Mwa v Komakech (Civil Appeal No. 030 of 2010) [2014] UGHC 109 (4 August 2014)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CIVIL APPEAL NO. 030 OF 2010**

(Arising from the Judgment and Order of His Worship Kwezira Amos Chief Magistrate of Kitgum magisterial area dated 10th May 2010)

(Arising from the Order and Decree of the High Court before His Lordship Justice Remmy Kasule in Misc. Application No. 092 of 2010)

MWA CHARLES **VERSUS**

KOMAKECH ROBB WILLIAM::::::::::::::::::::::::::::::::::RESPONDENT

**BEFORE HIS LORDSHIP JUSTICE WILSON MASALU MUSENE**

## **JUDGMENT**

The Appellant, Mwa Charles, being aggrieved and dissatisfied with the Judgment and Orders of His Worship, Amos Kwezira, Chief Magistrate Kitgum, appealed to this Court in a Memorandum of Appeal dated 25th October, 2010.

The Respondent is Komakech Robb William. The grounds of appeal were:-

to a wrong conclusion. i 1. That the trial magistrate erred in law and in fact when he failed to properly evaluate and appreciate the documentary ce coming evidence adduced by the Defendant^el^MJ^ true copy of the Original

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- 2. That the learned trial magistrate erred in law and fact by $\overline{on}$ the contradictory evidence $\overline{of}$ the Plaintiff/Respondent and his witness. - 3. The trial magistrate erred in law and fact in disregarding the Appellant and his witnesses overwhelming evidence on record and instead, substituted it with his own hypothesis, speculation and conjecture and acted against the weight of evidence.

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4. That the trial magistrate acted with bias in favour of the Respondent and failed to visit the locus in quo, hence occasioning a miscarriage of Justice.

The Appellant was first represented by $M/S$ Judith Oroma, while the Respondent was represented by Mr. Moses Oyet.

The brief background to this case is that the Plot in dispute is situated on the southern slope of Guu Hill in Kitgum Town Council. And that it originally belonged to Cento Maxwell Ocen. The Appellant's case was that on 8.8.2000, he entered into a sale agreement with Ocen Maxwell in respect of the Plot in dispute. He added that in 2001, he went out of the country, leaving one Olanya Willy in charge and that upon return in 2004, he embarked on the processing of the Land Title in respect of the Plot in dispute. The Respondent's case on the other hand was that he bought the plot in dispute from one Olanya Willy on 28.01.2002. And that the said plot was sold to Olanya by one Maxwell Centoo on 04.06.2000. The respondent's case was that I Certify that this is the appellant was a witness to the sale.

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**Registrar Gulu High** Court

Before dwelling on the grounds of appeal, I emphasise or re-state the position of the law regarding the first appellate court. This has been stated in a number of cases including Pandya V. R. (1957) E. A. 570. It is the duty of the first appellate court to review the evidence on record and draw its own conclusions of facts, making allowance for the fact of advantage of the trial magistrate who saw the witnesses as they testified (Demeanour). The case quoted by Mr. Moses Oyet for the Respondent, notably Non-performing Assets Recovery Trust Vs. Nkabula & Sons Ltd. Civil Appeal No. 34 of 2005 of Court of Appeal, (2007) $\overline{O}$ Vol. 1 HCB is also in point.

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I add that under s. 106 of the evidence Act, the burden of proof in Civil Proceedings is upon the person who assumes to have knowledge of the facts.

Furthermore, section 110 of the same Act provides that the burden of proof is on the person claiming. I shall now deal with the grounds of appeal one by one. The 1<sup>st</sup> ground was that the trial magistrate erred in law and fact when he failed to properly evaluate the documentary evidence adduced by the appellant. According to M/S Judith Oroma for the appellant, DW1's testimony produced a sale agreement dated 18.08.2000. $\mathbf{It}$ indicated the land in question was 20 metres in width and 60 metres in length, sold at the sum of shs. $650,000=$ . She added that the document was witnessed by mzee Tito Okullo who put a And that instead, the trial magistrate in his thump-print. judgment dwelt on the issue of divergencyhabinishints and

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IISIGON

formalities of the thump-print which affected appellant's case. Mr. Moses Oyet for the Respondent on the other hand submitted that during the trial, three sale agreements were presented to He added that the Respondent, who was the plaintiff, court. presented an agreement dated 28.01.2002, whereby he bought 5 the land in question from Olanya Willy. He added that the second agreement dated 4.06.2000 (annexture B) revealed that Olanya Willy purchased the said land from Cento Maxwell, and that the appellant was a witness. Mr. Moses Oyet for the Respondent wondered why the appellant who was a witness to $\Gamma$ the sale on 4.6.2000 went ahead to allegedly buy the same land on 18.06.2000?

I have carefully studied the record of the proceedings in the lower court. The respondent, Robb William Komakech was the plaintiff and he testified as PW1. On page 4 of the proceedings, the $15$ Respondent stated that when he was buying the land in question, the defendant was present and was working in his house (plumbing works).

On page5 of the proceedings, the plaintiff tendered in an agreement between Olanya and Centoo Maxwell, which was witnessed by among others, the defendant and Tito Okullo. The agreement was dated 04.06.2000. PW2 was Tito Okullo and he confirmed the land in dispute belongs to the plaintiff (Respondent) His testimony is on page 7 and part of it is as follows:-

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testimony of PW2 was corroborated by PW3, Oneka Hamza Zamal <sup>i</sup> And lastly was PW4, Olanya Willy who emphasized that in June 2000, he bought the land in dispute from Ocen and that it is the very land he sold to the plaintiff ( omakech). PW4 s testimony was that when he bought from Ocen Maxwell, the defendant Mwa Charles was present, and wrote the sale agreement. And although the 1st defendant, Mwa Charles stated in the lower court that the agreement was forged, PW4 insisted that he had no grudge against the defendant. PW4 on page 9 of the proceedings is as follows:-

*" The defendant was my O. B, at school. We work in the same town. We used to stay in one house and also operate one workshop. I have no ill feelings against the defendant.......................... "*

And the last piece of evidence from PW4, which impressed me and which was not challenged by Mwa Charles the defendant during cross-examination was on page 11 of the proceedings (top). He testified: - *" The land in issue belonged to Maxwell I bought it and sold to plaintiff. I was surprised to hearthat the plot was bought by defendant.\_\_ The defendant \_and Maxwell want to cheat the plaintiff.\_\_ The—defendant is greedy and likesfree things. He reached a point ofsqiji the plaintiff and myself, died: There is a*

## *plaintiff brother. plot" ~ -----Plailrttff\_Jmprisoned Maxwell's the plaintiff of the*

PlaintiffJ<sup>r</sup> PaSSage from the testimony of PW4 in support of the P^/Respondent summarizes it in my view, the oxy of the plaintiff (PW1) was consistent throughout together Wit his witness, PW2, PW3 and PW4. Even DW1 in his ny on page 13 of the proceedings stated that when he earnt that the land in dispute had been sold to the plaintiff by Olanya Willy, he told Sisto, the brother of plaintiff to bring Olanya and Maxwell for talks. And that a few days later, he was sued. It is my view therefore and considering what I have outlined above that the trial magistrate properly evaluated the evidence and came to the rightful decision that the land in dispute was properly acquired by the plaintiff. The trial magistrate in the circumstances never erred when he treated the two thumbprints of Mzee Tito Okullo with suspicions because the said Tito Okullo was a witness to all agreements. And during the scheduling conference, both parties agreed that Centoo Maxwell and Ocen Maxwell were one and the same person who was the original owner of the land in dispute. And I entirely agree with the submissions of Counsel for the Respondent that the trial magistrate properly found dishonesty on the part of the appellant and his witnesses, particularly Ocen Maxwell whoey fed to deny his own name.

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National Insurance Corporation vs. Mugayi & Co. Advocate, Court of Appeal Civil Appeal No. 14. Of 1984, it was held that a Court of Appeal should not interfere with the exercise of the discretion of the Judge, unless it is satisfied that the Judge in exercising his discretion has misdirected himself on $\mathcal{L}$ the matter and arrived at a wrong decision or if the conduct is manifestly wrong.

In the circumstances of this case, and as summarized above, I find and hold that the trial magistrate properly evaluated the evidence and considered the documentary evidence adduced by all the parties.

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The first ground of appeal therefore fails.

The second ground of appeal was that the trial magistrate erred in law and fact by relying on the contradictory evidence of the plaintiff/Respondent and his witnesses. $M/S$ Oroma Judith for the appellant submitted that PW2's testimony on page 8 of the proceedings was that he was outside the house when Olanya sold the land to Komakech. The other apparent contradiction which Counsel for appellant pointed out was that whereas PW2 testified that Olanya bought the land from Maxwell at shs. $550,000=$ that PW4 Olanya's testimony was that the sale was shs. 500,000=. Counsel for the Respondent on the other hand submitted that the documents relied upon were properly scrutinized. And further that the issue of Maxwell Ocen who sold to Olanya and then Olanya to Komakech was not challenged by the app pellaft.

As far as I am concerned, the only apparent contradiction was with regard to how much Ocen Maxwell sold to Olanya, whether shs. $550,000$ = as stated by PW2 or shs. $500,000$ = as stated by PW4. In my view, that was a minor contradiction which did not occasion any miscarriage of Justice as the substantive matter of fact was that Ocen Maxwell sold to Olanya on 04.06.2000, and the Respondent, Komakech bought from Olanya Willy on 28.01.2002. That was the substantive point which never challenged by the appellant. The difference in sale price of shs.50,000= could be explained by lapse of time of forgetfulness on the part of Pw2, mzee Okullo Tito. In the premises and since I have already found and held that the testimony of the plaintiff now Respondent and his witnesses were consistent, in ground (1), then I hold that ground No. 2 of appeal cannot stand as the minor contradiction about how much Olanya paid to Ocen Maxwell was minor. It did not affect the substance of the case. So ground No. 2 of appeal also fails.

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The third ground of appeal was that the trial magistrate relied on his own hypothesis and opinion and disregarded the appellant's Counsel for the appellant submitted that the trial evidence. magistrate concentrated on his personal feelings other than the law, particularly when he concluded that appellant had not proved his case. Mr. Oyet Moses for the Respondent reiterated that the trial magistrate had a discretion to evaluate the sevidence a true copy of the

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and come up with his own conclusions. I have equally analyzed the evidence of the appellant/defendant in the lower court.

The defendant, DW1 emphasized on page 13 of the proceedings that he bought the land in question in the presence of Tito Okullo and other witnesses including Lamuno Jane. But as already noted, Tito Okullo was the witness of the respondent now who on page 7 of the proceedings was emphatic as to how the land in dispute belongs to Komakech who bought from Olanya Willy in his presence. The same Tito Okulllo witnessed the sale ( between Ocen Maxwell and Olanya earlier in 2000. The fact that Tito Okullo, who was alleged to be a witness of Charles Mwa turned to testify against him costs a lot of doubt in Charles Mwa's case. Even his other witness, Lamuno Jane (Dw3) on page $15$ 15 of the record of lower court did not satisfy this court. She stated that whereas she was a witness to the sale agreement between Ocen Maxwell and defendant, that she could not remember whether the agreement was typed or hand written. This court wonders how Lamuno Jane, an adult of 40 years $\mathcal{F}$ could not remember whether the agreement was reduced into writing or not if at all she was present.

DW3, Lamuno Jane also added that she was surprised that Tito Okullo and Olanya were testifying against their friend Mwa. A court of law is a serious place where witnesses swear to tell the truth and not where they merely go to test min favour of friends. a true copy satisfield that the premises, equall $\mathbf{I}$ am the In 2 3 JAN 2015 9

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## Plaintiff/Respondent now

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proved his defendant/appellant on the balance of probabilities. case against the And I cannot fault the conclusions reached by the trial Chief Magistrate. I therefore do hereby reject/dismiss the third ground of appeal.

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The fourth and last ground of appeal was that the trial magistrate acted with bias in favour of the Respondent and failed to visit the locus in quo, thereby occasioning a miscarriage of Justice. Ms Oroma Judith for the Respondent submitted that the trial magistrate made no effects to ascertain the size of the $\sqrt{C}$ land in dispute and that a voidance of visiting locus in quo created loopholes and occasioned in justice to the appellant. Mr. Oyet for the Respondent on the other hand submitted that witnesses were called by either side and they were heard. And that in such circumstances, there was no bias. He added that since the location of the plot in dispute was agreed on at the scheduling conference, there was no need to visit locus in quo. In my view, the issue before court was who was the rightful owner of the plot in question. Since all the parties were in court, vendors, buyers and witnesses, and sale agreements, then it was not vital to visit the locus in quo. Failure to visit the locus in quo in the circumstances did not occasion any miscarriage of justice. Ground No. 4 of appeal also fails. I Certify that this is

In conclusion therefore, having found and held that the grounds of appeal have failed, I do hereby dismiss? this appeal

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with costs. The judgment and orders of the trial chief magistrate are hereby upheld and confirmed. It is so ordered.

**Wilson. Masalu Musene Judge 04/08/2014**