerly in Amuria District but now Kapelebyong District (measuring ten

gardens/acres - the suit land), a permanent injunction, vacant possession and costs $\mathsf{S}$ of the suit.

The respondent sought a declaration that the suit land belongs to the estate of the late Yuventino Eyitu, a declaration that the respondent is not only a beneficiary of the estate of the late Yuventino Eyitu but also the owner of the suit land by being a holder of Letters of Administration to the said estate, a declaration that the respondent is entitled to occupy and possess the suit land by being a beneficiary to the estate of the late Yuventino Eyitu, a declaration that the appellant together with his agents are not entitled to enter and possess the suit land, a permanent injunction to restrain the appellant, and his agents from entering and using the suit

land or from dealing with the suit property in any way without the consent of the 15 respondent, general damages, exemplary damages, mesne profits and costs of the suit,

# 2. The appellant / then defendant's claim

The appellant denied the respondent's claim and contended that he was the rightful owner of the suit land, measuring 10 acres /gardens, which he inherited from his 20 late father, Obure Leonard, who died in 1987, and Alupo Angella (his late mother). He contended that his late father acquired the suit land from his relatives Stephen Eiru and Ramathan Olur.

He averred that their old homestead on that land is still visible where he was born and grew up in the 1950s. He averred that the respondent's father was a neighbour 25 to the appellant when the respondent was still young and living in Orungo.

The appellant contended that the respondent took advantage of the insurgencies, $\mathsf{S}$ e.g. Karamojong, Kony and others, to encroach on the appellant's land as the appellant and the community took off for refuge.

That the respondent changed the old boundaries that had been there before and made new boundaries to suit his interest.

The appellant contended that he brought onto the land hardcore because he is the 10 rightful owner of the suit land as his old homestead (*Ejeburu*) exists, which land was still vacant.

The appellant further contended that the old homestead already had building materials since the 1960s.

The appellant conceded that a meeting was held, and one of the respondent's clan 15 leaders declared the appellant's father as the owner of the suit land.

## 3. The respondent / then plaintiff's claim:

The respondent pleaded ownership of the suit land by inheritance from his late father, Eitu Yuventino, whom he claimed to have also inherited the suit land from his fathers, the Late Emau Eliparido, Eyokoyesi Ekwesu, and Raymond Edacu. In December 2010, the LC1 of Olilai village planted boundary marks between the respondent and his neighbours (Auma Mary and Obure) without any complaints.

The respondent averred that he had been utilising the suit land without interference until July/August 2012, when the appellant dumped building materials on it, destroying the respondent's crops. That afterwards, the appellant started laying claims of ownership of the suit land.

- At the trial in the lower court, three issues formed the basis of the trial magistrate's $\mathsf{S}$ determination of the dispute: - who the rightful owner of the suit land is, - whether the defendant is a trespasser, and - the remedies available to the parties. - The trial Magistrate received evidence from the parties and visited the locus in quo 10 on 8<sup>th</sup> February 2022.

The trial magistrate in issue 1 found that the respondent owned the suit land and that the appellant was a trespasser for having dropped building materials on it. Thus, from this finding, the trial magistrate entered judgment in whole in favour of the respondent/then plaintiff which the appellant/then defendant, was not satisfied with. Thus this appeal.

## 4. Grounds of Appeal:

The appellants raised four grounds as follows:

- 1) The Learned Trial Magistrate erred both in law and fact when he failed to properly evaluate the evidence on record occasioning injustice to the appellant. - 2) The Learned Trial Magistrate erred both in law and fact when he relied on fresh evidence adduced by the Respondent during the locus in quo visit, that did not form part of the evidence adduced in Court before the locus-in-quo visit occasioning injustice to the Appellant.

- 3) The Learned Trial Magistrate erred both in law and fact when he held that Defence Witness 2, Oile Patrick, did not attend court during the locus-in-quo proceedings, thus occasioning injustice to the Appellant. - 4) The Learned Trial Magistrate erred both in law and fact when he failed to conduct the locus in quo and take a record of the proceedings in a proper manner provided for in law, thus occasioning injustice to the Appellant. - 5) The Learned Trial Magistrate erred both in law and fact when he held that the land belonged to the Respondent. - 6) The learned Trial Magistrate erred both in law and fact when he relied on a certificate of title and evidence of undisclosed witnesses that did not initially form part of the evidence adduced before the locus-in-quo visit occasioning injustice to the Appellant. - 7) The Learned Trial Magistrate erred both in law and fact when he unjustifiably relied on the evidence of Obure Joseph and Egetu Benard when they un justifiably did not attend the locus-in-quo to have their evidence verified, occasioning injustice to the Appellant. - 8) The Learned Trial Magistrate erred both in law and fact when he ignored the inconsistencies in the evidence adduced by the Respondent, occasioning injustice to the Appellant. - 9) The Learned Trial Magistrate erred both in law and fact when he disregarded the evidence adduced by the Appellant without any lawful justification occasioning injustice to the Appellant. - The Learned Trial Magistrate erred both in law and fact when he relied $10)$ on the observations which did not form part of the locus in-quo visit record of proceedings occasioning injustice to the Appellant.

$\mathsf{S}$

- The Learned Trial Magistrate erred both in law and, in fact, when he $11)$ failed to administer the oath to the witnesses before giving evidence during the locus in quo visit occasioning injustice to the Appellant. - The Learned Trial Magistrate erred both in law and, in fact, when he $12)$ failed to record the evidence of Ecaru John and Ocen Dennis during the locusin-quo visit, occasioning injustice to the Appellant. - $13)$ The Learned Trial Magistrate erred both in law and fact when he failed to draw the sketch map of the disputed land, occasioning injustice to the Appellant.

The appellant prayed that the appealed decision of the Magistrate's Court be set 15 aside and his appeal be allowed and that he be declared the rightful owner of the suit customary land measuring approximately ten acres.

In the alternative, the appellant prayed that matter be sent back to the magistrate court for a retrial, and that the costs of this appeal and those in the magistrate's court at Amuria be granted to him against the respondent.

#### 5. Duty of the first appellate court 20

I am cognizant that the duty of the first appellate court is to scrutinise and reevaluate 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 that:

"The first appellate court has a duty to review the evidence of the case and to 25 reconsider the material before the trial judge. The appellate court must then

$\mathsf{S}$

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 2000; [2004] KALR 236, the obligation of a first appellate court was pointed to be;

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

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

This appellate court is empowered by Section 80 of the Civil Procedure Act, Cap 71, to determine a case to its finality and in exercising that power during the resolution of this appeal, consideration of the above legal position regarding the duty and legal obligation of the first appellate court is taken into account.

### 6. Representation:

Counsel Bahati Nasur represented the appellant, and Counsel Wazemwa represented the respondent. Both sides argued this appeal through final written submissions which are on record and reference to them are made together with the materials from the lower trial court as and when necessary. I am thankful to the parties for the input thereto. Because they are on the court's record,

Before I delve into this appeal, I must point out that this appeal arises from a civil land matter and as with all civil matters, the appellant has the burden of proof as

per Sections 101 and 102 of the Evidence Act, Cap 6 to prove his case on a balance 25 of probabilities. See: Nsubuga vs Kawuma [1978] HCB 307.

$\mathsf{S}$

On the other hand, the appellant must bear in mind the holding in the case $\mathsf{S}$ of *Erumiya Ebyetu v. Gusberito [1985] HCB 64* where 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."

#### 7. Determination: 10

From the submissions, the appellant's counsel withdrew the 6<sup>th</sup> ground and argued this appeal by consolidating grounds 2,4,5,7,11,12 and 13 because they all relate to locus proceedings and further merged grounds 1, 3 and 9 regarding evaluation of evidence and contradictions.

The appellant's counsel then formulated issues to ease the determination of the 15 appeal. The respondent's counsel followed suit in arguing the appeal.

I have perused the issues proposed by the appellant's counsel. Since the respondent's counsel also followed them in arguing the appeal, I am persuaded to adopt that arrangement to determine this appeal though Section 80(1)(c) of the Civil

Procedure Act empowers this appellate court to frame issues and refer them for 20 trial.

The issues are;

a. Whether the learned trial Magistrate erred both in law and fact when he failed to conduct the locus in quo and take records of its proceedings in a manner provided for by law?

- b. Whether the Trial Court erred both in law and fact when evaluating the evidence on the record leading to miscarriage of justice to the Appellant? - c. Whether the reliance by the learned Trial Magistrate on a certificate of title not initially presented as part of the evidence prior to the locus-inquo visit, constitutes a legal error leading to an injustice? - d. What remedies are available to the Appellant?

I have perused and considered the record of proceedings, the locus notes, and submissions by both parties. I find that the resolution of issues 1, 2 and 3 which revolve around the issue of admitting a certificate of title over the suit land at the

- visit to the *locus in quo* among others will have the effect of disposing the whole 15 appeal and I have thus chosen to consider the same as herein under. - 8. One: - a. Whether the learned trial Magistrate erred both in law and fact when he failed to conduct the locus in quo and take records of its proceedings in a manner provided for by law? - b. Whether the Trial Court erred both in law and fact when evaluating the evidence on the record leading to miscarriage of justice to the Appellant? - c. Whether the reliance by the learned Trial Magistrate on a certificate of title not initially presented as part of the evidence prior to the locus-inauo visit, constitutes a legal error leading to an injustice?

Counsel for the appellant's submission under issues 1, 2 and 3 revolved around taking additional evidence from the trial magistrate at the locus. Counsel for the

$\mathsf{S}$

- appellant pointed to reliance and indication of a certificate of title to the suit land. $\mathsf{S}$ Counsel submitted that the trial magistrate's reliance on the same was illegal. Counsel further submitted that the error prejudiced the appellant's interests as he was denied the right to be heard and impeach the said title contrary to the dictates of Article 28 of the Constitution of the Republic of Uganda, yet the court relied on - the title against the appellant. 10

Contrariwise, counsel for the respondent submitted that as far as the land title is concerned, the trial court did not rely on it while making its judgement.

Counsel asserted that on page 8 of the trial court's judgement under the first paragraph, which is a continuation of the last paragraph on page 7, the Court noted

counsel for the appellant's submission that the court's jurisdiction had been ousted 15 when the respondent titled the land but Court observed that the appellant had the option to put an injunction on the process but did not.

Counsel submitted that there is nowhere in the judgment that the trial court relied on the land title to reach the decision.

Counsel submitted that the land getting titled in no way prejudiced the appellant's 20 case.

That, after all, as stated in page 2 of the locus proceedings, in the respondent's crossexamination by the appellant's counsel, he did state that he was given the title after filing the case but the process had begun earlier before the suit was filed.

Counsel further submitted that the title was not relevant to the merits of the case. 25 ## 9. Determination:

$5$

*Whether the learned trial Magistrate erred both in law and fact when he failed to* conduct the locus in quo and take records of its proceedings in a manner provided for by law?

The contentions raised by the appellant's counsel regarding this issue are; faulting the trial magistrate in relying on the evidence adduced at the locus, which did not 10 form part of the evidence adduced in court, faulted the trial magistrate in failing to conduct a locus in quo and taking a record of the proceedings in a proper manner provided for in law, thus occasioning injustice to the Appellant and relying on a certificate of title and evidence of undisclosed witnesses that did not initially form

part of the evidence adduced before the locus-in-quo visit occasioning injustice to 15 the Appellant.

Practice Direction No. 1 of 2007 guides the proceedings at locus in quo. Regulation 3 thereof provides as follows:

Visits to Locus in Quo

- During the hearing of land disputes, the court should take interest in visiting the locus 20 in quo, and while there: - a. Ensure that all the parties, their witnesses, and advocates (if any) are present. - b. Allow the parties and their witnesses to adduce evidence at the locus in quo. - c. Allow cross-examination by either party or his/her counsel. - d. Record all the proceedings at the locus in quo. - e. Record any observation, view, opinion or conclusion of the court, including drawing a sketch plan, if necessary.

The court is also enjoined under Order 18 rule 14 CPR; which stipulates that the $\mathsf{S}$ court has power at any stage of a suit to inspect any property or thing concerning which any question may arise. See HCCA (Masaka) No. 59 of 2019 Ddamulira Aloysius versus Nakijoba Josephine.

It has also been held that this power includes inspection of the locus in quo. (see *Opio v Onyai (Civil Appeal No. 39 of 2014) [2016] UGHCLD 35).*

According to the case of Badru Kabalega versus Sepriano Mugangu (1992) KALR 265, it was held that the purpose of visiting locus in quo is for each party to indicate at the locus what he is claiming and each party must testify on oath and be crossexamined.

Further, in the case of Otto Aita versus Akena Nekomia Civil Appeal No. 0013 of 2014, 15 it was held that the practice of visiting the locus in quo is to check on the evidence by the witnesses and not to fill gaps in their evidence for them or lest Court may run the risk of turning itself a witness in the case.

See also the case of Bwire John Guloba versus Wanyama Manasi & Oweri Joel HC-04-

CA-092-2008. 20

I have examined and perused the record/locus notes and the judgment; I am persuaded that the trial magistrate allowed the witnesses to clarify their testimony on the locus.

There is no law that makes it mandatory for the trial magistrate to draw up a sketch plan as part of locus proceedings. It may be drawn as a matter of necessity 25 depending on the facts of each case.

In my view, the trial magistrate, gave particular attention to the witnesses at locus $\mathsf{S}$ to testify about the suit land.

That being the case, I am persuaded that the trial magistrate conducted the locus proceedings properly as per the practice directions that I have cited. This issue thus fails.

10. Whether the Trial Court erred both in law and fact when evaluating the evidence on the record leading to miscarriage of justice to the Appellant? Whether the reliance by the learned Trial Magistrate on a certificate of title not initially presented as part of the evidence prior to the locus-in-quo visit, *constitutes a legal error leading to an injustice?*

On pages 7-8, the learned trial magistrate indicated that the suit land was held customarily before the suit was instituted, that the same suit land had been titled at the time of locus, and that there were boundaries, including mark stones. However,

he noted that these changes were not fatal and that the defendant should have 20 applied for an injunction then.

I take exception to the findings of the trial magistrate, which unfortunately impacted the entire judgment for land in Uganda is owned under four (4) different land tenure systems as provided for under Article $237(3)$ .

The respondent, in his plaint pleaded ownership of customary land and adduced oral 25 evidence of inheritance, among others, which was the status quo at the institution of the case as he had pleaded; however, before the judgment was delivered during locus visit, the trial magistrate observed mark stones on the suit land and heard

evidence that the suit land had been titled and that it had also been surveyed which $\mathsf{S}$ brought it under the Registration of Titles Act.

The trial magistrate noted and even referred to this in his findings and judgment. Even though the trial magistrate had not inquired into the new evidence of a certificate of title, the respondent informed the court that he had started the titling

process prior to the institution of the case, which, in my view, the trial magistrate 10 ought to have inquired into.

This is because the disclosure of a certificate of title postulated the customary ownership of the suit land pleaded land by the respondent could have changed in light of the existence of a certificate of title.

I am fortified in this reasoning by what is stated at page 8 of the judgment and also 15 as noted on pages 2-3 of the locus notes, which indicate that the suit land was titled land at the time of the locus visit.

I further reiterate that, as a result of the disclosure at the locus, the magistrate ought to have inquired whether the registration was in respect of the plaintiff as an

- administrator of the estate of his late father or as owner and whether this was the 20 dispute before the court, or whether the title was in respect of the suit land, let alone demand or order that the respondent adduce the title such that the other can object or the court can determine whether it still had jurisdiction or whether the cause of action had changed or not. - Secondly, by the fact that a land titled was adduced during the pendency of a suit 25 which originally was initiated in the lower trial court as anchoring on customary land tenure system, then the changed status ought to have raised red flags regarding the dates for procuring the title and whether the same was done before or after the

institution of the suit. It should have also put the trial magistrate on notice as to $\mathsf{S}$ whether the court was still clothed with jurisdiction.

In my view, it was not enough for the trial magistrate to simply dismiss the pertinent disclosure by observing

- "... the suit was brought before the said process began, it was a customary land by then, therefore what happened thereafter cannot be the business of this court, perhaps the process could have been injuncted had it come to the knowledge of the defendant and court as well, but like I have said above this case has been handled by this court that the land was being owned customarily." - In my view, whenever facts arise before judgement, that may bring the jurisdiction 15 of the court in question or any other point of law that may change the cause of action, it is prudent for the court to inquire into such circumstances to their finality otherwise it ends up rendering an academic of moot decision thus justice may not be served at all. - In a similar situation, I did such circumstances in the case of *Uganda Telecom Limited* 20 vs Warid Telecom(Uganda) Limited, Civil Appeal No. 28 of 2015, where I had this to say;

".... I would consider and agree with learned counsel for the respondent that this appeal is indeed moot and is merely academic as this was the point belaboured upon by my learned brother Musota Stephen J when confronted by similar situation in the matter of An Application For Judicial Review Between Julius Maganda v National Resistance Movement High Court High Court

Miscellaneous Application No.154 of 2010 with the learned judge having this to say;

"Courts of law do not decide cases where no live disputes between parties are in existence. Courts do not decide cases or issue orders for academic purposes only. Court orders must have practical effects. They cannot issue orders where the issues in dispute have been removed or merely no longer exist".

This position was confirmed by the Court of Appeal in the case of Human Rights Network for Journalist and Another v Uganda Communications Commission & Others Miscellaneous Cause No. 219 of 2013. (Emphasis is mine)"

The doctrine of mootness has been considered in various other authorities including the case of Minex Karia vs Attorney General Miscellaneous Cause No.28 of 2015 whit Justice Musa Ssekana while referring to a few other authorities, importantly had this to say;

"Additionally, in the case of Pine Pharmacy Ltd and 8 others v National Drug Authority Misc. Application 0142 of 2016 Hon. Justice Stephen Musota cited Joseph Borowski vs Attorney General of Canada (1989) 1 S. C. R in which it was held that:

""The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is

$\mathsf{S}$

commenced but also when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.""

(Emphasis is mine) 10

> In this case, I would still hold the same view as was held by me in the case of *Uganda* Telecom Limited vs Warid Telecom(Uganda) Limited (above) and similarly by my learned brothers in the cited cases I have also cited above with emphasis that;

The matter before the learned lower trial court became moot immediately at the point of the trial magistrate's decision to dismiss the disclosure that the land in dispute had changed tenure because of the certificate of title. This changed everything; it was a clear departure from pleadings and evidence on record. All evidence adduced by the plaintiff was that he inherited customary land and is the owner of customary land and not titled land. The evidence pointing to the titling of land rendered the entire judgment exercises in futility, an academic process. There was no customary land to give to either party.

I hasten to add that if this court proceeded to determine all the issues /grounds of appeal with respect to ownership of customary land, this court runs the avoidable risk of turning the judgment of this court into a futile academic exercise should it turn out as is in the evidence at locus and judgment already on record that the land is titled.

In the circumstances, I will allow this appeal only on the basis that the learned trial magistrate should have taken into account the subsequent changed events which

- occurred which affected the relationship of the parties given the act that while the $\mathsf{S}$ cause of action before the lower trial court was anchored on the ownership of customary land, this fact changed during the court's own visit to the locus in quo where allegedly there was intimation that the land which the court was visiting was one which was titled and fell under The Registration of Titles Act. - That disclosure affected the rights of the parties substantially requiring either 10 pleadings to be changed or parties to seek withdrawal of the earlier suit and file a new suit given the changed cause of action.

Accordingly, since that was not done, I would by virtue of powers of this court as granted under Section $80(1)(e)$ of the Civil Procedure Act, set aside the judgment and orders of the trial magistrate vide Civil Suit No. 5 of 2013 of the Chief Magistrates' Court of Katakwi at Amuria, delivered on 15 June 2022 by His Worship

Nakoko Isaac, and consequently order a retrial afresh of Civil Suit No. 5 of 2013 of the Chief Magistrates' Court of Katakwi at Amuria before another magistrate.

Being minded that this matter has been in the courts of law since 2013, I direct that

the Chief Magistrate's Court of Katakwi at Amuria fast-tracks its determination 20 within the shortest time possible but in any case in a period of no more than Six (6) months.

## 11. Orders:

- a. The appeal succeeds on the basis of changed cause of action. - b. The judgment and orders of the trial magistrate vide Civil Suit No. 5 of 2013 of the Chief Magistrates' Court of Katakwi at Amuria delivered on 15<sup>th</sup> June 2022 by His Worship Nakoko Isaac are hereby set aside.

- c. A retrial of Civil Suit No. 5 of 2013 of the Chief Magistrates' Court of Katakwi at Amuria before another magistrate, is hereby ordered. - d. Being minded that this matter has been in the courts of law since 2013, I direct that the Chief Magistrate's Court of Katakwi at Amuria fast-tracks its determination within the shortest time possible but in any case in a period of no more than Six (6) months. - e. The costs of this appeal and that of the lower trial court is to be borne by each party.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge 15<sup>th</sup> August 2024

$\mathsf{S}$

$10$