Iduwan v Idakait (Civil Appeal 82 of 2023) [2024] UGHC 733 (1 August 2024)

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0082 of 2023

(Arising from Kumi Civil Suit No. 004 of 2021)

Iduwan Peter ::::::::::: 10 **:::::::::::::::::::::** Appellant

#### Versus

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Idakait Jacob ::::::::::::::::::::::::::::::::::::

(An appeal arising from the judgment and orders of the Chief Magistrates Court of Kumi at Kumi delivered on the 18<sup>th</sup> August 2023 by Her Worship Afoyorworth Winny Epiphany Magistrate Grade One)

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

## Judgement on Appeal

## 1. Background.

Idakait Jacob, herein known as the respondent filed Civil Suit No. 004 of 2021 against Iduwan Peter herein known as the appellant for recovery of 3 gardens of 25 land situate at Akuoro village, Aakum parish, Ongino sub county in Kumi District,

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a declaration that the appellant is a trespasser, permanent injunction restraining $\mathsf{S}$ the appellant from trespassing on the respondent's land, general damages for trespass, interest and costs of the suit.

Th claim of the respondent in the lower court was that at all material times he was the rightful owner of the suit land which had been given to him by his grandmother, the late Ijoot Elizabeth, who raised him together with her son Odea John.

That he later built a home on the suit land and lived all his youthful life there as well as marrying a wife and producing all his children thereon.

That the appellant around 2017 forcefully entered his 3 gardens while holding pangas, threatened him in abuse of his grandmother's and father's generosity, 15 told him to leave that suit land yet the real owners never told him to do so.

That the appellant has no legitimate claim over the suit land and his continued trespass and threats to the respondent over the suit land was illegal and such he should be restrained by court by such judgment and orders as prayed.

The appellant in his written statement of defence denied the averments of the 20 respondent and contended that the respondent was only given one garden of two acres by his late father Odeya John and he utilised the same peacefully without encroaching on anyone's land.

That after sometime the respondent shifted to Kapelebyong in the early 2000 but in 2020 came back to his land and sold all of it to one Odeya Robert who is the 25 son of the appellant.

That the respondent's transactions with Odeya Robert the appellant's son showed that there was no land trespass and or any threatening violence as was

purported by the respondent. The defendant also denied the averment by the $5$ plaintiff that late Ijoo Elizabeth gave the respondent the land.

The trial magistrate heard the matter and upon its conclusion passed a judgment in favour of the plaintiff, now respondent and declared him the rightful owner of the suit land and the appellant a trespasser.

The trial magistrate further ordered the appellant to vacate the suit land and 10 issued an order granting vacant possession of the suit land to the respondent in addition to granting the respondent general damages amounting to Ugx. $3,000,000/=$ and the costs of the suit.

The appellant being dissatisfied with the judgment and orders of the trial court appealed to this court and raised the following grounds; 15

- a) That, the Learned Trial Magistrate erred in law and fact when she failed to weigh properly and in a balanced manner, the evidence on court record as adduced by either side thereby finding from the Respondent. - b) The Learned Trial Magistrate erred in law and fact when she ignored the grave departure, inconsistencies and contradictions in the Respondent's evidence. - c) That, the Learned Trial Magistrate erred in law and fact to state that the grave yards for the Appellant's relatives were not marked or were adjacent to the suit land and that it was a communal graveyard for both the Appellant and the Respondent.

d) That the decision of the learned Trial Magistrate occasioned a miscarriage of justice to the Appellant.

#### 2. Duty of the $1^{st}$ appellate court. $\mathsf{S}$

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

own conclusion as was held in Father Nanensio Begumisa and Three Others v. Eric 10 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 15 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 20 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 determining this appeal, the above legal determinations have been taken into 25 account.

# 3. Representation.

The appellant was represented by Counsel Ajum Francis of M/s Opio & Co. Advocates while the respondent was represented by Counsel Opira Ambrose. The

- matter proceeded by way of written submissions which have been duly $\mathsf{S}$ considered. - 4. Determination. - a) Grounds 1,2,3 & 4.

These grounds will all be determined together because the appellant's submissions on the same went similarly the same way. 10

$i.$ Submissions:

Counsel for the appellant submitted that the appellant disagreed with the trial magistrate's finding that the plaintiff, now respondent is the rightful owner of the suit land because she did not evaluate all the evidence on record in regards to

15 ownership.

Counsel submitted that it is trite law that a party has the obligation of proving facts which he or she needs to establish for success in his or her case, and that the burden of proof in civil cases lies on the party who asserts the truth of such facts but would fail if no evidence at all were given to the required standard of

20 proof of the asserted facts as provided for under sections 101-103 of the Evidence Act.

That despite the Appellant's testimony that he inherited from his father Odeya John in 1973 and had since been utilizing the suit land with his late wife liangolet Rose for cultivation and settlement and had even buried his loved ones thereon which graves were confirmed by the respondent and at locus, the trial magistrate in her judgment came up with her own conclusions refuting the same by stating that the grass thatched home of the defendant/Appellant which was found on the suit land was just recently built about four (4) years ago with the defendant

only moving recently to the suit land which to her corroborates the assertion by $\mathsf{S}$ the plaintiff of his son being evicted from there in 2017.

Counsel additionally submitted that the respondent in his claim against the appellant contended that he lived on the suit land with his family without any disturbances and even buried some of his children thereon and that the defendant/ appellant around 2017 trespassed and entered into the suit land and demolished the entire plaintiffs grass thatched houses.

But that, however, during locus and as noted by the trial magistrate there were found neither any graveyard of the plaintiff nor traces of the alleged demolished homestead. That the finding of the trial court at locus clearly demonstrated that

the respondent's plaintiff's claim was not based on any facts and thus the 15 conclusion of the trial court otherwise should be reversed on appeal by this Honourable court.

Counsel for the respondent in reply submitted that the testimony of PW2 show that the suit land was gifted to the plaintiff by her biological mother late ljoot Elizabeth and that the same piece of evidence corroborated the plaintiff's own statement during the trial which the trial court found believable and credible as

opposed to the Respondent evidence.

That the trial court rightly observed in its judgment that there was no document to reinforce the narration touted by the Respondent that he inherited the suit land from his late father as even there were no minutes of any clan meeting

25 shown by the respondent to show that was the owner of the suit land.

That basing upon the analysis of court, it was clear from the last paragraph of the judgment, that the trial magistrate upon interaction with PW2 at the locus, found her to be of good memory and alert about her surroundings and the court

believed her as a truthful and steadfast witness who was well aware of past $5$ events regarding the Suitland.

Counsel thus contended that from the above it should be found that the Learned Trial Magistrate properly evaluated the evidence and correctly found that the suit land belonged to the plaintiff.

- Counsel additionally submitted that ground 3 of the appeal should be found by 10 this appellate court as being too general contrary to Order 43 rule 1 and 2 of the Civil Procedure Rules and consequently the same the same should be struck off with costs. - ii. Evidence on record.

This is the summary of the evidence on the trial court record. 15

PW1, Idakait Jacob testified that the suit land was gifted to him by his grandmother ljoot in the presence of her son Odea John and other family members. He told court that he was born on the suit land by his mother Kolori Agnes and that when she later got married, his grandmother late Ijoot Elizabeth took him in and raised him up like her own child.

That he grew up on the suit land using the same for cultivation and that later his grandmother gave the same to him and he built his home, sired children therein and even those that died were buried thereon.

He told court that he lived on the suit land all his life without any disturbances until 2017 when the appellant trespassed on the same demolishing all his three 25 grass-thatched houses while he was in Kapelebyong.

In cross-examination he stated that he sold a different piece of land to one Odea Robert and that the suit land was one which had two and a half gardens. He further stated that he was given the three gardens in 1970. PW2, Kolori Agnes the mother of the respondent and aunt to the appellant $\mathsf{S}$ testified that she gave birth to the respondent while at home and later when she got married she left him under the care of her mother.

That in 1970, her late mother convened a meeting attended by her late her biological brother Odea John who was also the father to the appellant, the late Samson Omalinga and others who are now dead.

That in that meeting her mother ljoot Elizabeth gifted the respondent with 3 gardens measuring approximately two (2) acres and upon the respondent reaching majority age he began to cultivate the said land and later constructed two grass thatched houses thereon.

That her late mother and her late brother Odea John married for the respondent 15 a wife and he produced 7 children on the suit land but two the children died and were buried there.

During cross-examination she stated that her son had two more gardens in the place and he sold one garden to Odea Robert and that the garden sold to Odea Robert is the one where the respondent's home was.

DW1 Iduwan Peter testified that the suit land belongs to him as he inherited from his father called Odea John in 1973 upon his demise. That his father had also inherited the same from his father Okwii and that since 1973 he had been utilising the same; with his late wife Ijangolet Rose for cultivation and settlement. The suit

25 land had grave yards of his people such as those of his grandchild Kaala Hellen buried in 2010 and Odea John his grandson buried in 2011.

That the respondent had never utilised the suit land nor settled on it but had his home on the garden which he sold to Odea Robert.

During cross-examination by the respondent, he stated that they have lived $5$ together for more than 62 years and the respondent was given his own portion which he sold.

That the land given to the respondent was for Odeya Robert and was given to him by Okunt and Odeya John.

DW2 Ebwarait Benjamin Akbwal testified that the appellant inherited the suit 10 land from his father Odea John in 1973 and since then he has been utilising it with his late wife Ijangolet.

During cross-examination he stated that the land sold by the respondent is the one that his uncle had given him.

- Other pieces of evidence on record included a copy of the sales agreement dated 15 7<sup>th</sup> March 2020 tendered in by the appellant and marked as DEX1. It is an agreement between Idakait Jacob, the respondent and a one Odeya Robert, the son to Iduwan Peter, the appellant for one garden at a consideration of five cows and a sum of Ugx. 1,000,000 only. - The trial court also visited locus and made its report. In its report, the trial court 20 states that it found that the piece of land where the respondent's home was first constructed had an old pit latrine still standing on it with spots of the respondent's old grass thatched houses being visible and that this piece of land had a clear boundary and was sold to Odea Robert. - It further noted that it was on this piece of land where the graves of the 25 respondent's family were seen and not on the suit land while the appellant on the other hand had three graves on the suit land which included those of his wife who died in 2021 and two graves of his grandsons who died in 2010 and 2011, respectively.

The trial court further found that the respondent did not show court any of the $5$ alleged three (3) grass thatched houses he claimed the appellant had destroyed and that the suit land was 1.5 acres.

## iii. Court's Assessment and findings.

The respondent's claim to the suit land is that he got the suit land as a gift intervivos in 1970 from his grandmother Ijoot Elizabeth who raised him. Per his 10 pleadings and testimony this land is 3 gardens measuring about 2 acres. That on this land he built a home and also raised a family thereon with some three of his children who died even buried thereon. These facts as pleaded are essential in the determination of this matter.

- The appellant on the other hand claimed that he inherited the suit land being one 15 garden measuring 2 acres from his father Odea in 1973 and that he had since used it for cultivation and settlement and that the same had graves of his people. He further claimed that the respondent sold the land that was given to him by the late Odeya and remained with no land in the area. - As can be deduced from the evidence above, the respondent maintained that he 20 had lived on the suit land without any disturbances till 2017 when the appellant destroyed his houses.

At locus, however, he was not able to show the court where his old homestead on the suit land was or the houses he claimed had been demolished by the

appellant. 25

> He also was not able to show court the graves of his children which he claimed were on the suit land.

> During cross-examination he admitted that where his home initially was there was now a pit latrine which fact was also admitted by his mother PW2.

At locus the trial court found that the piece of land where the respondent's home $\mathsf{S}$ was first constructed indeed had an old pit latrine still standing on it , had spots of his old grass thatched houses were visible, had the respondent's graves and this piece of land had a clear boundary and had been sold to Odea Robert.

Based on the locus findings alone, it is clear to me that the respondent's claim to the suit land was not proved as his claim as seen from his pleadings and evidence 10 was to the effect that he grew up on the suit land and that he had his home as well as graves of his people yet the fact from the locus show that his existence was on land which he had sold to Odea Robert and not on the suit land.

Accordingly, since the respondent failed to prove his existence on the suit land, the alleged graves being his primary to the suit land, then the trial magistrate 15 should not have found that he had proved his case.

The appellant on the other hand proved his occupation of the suit land since 1973 and had his people buried thereon with his home even found by the trial magistrate existing on the on the suit land though the trial magistrate claimed, without any evidence at all that the same was only four years old.

Further, I note from the evidence on record that the appellant was further able to show the trial court three (3) graves of his grandchildren on the suit land and even though again though the trial magistrate claimed that the said graveyard was a communal one, no evidence to that effect was led in regard to the graveyard being a communal one or a family cometary as was claimed by the respondent who even failed to identify any of his alleged people who died and were buried therein which fact was even properly noted by the trial Magistrate.

Consequently, while I find that as a matter of fact that indeed the respondent indeed was given land by the late Ijoot Elizabeth in the presence of the appellant's

father, this gifted land was sold by the respondent to Odea Robert, the son of the $5$ appellant.

The respondent tried to introduce a new claim during cross-examination that he had more land other than the one he sold to the Odea Robert but failed miserably to prove such a claim.

- In any case his pleadings were in regard only to the land given to him by ljoot 10 Elizabeth and did not make mention of the land he sold to Odea with this belated change of heart coming up because the appellant had introduced the same in his Written Statement of Defence and the respondent was cross-examined on the same. - Also even where his mother who testified as PW2 claimed there were two more 15 gardens that the respondent had in the said place, this claim was not proved or supported by any independent evidence for while he respondent had initially stated that the suit land was made of three (3) gardens of two (2) acres, during cross-examination he contradicted himself when he changed and told court that the suit land was one of a double and a half and not three gardens as he had $20$ - earlier claimed.

It should be noted that the respondent's claim to the land was that the same was given to him as a gift inter vivos by the late Ijoot Elizabeth. He did not lead any other evidence of ownership of any other piece of land in Akuoro village and having failed to prove that the suit land was one of those given to him by the late 25 lioot Elizabeth, it was erroneous for the trial magistrate to enter judgment in his favour based on the uncorroborated evidence of PW2 which the court's locus in quo visit showed that the respondent had no real attachment to the suit land given the act that he had no homesteads and graves on the same but on the land he had sold. 30

The trial court should thus have properly evaluated the evidence on record which $5$ was adduced by the parties as is and if she had done so, she would have found that the respondent had not proved his case on a balance of probabilities and should have dismissed his suit accordingly.

Given the fact that she did otherwise, it is my finding that her decision occasioned a miscarriage of justice to the appellant. This appeal accordingly has merit and 10 would succeed on all grounds.

5. Conclusion.

This appeal having been found to have merit and is successful, the following orders thus are issued.

- a) This appeal succeeds on all grounds. 15 - b) The judgment and orders delivered on the 18<sup>th</sup> August 2023 by Her Worship Afoyorwoth Winny Epiphany, Magistrate Grade One in Civil Suit No. 0004 of 2020 in favour of the Respondent, are set aside and is substituted with judgment in favour of the Appellant. - c) The subject Three (3) gardens of land situate at Akuoro village, Aakum 20 parish, Ongino sub county in Kumi District is hereby declared to belong to the Appellant. - d) The Respondent is hereby declared a trespasser on the suit land. - e) A permanent injunction restraining the Respondent and or any person deriving any legal right from him is hereby issued retraining him/them from further trespassing on the Appellant's land. - f) Due to the nature of this dispute in that it involves close relatives, **NO** order for general damages and or interest thereto for trespass is issued,

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g) The Costs herein and that in the lower trial court below are awarded to the appellant.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

1<sup>st</sup> August 2024

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